— I think it perfectly clear that the alleged surrender by bail conferred no authority upon the sheriff or ¡anybody else to take or hold the prisoner. The undertaking *419was a nullity so far as the prisoner was concerned. Strangers cannot be permitted to become bail for a man without his consent. The giving of bail constitutes a contract between the principal and his sureties, and the principal has a right to determine for himself whether he will assume the obligations of such a person or not. They cannot be imposed upon him against his will In the view of the law, a person who has been admitted to bail is at all times in the custody of his sureties, who may break into his house to retake him, and may even arrest him on Sunday, always holding him, as it were, at the end of a string. The controlling power of the bail over the-principal is one which can be exercised at all times and in all places (Nicolls agt. Ingersol, 7 Johns., 156). A prisoner is entitled to choose whether he will give any one else this dominion over him or will remain in the custody of the sheriff. According-to Sir William Blackstone, the security for the appearance of a party arrested is called bail because the defendant is bailed or delivered to his sureties, “ and is supposed to continue in their friendly custody, instead of going to gaol” (3 Blackst. Com., 290).
In the present case it was asserted by counsel upon the argument, and not denied, that the sureties, Messrs. Smith and* Brady, were respectively a stenographer and a clerk in the office of the plaintiff’s attorneys. It would be a mockery to hold that the employes of a law firm engaged: in- prosecuting; a person for an alleged conversion of $70,000 could possibly be “friendly” toward the defendant. On the contrary, ibis evident that they were agents in a scheme to injure the prisoner rather than benefit him by becoming his bail.
A slight effort was made to justify -the giving of this remarkable undertaking by the argument that it was bail by the sheriff instead of to the sheriff, in other words that the sheriff having become liable to the plaintiff’s attorneys for letting the prisoner out of his custody into that of the United States marshal, he thereupon gave this undertaking in his own behalf, and the plaintiff’s attorney so accepted it. This argu*420ment is disposed of by reference to the undertaking itself, which is indorsed as follows:
I certify that the defendant in this action has been held to bail by me, pursuant to the order of arrest issued herein, and I further certify that the within is a true copy of the bail taken by me under the said order.
A. V. DAVIDSON, Sheriff.
It is hardly conceivable that the sheriff would speak of the bail as being “ taken by me,” if he thought he was giving bail himself.
I do not think that Messrs. Smith and Brady ever lawfully became the bail of Gerald T. Tully, or ever possessed any power to surrender him. The sheriff derives no authority to hold him, from any act done by either of these self-constituted sureties.
It is Contended, however, in behalf of the plaintiff in the civil suit, that the transfer of the relator to the custody of the Federal authorities and the subsequent transaction in reference to the so-called bail bond, amount at most only to a voluntary escape; that the right of the sheriff to retake a prisoner on mesne process after an escape is well settled, and hence that the present detention of the relator is lawful.
I think these propositions are correct.
It is doubtful whether the sheriff could be held liable for an escape on allowing the United States marshal to take the relator during the pendency of the extradition proceedings, even against the wishes of the plaintiff in the civil action (See Wilckens agt. Willet, 1 Keyes, 521).
As to. the pretended letting to bail of the defendant, it must be regarded as a nullity in all.respects. If deemed ineffectual for purposes- of surrender, it cannot be deemed valid to effect the prisoner^ release- by reason of the act of the. plaintiff’s attorneys in accepting- the so-called bail. But assuming that there was' a technical escape while the persons deputed to execute the surrender were conveying the prisoner to the jail, the sheriff had a right to retake him by virtue of *421the original order of arrest, which had not become functus officio (Arnold agt. Steeves, 10 Wend., 193; Bronson agt. Noyes, 7 Wend., 193). The order still remained valid process.
Under the old practice, if any one obstructed the sheriff in his efforts to retake a defendant after escape, an attachment would issue against the offender “ the same as in all other cases of obstructing the execution of the process of the court ” (Graham's Practice, 149).
My conclusion is that the relator is lawfully in custody by virtue of a mandate in a civil cause, notwithstanding the events which have occurred since his original imprisonment began, and that the proceedings must therefore be dismissed.