Porter for the plaintiff, and Vance for the defendants, having submitted the cause without argument, the opinion of the court was delivered by

The only question is whether the testimony furnishes proof of a surrender of Ebenezer Gooch to Strout, the plaintiff, within ten days next after the 17th day of March, 1828. The parties were together on the 24th of March, and the defendant, Ebenezer Gooch, in the hearing of the plaintiff, said he had surrendered ; meaning, undoubtedly, that he had surrendered himself to the plaintiff, in compliance with the condition of his bond. This statement the plaintiff' did not deny ; but in addition to this implied assent to the truth of the"statement made by Gooch, he observed that he had appointed Joel Gooch, (the brother of the defendant,) his keeper. He had no right to do this, unless there had been a surrender; and according to the dates of the above transaction, such surrender must have been after the 17th of March, and before the expiration of ten days next following that day. On these facts, the plea-of the defendants is maintained. We have nothing to do with any other facts in the report, or the controversy about the bond — -a non-suit must be entered.