The complaint alleges that a complaint was filed July 15, 1890, in the Justice’s Court of Deer Lodge County, which charged Biesman with the crime of unlawfully obstructing the public highway. He was convicted and sentenced to pay a fine and the costs, and remanded to the custody of the sheriff to stand committed until the same should be *12satisfied. Biesman then filed a notice of appeal, and, in order to secure liis release, entered into a recognizance undertaking, which contained these recitals and conditions: — ■
“Whereas, on the eighteenth day of July, A. D. 1890, one August Biesman was convicted of obstructing a public highway, before J. M. Hartwell, Esq., justice of the peace in and for Deer Lodge County, State of Montana, and was fined the sum of $5, together with costs, amounting to the sum of $191.35'; and whereas, the said August Biesman is dissatisfied with said judgment and is desirous of appealing from the said judgment to the District Court of the Third Judicial District of the State of Montana, in and for Deer Lodge County.
“Now, therefore, the condition of the above obligation is such that if the said August Biesman, the said defendant in said action, will appear in the said District Court, on the trial therein, and pay all judgments for fine and costs that may be rendered against him in the District Court in such casé, then this obligation to be null and void; otherwise to remain in full force and effect.”
Afterwards this recognizance was approved and filed, and Biesman was released from the custody of the officer, and the appeal was perfected. The case was set for trial in the court below on the eighth day of September, 1890, and continued until the tenth day of September, 1890. ■ The complaint says that on the last-named day “the defendant appeared by his attorney, J. B. Boarman, and on motion of the defendant, the court permitted said appeal to be dismissed, and said appeal was, by the judgment of said court, dismissed; that the court duly declared said appeal bond of the defendants forfeited, and the facts of the said forfeiture duly entered upon the records of the court; that on the - day of-, 1890, said defendant, August Biesman, paid on said judgment of $191.35 the sum of $44.40, leaving a balance due and unpaid of $146.95.”
This action was brought to recover from Biesman and his sureties the said sum of $146.95. The court below sustained a demurrer to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and entered a judgment for the defendants for their costs.
*13The respondents contend that the complaint fails to state facts sufficient to constitute a cause of action, in this, that there is no allegation that a demand for the payment of the amount in controversy was made upon the sureties. They cite Morgan v. Menzies, 60 Cal. 341; 65 Cal. 243; but these decisions have been qualified in Coburn v. Brooks, 78 Cal. 443, and it is held that an averment to this effect is not required.
The principal question which has been discussed by counsel is more difficult, and the authorities are inharmonious. It is conceded that the sureties upon this recognizance are entitled to stand upon the strict letter of their contract, and that their liability cannot be enlarged by implication. The observations of the Supreme Court of Illinois in Shreffler v. Nadelhoffer, 133 Ill. 552; 23 Am. St. Rep. 626, should be considered in this connection: “ It is not meant by this rule, however, that the courts, in endeavoring to ascertain the precise terms of the contract actually made by a surety, may not resort to the same aids, and invoke the same canons of interpretation, which apply in case of other contracts.”
The Criminal Practice Act provides that, in all cases of conviction, the court shall enter his judgment for the fine and costs against the defendant, and may commit him until the judgment is satisfied. (§ 508.) Such person may appeal to the District Court “ by entering into recognizance with sufficient security, conditioned that he will appear in the District Court on the trial therein, and pay all judgments for fine and costs that may ■be rendered against him in such a case.” (§ 510.) “If the judgment of the court shall be affirmed or modified, or if, upon trial in the District Court, the defendant shall be convicted, and any fine assessed, judgment shall be rendered for such fine and costs in both courts against the defendant and his securities.” (§ 515.)
The respondents assert that no judgment for the payment of ■any fine and costs was ever rendered against Biesman in the District Court, and that the dismissal of the appeal released them from all liability. The appellant insists that the ruling of the court below, within the meaning of the conditions of the recognizance, was the rendition of a judgment which was binding upon Biesman and his securities. This is a case of first *14impression in our court, and we have concluded to follow the doctrines which seem to be applicable to the facts, in the light of the reason of the law. Biesman appeared by his attorney in the proper District Court, and, after a continuance, voluntarily dismissed his appeal. What were the consequences of his conduct? What is the sound construction of the statute under which the undertaking was given ?
The case of Harrison v. Bank of Kentucky, 3 Marsh. J. J. 375, was decided in the year 1830, and the bond was conditioned to pay “in case said judgment shall be affirmed in said court of appeals,” and the appeal was dismissed. Judge Buckner, in the opinion, said : “The main, if not the only object in requiring an appeal bond is to secure to the plaintiff in the judgment the payment of such judgment with costs and damages, when awarded, unless it should be reversed by the appellate court, and, to attain that object, such must be considered to be its legal effect, in every case where it has been executed in the words of the act, or in other words substantially the same. In such cases we must remember that qui hceret in litera, hceret in cortice; we must regard substance and not form, or the law will-have been in vain; and, under that view of it, the dismission must be considered as a virtual affirmance of the judgment. A different interpretation of the law would lead to fraud and injustice, subjecting creditors in many instances to the entire loss of their debts. Appeals would be taken without an expectation of successful prosecution by principals, and the bonds entered into by sureties without the fear of responsibility.”
