One Andrew J. Walker was indicted in Galveston county for the murder of Green Butler, at the May term, 1872, of the Criminal District Court of the county of Galveston. The case was transferred, first to the District Court of Chambers, and from that court to the District Court of Liberty county. While the cause was pending in the District Court of Chambers county, Walker applied for bail, and it being denied, he applied to the Court of Appeals, and, upon the hearing, tins court reversed the judgment of the district judge, and granted him bail in the sum of $15,000. On the seventh day of September, 1878, the District Court of Chambers county ordered that the said Walker be committed, for safe keeping, into the custody of 0. Jordan, sheriff of Galveston comity, which was accordingly done.
Walker being in the custody of the sheriff of Galveston county, the mandate of the Court of Appeals was 'directed to him; and by tins mandate he was required, “upon the presentation of a good and sufficient bail bond in the sum of 815,000, with good security, conditioned as the law requires, for the appearance of the said Andrew J. Walker at the proper court to answer the charge preferred against him by indictment for murder, to release the said Walker from custody.” He (Jordan) was further instructed to be satisfied with the solvency and sufficiency of said bond, and to indorse his approval thereof thereon, *58and transmit it to the clerk of the District Court of Chambers county, to be there filed in the papers of the case, etc.
The said Andrew J. Walker presented to Jordan a bond with the appellants as his sureties in the amount and in proper form; which was accepted, approved and forwarded to the clerk of the District Court of Chambers county, and by him filed with the papers in the case. Walker was in jail at the time the bond was accepted and approved by the sheriff, Jordan, and was not liberated in fact by him, for the reason that the sheriff, Jordan, had in his possession a copias for the arrest of Walker upon a charge of murder in Brazos county. Having accepted and approved the bond in this case, to wit: The State v. Walker, charged with the murder of Green Butler, he, while Walker was yet in his custody, arrested him upon the copias from Brazos. The bond in the Butler case was delivered to the sheriff on the 14th day of November, 1818. The sheriff held Walker in his custody, in the jail at Galveston, until he was turned over to the sheriff of Brazos county, which occurred on the same day, to wit: the 14th day of November, 1818. From thence he was taken by the sheriff of Brazos, and placed in the jail of that county; from which he made his escape on the 11th day of May, 1819.
At the September term, 1819, of the District Court of Liberty county, the case of The State v. Walker, charged with the murder of Green Butler, was regularly reached and called for trial. Walker not appearing, a judgment nisi was rendered against him and his sureties on the bond, for the amount of the penalty of the bond. At the March term, 1880, the appellants, Stafford and Allen, appeared, and for answer to the scire facias pleaded in substance and effect: “That the bond was inoperative and not binding, because the principal therein, Walker, had not been released thereunder from custody; *59that he had never been enlarged or set at liberty, nor placed in the custody of his sureties by virtue of said bond; that at the time of its delivery to, and approval by, the sheriff, he was held, and thereafter was continuously held in custody-—• confined in jail—and while so held by the State of Texas, acting by its proper officers, on the 11th day of May, 1819, he broke jail and made his escape; for which the appellants were not hable.” At the September term, 1880, the District Court, upon the law and facts, gave judgment final against the appellants and overruled a motion for a new trial; from which judgment the appellants prosecute their writ of error to this court.
If the answer of appellants presented a good and valid defense to the action, the evidence fully sustaining the same, there was" error in the court below in rendering judgment for the State. The learned counsel for appellants, in order to demonstrate the error of the court, formulates the issue into this proposition: ‘e When a bail bond is accepted and approved by the proper officer of the State, if the principal therein is not enlarged and set at liberty in pursuance of the bond, but is held in confinement in jail by such officer,, or if, having been set at liberty in pursuance of such bail bond, whereby he is put into the custody of his sureties, they are thereafter deprived of the custody of the principal by the State, acting through its proper officers, and he escapes therefrom, the bond, in either case, imposes no obligation on the makers, and is not subject to forfeiture for non-appearance of the principal.”
