State v. Scott
20 Iowa 63
Iowa
1865
Check Treatment
Dillon, J.

i. bail -,d?Fen?e'. I. Favorably disposed toward the defendant’s case, we yet see no way in which, consistently with rules of law, we can reverse the judgment against him. Cates never appeared in court to answer the charge, and the defendant’s undertaking was duly for- ’ *66feited under the statute. Rev., § 4990. As early as the April Term, 1862, defendant’s liability thus became fixed, unless he can show some legal matter in discharge of it. Cates was not drafted or forced against his will into the service, but voluntarily entered it after the date of the bond. Whether he entered before or after he left the State of Iowa, and whether he entered the United States service, or that of the State of Missouri, does not (though the witness states it to be the latter)-very distinctly appear in the record, and is not essential. As Cates’ act was wholly voluntary, it may admit of some doubt whether, if Scott had arrested him before forfeiture, and been prevented by the action of the military authorities from bringing him back to Iowa for trial, it would have been a defense to an action on the bond. Harrington v. Dennie, 13 Mass., 93; Commonwealth v. Johnson, 3 Cush., 454.

r'crltto¿of' the court. But however this might be, it is clear that, often'forfeiture, these facts would not discharge the liability upon the recognizance. The only provision of the statute that a^s a under such circumstances, is section 4994 0f jRe Revision. By this it is enacted that, “if, before judgment is entered against the bail, the defendant be .surrendered or arrested, the court may, in its discretion, remit the whole or any part of the sum specified in the undertaking.” That is, if the bail produce the accused in court before final judgment upon the bond, or, if he shall be arrested by its officers, the court has a discretion .to relieve the surety from his forfeited obligation. The court may do so. Its discretion may be exercised according to circumstances. If there has been no great delay and no prejudice thereby, if the State witnesses can still be had, and the surety has been vigilant and actually, produced the principal, the court will, and ordinarily should, discharge the bail. It would, however, require a very strong instance of abuse, to justify this court in *67interfering with the discretion which the law has wisely confided to a tribunal necessarily familiar with all of the special circumstances attending and characterizing the particular case. But as Cates was not arrested in this State by officers having the power to hold and keep him, and no steps were taken under the provisions of the act of congress in relation to parties charged with crime, and as he was not surrendered or produced in court by the bail, the case obviously does not fall within the remedial provisions of the section (4994) referred to.

Inasmuch, therefore, as the surety after forfeiture cannot, as a matter of right, be discharged on surrendering the principal, it logically and necessarily follows, that the mere fact that he was prevented, by whatever cause, from making such surrender, will not exonerate him. Commonwealth v. Johnson, supra.

„ .. of principal. II. It was also (under an amended answer alleging this fact), shown on the trial, that some time after the second arrest of Cates in 1864, he had died. This was re}ie(j upon by the defendant as a discharge of his undertaking. But as his bond was forfeited in April, 1862, it is evident that the death of the principal more than two years thereafter would not be a defense to the action.

It may be that the circumstances of the case make it a hard one upon the defendant, but the courts cannot relieve him without overturning established principles of law. The relief must be had, if at all, from another department of the government.

Affirmed.