{concurring). I concur fully in the opinion of the chief justice. Kathan was in custody under lawful process. Even if his removal by the sheriff to another county amounted technically to an escape, it does not follow that he was bound to assert his liberty thus regained. He was still subject to the prosecution which had been legally instituted, and which was still pending against him. He could be re-arrested if he should escape from custody other than by lawful means; and it would seem that he desire d to secure his enlargement in a manner which would not subject him to further trouble until, the day appointed for his examination. To accomplish this, he and the plaintiff in error, as his surety, executed the bond in controversy. Surely, neither of them can complain that they were allowed to do this without the labor and expense of a journey to a distant county to appear before the magistrate. The answer does not show that plaintiff in error was under any duress, actual or constructive, or that he was ignorant of the rights and privileges of the accused, or that either he or his principal was in any manner imposed upon. They executed the bond voluntarily, for a lawful purpose, and with full knowledge of its contents. Under such circumstances, in an action on the instrument itself, it seems clear that both principal and surety should be held estopped by its particular recitals. It is a matter of public importance that the criminal law should be administered fairly and impartially for the protection of society, as well as for the protection of the accused.' Parties are allowed to give recognizances and bail bonds for their own advantage; and when, in assuming such obligations, *352they are treated in perfect good faith by those acting in behalf of the state, there seems to be no good reason why they should not be held liable thereon upon principles applicable to other instruments of like character.
Affirmed.