The undertaking, or recognizance, on wbicb a judgment nisi was taken, and a scire facias issued, *74and judgment absolute thereupon rendered against appellants in this cause, was entered into under section 4305 of the Revised Code. The principal recognizees had been convicted of petit larceny, and sentenced to pay a fine, at the Spring term, 1875, of Pike Circuit Court; and desiring to appeal to this court, were authorized by the section mentioned to suspend execution until the' next term thereafter of the Circuit Court, provided they should “give bail, with sufficient sureties, conditioned [to] appear at that term, and abide the judgment rendered.”
By section 4307, referring to this obligation, it is provided that, “ when the undertaking of bail is forfeited, by the failure of the defendant to appear according to its terms, the same proceedings must be had thereon as on the forfeiture of other undertakings of bail in the Circuit or City Court”; and by section 4316 it is provided, that if the judgment ap-pealed_ from is reversed, “ the Supreme Court may order a new trial, or that the defendant be discharged, or that he be held in custody until discharged by due course of law, or make such other order as the case may require; and if the defendant is ordered to be discharged, no forfeiture can be taken on his undertaking of bail.”
It thus is manifest'that the legal effect of such an undertaking is, that the defendants should appear at the next term of the court, to abide “the judgment rendered,” if that was affirmed; and also, if that was reversed, and they tuere not discharged, to abide such other judgment as might be rendered in the cause in the Circuit Court; in which latter case, the undertaking would operate as one of ordinary bail, binding defendants to appear and answer to the indictment preferred, or to be preferred against them. And under section 4244 of the Revised Code, it “binds the parties thereto, jointly and severally, for the appearance of the defendants on the first day of the court, from day to day of such term, and from day to day of each term thereafter, until discharged by law; and if the trial is removed to another county, for the appearance of defendants from day to day of each term of the court to which it is removed, until discharged by law.” Indeed, “the essence of all undertakings of bail, whether upon a warrant, writ of arrest, suspension of judgment, writ of error, or in any other case, is the appearance of the defendant at court; and the undertaking is forfeited by the failure of the defendant to appear, although the offense, judgment, or other matter, is incorrectly described in such undertaking; the particular case or matter to which the undertaking is applicable being made to appear to the court.” § 4245.
*75It hence is shown that, if the cause in which defendants were required to appear at the Fall term, 1875, was continued, as from the record we infer it was, to the Spring term, 1876, of the Circuit Court (possibly because the Supreme Court had not yet passed judgment on it), the undertaking-bound defendants to appear at that term, as the judgment nisi recites that it did. That was its legal effect in such a case, under the statutes according to which it was entered into. The plea of mil tie'l record to the scire facias, therefore, was not sustained; because the undertaking was described according to its legal effect. For the same reason, the demurrer to the scire facias, upon oyer of the undertaking, for a variance between these two, was properly overruled. The only particular in which there was apparently a variance between them, was that the undertaking stipulated for the appearance of the defendants at the Fall term, 1875, of the Circuit Court, while the scire facias set forth in its recital of the judgment nisi of the Spring term, 1876, that they agreed to appear at that term; which, as we have seen, was the legal effect of the undertaking, according to the statutes, when the cause in which it was given was continued to that term.
The only other ground of demurrer, sufficiently assigned, is, that the judgment in the State case, in which the undertaking was given, and execution was suspended thereby, was reversed in the Supreme Court. But this defense could not be made by demurrer. It should, after oyer of the undertaking, have been set up by plea, and sustained by evidence from the record. The undertaking would have shown, that it required the defendants, not (according to the directions of the statute) to appear and “abide the judgment rendered,” but to appear “ and abide the judgment rendered at this, the Spring term, 1875and if that judgment had been shown to have been in fact reversed, and not affirmed, the defense would probably have been made out. For the stipulation of the undertaking being thus special, and not in the terms of the act, it may be that the sureties would not have been bound to answer for the defendants abiding any other judgment in the cause. This suit, though, is a civil action; and the proceedings of the criminal cause, out of which it arose, should have been brought before the Circuit Court in this cause, by pleading and evidence. It was not thus shown to that court that the judgment referred to was reversed. And since, if there be error, it must be made apparent, and all intendments will be made in favor of supporting the proceedings below, the judgment of the Circuit Court must be affirmed.