In the year 1840 the case of McConnel v. Swailes, 2 Scam. 571, was decided, and the court, by Mr. Justice Breese, said: “This court does not entertain a doubt but that the dismissal of an appeal or certiorari is equivalent to a regular, technical affirmance of the judgment, so as to entitle the party to claim a forfeiture of the bond, and have his action therefor. The bond given in such case is conditioned ‘to pay the debt and costs, in case the judgment shall be affirmed on the trial of the appeal/ What is the object of this requirement, and what its meaning and intention? Manifestly, to secure the opposite party in his debt and costs, in case the judgment shall not be reversed, in case he shall be in the Circuit Court the successful party. By *15a dismissal of the appeal, either by the court, or by the act, of the appellant himself, the appellee is the successful party.”
Chief Justice Field in Karth v. Light, 15 Cal. 324, approved Harrison v. Bank, supra, and said: “A judgment may, in the contemplation of the statute, be said to be affirmed when, by any action of the appellate court, it is no longer open for review, whether that be either by a dismissal of the appeal or by a direct decree of affirmance. . : . . By the statute the undertaking providing for the liability of the sureties, upon the condition of the affirmance of the judgment, operates as a stay; and if by a mere neglect to prosecute an appeal, and for that reason suffering it to be dismissed, after the respondent has been deprived of his rights under the judgment by the undertaking, the sureties could be released, upon the pretense that the judgment was not affirmed, it is evident that great injustice would be, in many instances, perpetrated, and a fraud practiced upon respondents.” (Chase v. Beraud, 29 Cal. 138; Simpson v. Prather, 5 Or. 86; Garrick v. Chamberlain, 97 Ill. 620.) We think that the proceedings which are set forth in the complaint constitute, according to the statute, an affirmance of the judgment of the Justice’s Court against Biesman.
Some of the authorities to the contrary are collated in Freas v. Englebrecht, 3 Colo. 385. While we respect highly the courts in which these views prevailed, it is unnecessary to examine and compare the conflicting opinions.
The complaint alleges that the appeal was “by the judgment of said court dismissed,” and that “ the court duly declared the said appeal bond of defendant forfeited, and the facts pf said forfeiture duly entered upon the records of the court.” It can be implied from these allegations that “the proper steps authorizing such forfeiture had been taken.” (Friedline v. State, 93 Ind. 368.) After Biesman had been committed in pursuance of the sentence of the justice for the non-payment of the fine and costs assessed against him, he was released through the execution of this obligation by respondents. The responsibility of the sureties then attached. (People v. Wolf, 16 Cal. 385; People v. Penniman, 37 Cal. 273.) The statute draws the distinction between the affirmance of a judgment and the conviction of a defendant upon a trial in the District Court, and in *16both cases judgment shall be rendered for a fine and “the costs in both courts against the defendant and his sureties.” (Crim. Prac. Act, §§ 510, 515, supra.) This was the duty of the court below when the appeal was dismissed. The word “rendered,” which is used in the recognizance and these sections, has been defined in many cases. (Gray v. Palmer, 28 Cal. 416; McLaughlin v. Doherty, 54 Cal. 519; Thomas v. Anderson, 55 Cal. 43.) A judgment is “rendered” when the court makes an order therefor. The complaint may be ambiguous in this respect, and may not state with certainty all the proceedings of the court below, but, as against this demurrer, a cause of action has been alleged. The recognizance was forfeited, and the facts thereof were entered upon the records, and all presumptions are in favor of the regularity of these proceedings, and that the court below performed its duty.
It is the theory of the law that the defendant in criminal proceedings is under the control of the court, and in actual or constructive custody. Biesman was in the custody of his sureties. (People v. Genet, 59 N. Y. 81; 17 Am. Rep. 315; Lee v. State, 51 Miss. 666; Koch v. Coots, 43 Mich. 30; Reese v. United States, 9 Wall. 13.) In the last case Mr. Justice Field for the court said: “By the recognizance the principal is, in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing, not that he is, in point of fact in this country at least, subjected, or can be subjected by them to constant imprisonment; but he is so far placed in their power that they may at any time arrest him upon the recognizance, and surrender him to the court, and, to the extent necessary to accomplish this, may restrain him of his liberty.” The respondents have not paid any sum by reason of their recognizance, and have not surrendered Biesman in open court or to the sheriff.
We are authorized to weigh the circumstances under which the sureties assumed this responsibility. (Shreffler v. Nadelhoffer, supra) If the respondents can secure the release of their principal from the custody of the officer, and escape liability in this action, by the dismissal of the appeal, it is clear that the administration of justice will be obstructed. The court erred in entering a judgment for the respondents, under these conditions.
*17It is ordered that the judgment be reversed, and that the cause be remanded, with directions to the court below to overrule the demurrer.
Harwood, J., concurs.