This is a very ingenious and plausible proposition. It stands, apparently, remarkably near the proposition made by the facts in this case; but upon a closer view it will be seen that there "is quite a space between them. This proposition approaches very nearly the correct legal proposition. If in the first paragraph it had contained or alleged the fact that the principal was held by virtue of the *60copias or mittimus under the same charge, or if it had , stated in the second clause that the principal was held by the State at the time of the forfeiture, we would not be disposed to question the conclusion that the liability of the sureties was discharged.
In this case, however, neither of these facts enter into its make-up. The bond was taken, approved and sent to the clerk of the proper court by the sheriff; and he states that he held the principal, not by virtue of the mittimus, but the copias from Brazos. At the time of the forfeiture the principal was not held by the State at all; he was perfectly free, and there was no obstacle in the way of his appearance, from any cause whatever. If the principal had been held in custody by virtue of the mittimus from Chambers county, or if released and arrested again on the same charge by the State or its authority, these acts would be inconsistent with and a repudiation of the bond. Again, if, at the time of the forfeiture, the principal was in the , custody of the State upon the same or any other charge, these facts would constitute a good answer to that forfeiture thus taken while the principal was held by the State.
■ Counsel for appellant in argument concede that if there had been but a moment of actual liberty given to the principal before the second arrest, the sureties’ liability would have attached. Upon what principle? One of consideration? Suppose the State had held the principal to within a day of the trial—say six months — and discharged him from custody, if this is a question of consideration, should there not have been an apportionment ? The learned counsel for appellant concede in argument that the bond would have been operative if the principal had been liberated for the shortest space of time, though he were again arrested and deprived of his liberty by the State, on another charge, up to the time of his escape. If, then, the State could have legally, without discharge *61of sureties, arrested the principal upon another charge, immediately after their liberating him, the principle must be nice indeed which operates a denial of the State the right to arrest without first liberating the principal. This distinction is so nice that to give it effect there should be a clear and satisfactory reason. The denial of this principle operates not the slightest injury to principal or sureties. The bond was accepted and approved by the proper officer, after having been presented for that purpose, or with the intention that it should be accepted by the officer; and, if the sureties were not willing for it to operate and be in force, they had the right to surrender their principal, though in custody, at any time before the forfeiture.
Let us view this question from another standpoint. The position assumed by appellants is, that, as their principal was arrested by the officer before actual liberty was given under the bond, and the principal escaped, therefore they are not hable. JSTow suppose the second arrest had been made upon a charge of gaming, and an escape had occurred ? If correct, the principle contended for would apply; and the sureties in a murder case, when the principal was held in fact for the misdemeanor, would be released. If the escape was through the negligence of the officer, would he, under the Penal Code, be answerable for an escape in the felony or the misdemeanor ? The facts and circumstances attending the execution of this bond were calculated to lead to the belief that, as far as regards the Green Butler case, the execution of the bond was full and complete; hence the officer would not be held to that degree of care in the custody of Walker, in case of arrest for misdemeanor, as if no bond had been given. We therefore conclude that when the bond was presented by appellants to the sheriff, and accepted, approved and forwarded to the clerk of the proper District Court, it became operative, with full and complete bind*62ing effect, upon the sureties. Nor was it necessary, to give it effect, that the principal should have been liberated at all. All that was required to give it force and effect was, that the minds of the parties met on and agreed to its presentation to, and acceptance by, the officer, and that it was so presented to and accepted by the officer.
Having been thus presented and accepted, to release the sureties of liability the State must re-arrest the principal upon the same charge, thereby repudiating the bond,— the contract,— or the State must have the custody of the principal upon the same or any other charge, at the time the forfeiture was taken, or so near thereto as to prevent the attendance of the principal.
In this case it is not possible to perceive in what manner the State contributed to the failure to attend by the principal. At the time of the forfeiture their principal was at large with perfect freedom to attend and answer the charge, as he was required by his bond. Being at liberty to attend the trial, we are at a loss to understand how the failure to give him actual freedom could have the slightest tendency to prevent his attending.
We have examined with care and great interest the very able briefs of the appellant and the State, and in these will be found a clear and concise statement of the question at issue, with all the authorities that we have been able to find, after a most thorough investigation. These briefs contain such a clear presentation of the point in issue that we suggest that the student of law will derive more satisfaction and information from them than by reading this opinion. After having given the record a most careful examination, we can find no error for which the judgment should be reversed. The judgment is affirmed.
Affirmed.