delivered the opinion of the court.
The appellees in this case became the bail of one Perry, who had been arrested at the suit of Hudson, the appellant. Judgment was rendered against Perry, for six hundred dollars, and a writ of jfieri facias which issued thereon, having been returned, no property found, a capias ad satisfaciendum was sued out, upon which the sheriff returned, that the defendant was not found in the parish, and that he had called on the bail to produce him, which-they had failed to do. Upon the exhibition of this proof, the plaintiff moved . ... . . the court for judgment against the bail, after having given due notice, in writing, of his intended motion. In answer to the motion, the appellees denied all the allegations therein • . . , contained, except that they signed the bond. The court being of opinion that the plaintiff had failed to make out his case, gave a judgment of non-suit, and he appealed.
T . , . , . .„ . . . It is urged that the plamtifi is not entitled to recover of the bail, without proof that the principal had left the state, without leave of the court, according to the conditions of the 3 ° , bond, and no such proof having been given, the judgment of the District Court is correct.
The Code of Practice provides, that “ if the surety fails to present the person of the debtor, on execution of the definitive judgment rendered against him, the plaintiff shall be entitled to judgment against such surety for the amount of the judgment rendered against the debtor, by moving for it before the court by which it was rendered, after exhibiting the act of surety transferred to him by the sheriff, provided written notice of the intended motion be given to such surety, ten days previous to taking judgment against them.” Jlrtwlc 235.
The principal obligations assumed. by the surety, are to pay the amount of the judgment rendered against the debtor, or to surrender him in execution. The neglect or refusal of the surety to suiTender the debtor in execution, is to be taken as prima facia evidence, that the latter lias departed from the state, and the bail bond is thereby become forfeited. But the bail or th^rigid^to tbs-by'1?6suit™uier °f the debtor, until lmal judgment is entered, oonsidered’as’in the friendly ciistody ot Ins surety, who in case any time a^ght tbe11» *of’íegal process.The record exhibits evidence of all the facts upon which, a recovery 0f surety is made to depend by the article above recited. A demand was made on the sureties to surrender their principal, on execution of the judgment rendered against him. But the defendants contend that something more is required in order to entitle the plaintiff to recover; that he must show that the principal had actually left the state, as that is the condition of the bond. It is true, such is the condition of the bond; but it does not follow, that even wlien .the principal leaves the state, without the leave of the court, the penalty of the bond attaches absolutely. The surety has still the right to surrender him at any time before the judgment is pronounced against himself, on the bond. Code of Practice 231. All these articles must be taken together in deciding upon the liability of the surety. Under .the act of 1805, it was held by this court, that the judgment creditor could not recover on a bail bond, without proving the departure of the principal from the state. 10 Martin, 363. But the provisions of the act of 1805, regulating the practice of the Superior Court were different from those of the Code of Practice, in this particular. By that act judgment might be rendered against the bail if it should appear that the condition of the bond had been broken. According to the provisions of the Code of Practice, this court held, in the case of Walls vs. Smith, 3 Louisiana Reports, 498, that the principal obligations assumed by the surety are to pay the amount of the judgment rendered against the debtor or to surrender him in execution.
The Code has pointed out what shall be taken as sufficient evidence of a breach of the conditions of the bond, and has made the recovery of the bail to depend on the exhibition of . . . < A . such proof. According to our construction of the article first recited, the neglect or refusal of the surety to surrender the debtor in execution, is to be taken as prima facie evidence ' ■* ° that he had departed from the state, and the bond has become forfeited. The surety still has right to discharge himself, by a surrender °f the debtor, until final judgment is entered, and the debtor is considered in law, as in the friendly custody of *125his surety, who, in case of escape, has at any time a right to arrest him, by the aid of legal process. In this case, we are of opinion that the plaintiff has brought himself within the law and is entitled to recover.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff recover from the defendants Jean Baptiste Rills and Frederick A. Davis, the sum of six hundred dollars, together with the costs of the suit of Hudson vs. Perry, and the costs of their motion in the District Court and of this appeal.