dissenting, the judges'delivered their opinions seriatim.
Carleton, J. —This action is brought against the sureties of C. W. Jackson, to recover the sum of eight thousand dollars, the penalty of two bonds, in which they obligated themselves in solido with him to the state, conditioned for his appearance at court, in the April term of 1836, there to answer-certain charges, and not to depart without leave of the-court. '
The petitioner alleges, as a breach of the condition of the bonds, that Jackson failed to appear as he was bound, and having departed without leave of the. court, the defendants, his sureties, failed to produce him when thereto required.
The defendants, after excepting to the form in which the action is brought, aver, that they were discharged from their obligation, by the appearance of Jackson on the second day of the term, and by his arraignment and trial, at which he was present.
The majority el the court were of opinion that, the district attorney had the choice of remedies, and could proceed against sureties in bail bonds by ordinary suit* and waive the summary mode oí proceeding under the statute of April 2d, 1835. The state may select any legal means of insti-tutingsuit,which individuals may resort to.The cause was submitted to the court, who rendered judgment for the plaintiff, and the defendant appealed.
It seems from the statement of facts coming up with the record, that Jackson and his sureties appeared at court on the second day of ihe term, and were called on their recognizances at the instance of the district attorney ; that some days thereafter, he appeared again, and plead to two of the indictments, on which he was tried and convicted. It moreover appears, that proclamation was made for him after his conviction, but that he could not be found.
1. For the defendants, two grounds of defence are mainly relied on r first, that the plaintiff was restricted to the summary mode of proceeding against the sureties provided by the law of 1835, page 219, section 1, then in force, and that he had not his election to proceed via ordinaria. I think differently. The law of 1817, 1 Moreau’s Digest, page 27, section 3, provides, that “the attorney general, and the several prosecuting attorneys of this state, shall be bound to prosecute, or sue in all cases, either criminal or civil, where the state shall be a party.” This law is not expressly repealed by the act of 1835, nor does that act contain any thing contrary to, or irreconcilable therewith. Louisiana Code, article 23. Nor could there be any good reason assigned, even if the law were silent on the subject, why the state should not, as w7ell as every other suitor, have their choice of remedies where more than one existed. Nor have the defendants any just ground of complaint against this mode of trial, it being more advantageous to them, especially as they might have availed themselves of the trial by jury.
2. The counsel for defendants contend, secondly, that by the appearance of Jackson, on the second day of the term, and also at his arraignment and trial, his sureties were discharged from their recognizances by operation of law.
This point has been ably and elaborately discussed by counsel on both sides, and many authorities, mostly from the common law, cited and commented upon at length. Defendants’ counsel has particularly drawn our attention to Chitty’s Criminal Law, pages 93, 105 and 665. But it appears to *523me, that this authority does not bear him out in the position he has taken: for it is not possible, that any construction put upon the language of the bond, can at all vary its plain and obvious meaning. The sureties there stipulate, that their principal shall appear at court, and “ not depart thence ivith-out leme of the court, then and in that case the above obligation to be null and void, otherwise to remain in full force and virtue.” The accused did accordingly appear, but departed thereafter without leave of the court, whereby the condition of the bond was broken, and the forfeiture incurred. It may, indeed, be hard for the defendants to be compelled to pay so large a sum of money, from an erroneous conception of their obligation. But the remedy, if any, is with the legislature, and not this court. I fully concur in the able opinion delivered by the district judge, and think his judgment ought to be affirmed.
Where the sureties on bail produced the principal on the day, and when called, according* to ihe tenor of their bond, who was&rraigiv-ed, tried, and found guilty by the jury on two indictments, and afterwards disappeared: HeJclt that the sureties were not discharged) because the bond stipulated that 44 the principal shall anH'nof depart without leave of the court, which was not ^Se!ne<1 m lhis Bullard, J., therels^iTilm-maryas well as an ordinary remedy provided [y" may’resort Tó cidier at his op-ease ought tins mined* when the Ii,w llas P°inled out a specific remedy; andaré-Tóukí0 deprive the defendant of any advantage, and render his 0nemls.n m01t