The defendants claim that the bond in question was void because the principal therein was held without legal authority when it was given, and gave the bond to liberate himself from unlawful imprisonment.
It appears that McGuire, the principal in the bond, was brought before the Superior Court and tried for the crime of theft. The jury failed to agree on a verdict and the cause was continued to the nest term of the court. McGuire was subsequently required to give bonds with surety, and was committed to 'the custody of the sheriff of the county because the order was not complied with. The bond was not given during the term of the court, and no formal order was given to the clerk for his commitment to jail. Soon after the court adjourned for the term the clerk issued a mittimus for his commitment to jail, and on that he was held in custody when the bond was given. The claim is that the clerk had no authority to issue the mittimus after the close of the term, and that therefore McGuire was unlawfully imprisoned when the bond was given.
It is never the practice of the Superior Court to issue an order to the clerk, in each particular case, for the commitment of a prisoner to jail. There is a general continuing order of the court to that effect, which the clerk may at all times during a term of the court act upon as occasion requires. The general order has the force of a special order in each particular case; and therefore this casé stands just as it would have stood if the clerk had been specially directed to issue a mittimus to commit McGuire to jail. The clerk omitted by mistake to comply with the order during the term of the court. But the clerk is merely the recording officer *252of the court. The authority is vested in the court. McGuire then was in jail by order of the court, because he neglected to give the bond required by the court. It is true, up to the time that the mittimus issued McGuire might have been liberated on a writ of habeas corpus, because there was no legal evidence of the authority by which he was held; but when the mittimus issued the authority appeared. The mittimus was based upon the action of the court, and was in the nature of an execution to carry into effect the judgment of the court. The clerk could issue it after the term had expired as well as before, the only difference being that the retention of McGuire in jail became lawful when it issued, although such retention may not have been lawful before.
We think this claim of the defendants untenable.
In all criminal cases where a party accused of crime is liberated on bail, the principal and sureties bind themselves that the principal shall appear before the court at the time and place appointed and answer to the crime charged' against him. The form of the recognizance is without reservation or condition, but the law excuses the sureties if they are prevented by the act of God, or by the act of the law, or by the act of the obligee, from fulfilling the requirements of the bond. It is not pretended in this case that the defendants are excused by the act of God, so that we are only to enquire whether they are excused by the 'act of the law or by the act of the obligee. The defendants claim that they are excused upon both of these grounds.
We will then consider, in the first place, whether they are excused by the act of the law.
It is not pretended that the law of this state interfered with the performance of the condition of the bond, but the claim is, that the law of the state of Maine, where McGuire was imprisoned, did, and rendered the condition of the bond impossible to be performed. But what has the state of Connecticut to do with the law of the state of Maine, airy more than it has with the law of England, or France, or of the Sandwich Islands ? It would not be claimed that if McGuire had escaped to either of these countries, and had been there im*253prisoned, that would be a sufficient excuse. The states of this Union are foreign to each other in a matter like this. So far as their local affairs are concerned they are as independent of each other as France is independent of England. Their independence is limited only by the constitution and laws of the United States. But McGuire was taken to Maine to answer for a crime committed against her local government; a matter that Maine has sovereign control over, to punish, or not, just as she pleases. What is meant by the act of the law, is, the law of the state or country where the obligation is entered into. There is reason why this should bo an excuse, but there is no reason why the law of another state should bo. Suppose McGuire had gone to Maine in order that he might be arrested for some small offence that he had previously committed there. If the defendants’ claim is correct ho had it in his power when the bond was given to exonerate his bail and escape all punishment perhaps for the heinous crime that he had committed in this state. This would afford an easy way of escape in many cases. The criminal even might have an understanding with his surety before a bond should be given, that he would take such means of escape, and the fact would be known Only to themselves.
If it be said that the collusion in such cases would prevent any exoneration of the bail, it is manifest that the fact could never be proved except on the confession of one or the other of the parties, which would rarely if ever be made. Wo should hesitate long before we should hold that the common law goes thus far to excuse bail, even if cases could be found where the doctrine contended for has been upheld. But we think the weight of the decided cases is in accordance with the view we have taken of the phrase, “ by the act of the law.” The defendants were in fault in suffering McGuire to escape from the state. It was in their power to prevent his so doing and thus to prevent the consequences that have ensued.
The defendants further claim that they are excused by the act of the obligee. The obligee in the bond of recognizance is the State of Connecticut. The claim is that the constitution of the United Staff's requires that fugitives from justice shall *254be given up on a requisition by the executive of the state from whence the fugitive has fled on the executive of the state to which he has escaped. The executive of the state of Maine made a requisition on the executive of the state of New York for the surrender of McGuire. Ho was surrendered; and the claim is that the state of Connecticut, being a party to the constitution that required it to be done, made herself a party to the surrender. If McGuire had remained in this state he would not have been surrendered on a requisition made by the executive of Maine. It was more important to this state, and just as important to the country at large, that he should be punished for crime committed here, as that he should be taken to Maine and punished for crime committed there. The requirement of the constitution was never intended to apply to such a case. This is obvious; for if a party commits crime in two different states, and one of them lias him in custody awaiting trial, it is absurd to say that the constitution requires that he should be surrendered to the other state on a requisition being made, for the state surrendering him would have an equal right to require that he be returned again.
If then this state would not have surrendered McGuire if called upon to do so .by the executive of Maine, how can it be claimed that she participated in his surrender by the state of New York ? Under the constitution Connecticut had as much right to McGuire to punish him for crime as the state of Maine. His escape to New York through the fault of his hail made her rights none the less, and those of the state of Maine none the greater. So long as the prosecution against McGuire remained in court Connecticut insisted upon her right to try him, by all the means in her power, and required the bail to produce him for the purpose. He might have been produced up to the time he was delivered to the authorities of Maine, for the bail had ample authority for the purpose. If they had gone to the state of New York, even after the requisition had been made upon the executive of that state, and demanded the right to remove McGuire to this state by virtue of their bond, no doubt the executive of that state *255would have surrendered Mm to the bail, instead bf surrendering him to the authorities of Maine, for this state liad a superior right to him inasmuch as she had moved first to punish him, if guilty, for crime committed here. How then ean it he said that Connecticut participated in Ms surrender ? It is not true, either in fact or by force of the constitution, that she did so. It was not the act of the obligee, and therefore there is no defense upon this ground.
TVe therefore advise the Superior Court to render judgment in favor of the plaintiff to recover the amount of the bond without interest.
In tills opinion the other judges concurred.