This appeal is from a final judgment of the district ctiurt of Fayette county, upon a forfeited bail bond, entered into by the appellants as the sureties of Micajah Clark, who was charged with the murder of J. C. Alford in 1859. The accused was arrested before indictment found and lodged in jail; he was brought, by writ of habeas corpus, before the judge of the district court of the county shortly after his imprisonment, which judge, in vacation, granted him bail. The appellants were his sureties in that bail bond. At the next succeeding term of the court the accused was indicted for murder. The accused failing to appear at that term when duly called, a judgment, nisi, was entered against the sureties, and scire facias issued against them to show cause, at the following term, why the judgment should not be made final. They responded to the rule at that term, setting up as an excuse for the failure of the accused to appear, that after the indictment was found against him a capias had been issued by the clerk immediately upon the filing of the indictment; that the accused was arrested by the sheriff or his deputy by the authority of that capias, and, while in the custody of the *616sheriff", the prisoner escaped, and so they conclude they are not liable upon the bond for his appearance. We cannot so interpret the law. /
Though the law does provide for the issuing of a capias upon the filing of an indictment, in every criminal prosecution, in its general terms, yet, in the same law which authorizes its issuance, it excepts cases where the defendant is already in custody or on bail. The issuing of the capias, then’, in this case, and his arrest under it by the sheriff", and his escape from that illegal duress by the sheriff", does not release or exonerate the sureties from their liability on the bail bond. Such a defense does not conduce to show that, by the act of the sheriff!, it was placed beyond their power to exercise the same control over the body of the defendant as they could exercise over him when, by their confidence and trust, they had entered with him into the obligations of the bail bond. The stipulations of that bond are, that the defendant shall appear at a particular term of the court, continue in attendance from term to term, and from day to day, until his final acquittal or conviction and sentence. This is the obligation of the parties to the bond. The issuing of the capias by the clerk was a work of supererogation. The only way in which the sureties can relieve themselves from their obligation is to surrender the accused in term time to the sheriff", whose duty it is immediately to take him before the court, where he may forthwith give other bail; or, they may surrender him in vacation by making a written affidavit of such intention, and obtain a warrant for his arrest, which is the only authority of a sheriff' to interfere-with the personal liberty of any party on bail.
The ruling of the court below, upon the demurrer to the response of the appellants, was right, and the judgment therefore will not be disturbed. It is
Aeeibmed.