It will be observed that a forfeiture nisi was *199taken in this case before the capias was ordered, upon which Gage was apprehended the second time, upon the charge preferred against him. It is contended that this apprehension of him by the Sheriff, placed him in the custody of the law, and by depriving his bail (Chambless) of the power of control over his person, relieved him, the bail, from responsibility upon his recognizance.
It cannot be supposed that his being taken upon a capias by the Sheriff, would be more efficient to produce that result, than a surrender of Gage by his bail, at that time, to a competent Court would have been. Putting it, then, on ground so favorable as that for the plaintiff in error, the question may be asked, would a surrender of Gage made by his bail, Chambless, to a competent Court or officer, at any time after the forfeiture nisi had been rendered on the recognizance, operate as a release of the bail’s liability; or, in other words, constitute a defence to the scire facias ? This has been decided in the negative by this Court in the case of the State v. Warren et al. (17 Tex. R. 283.) To admit the proposition of plaintiff in error would be making a defence arise out of facts subsequent to the default, whereas the defence or excuse must exist at or before the time of the default. The whole question is fully discussed, and so well defined, in the case cited, that it is only necessary to ¿refer to it in support of the view here taken. It is not, however, intended to be intimated that the plaintiff is regarded as occupying as favorable a position, in every respect, as if Gage had been surrendered to the Court by his bail after default. Whether he does or not need not be critically examined into, as it is immaterial m this case.
We are of opinion that the Court did not err in sustaining the exceptions to the plea of plaintiff in error.
Judgment affirmed.
Later in the session the following proceedings were had:—
Roberts, J. Chambless was bail for Gage and the recognizance was forfeited. Upon error to this Court judgment was affirmed.
A remission of the forfeiture (not of the costs) in favor of Chambless is produced in this Court after judgment, under the great seal of the State, and signed by Governor Pease.
Under the Constitution and laws this releases the party Cham*200bless from the recovery of the forfeiture here adjudged, excepting the costs, of both Courts. (Hart. Dig. page 66 and Art. 1417.) The Clerk will make an entry of release, and let his mandate conform to the judgment so modified.