Same Case — On the Merits.
Prestoh, J.On the 29th of May, 1850, James Cassidy entered into a bond to the State as the surety of one Ford, accused of larceny, that he should appear and answer to the charge before the First District Court of New Orleans, and not depart without the leave of the court. He was arraigned, plead not guilty, and put himself on the country for trial. But, on the 20th of June, the day fixed for the trial, though duly notified, he did not appear. A capias was issued, hut he was not arrested, nor ever afterwards appeared.
On the 2d of July, 1850, in pursuance of the act approved the 11th of March 1837, on motion of the district attorney, the bond was declared forfeited, and judgment entered against Ford and Cassidy, in solido, for its amount and costs. In pursuance of the act, ten days’ notice was given to Cassidy to set aside the judgment, if he had any cause. A like notice was issued to Ford, but he was not found.
Cassidy did not attempt to set aside the judgment in the district court, but, on the 28th of April, 1851, took this appeal.
*276He assigns for error, that no notice was given to the accused to appear and stand his trial; that the notice, if given, must have been a written notice, emanating from the clerk’s office, served by the sheriff, and his return on file, and that there is nothing in the record showing such notice. The statutes do not prescribe in what form the notice shall be given, and the rules of the court are not before us. In their absence, we should suppose, that an oral notice of the day of .trial, when the prisoner was arraigned, would have been sufficient. On the day of trial, an entry is made that the accused did not appear for trial, though duly notified. We are at least to presume, that he was duly notified, since the defendant did not make the objection within the ten days allowed by law for doing so.
He assigns in tho next place for error, that the condition of the bond was, that the accused should appear in court when notified. He did appear and pleaded to the information filed. The law of 1837, only authorized a forfeiture of the bond and judgment on it, when the accused failed to appear on the day named; leaving to the State recourse by ordinary action only, for any subsequent failure, to abide by the decision of the court. The bond was therefore improperly forfeited, and judgment rendered against the surety, without observing the due forms of law, and contrary to law and the Constitution of the State and of the United States.
The condition of the bond in this case, as expressed on its face, is, that the accused shall be and appear before the First District Court of New Orleans, to answer to the complaint brought against him for larceny, and not depart thence without the leave of the court. It is true, the statutes provide, as the condition of the bond only, that the accused shall appear; but that means an effectual appearance; and that effectual appearance is, that the party shall remain and submit to trial and judgment. The condition expressed in the bond under consideration, does not, therefore, exceed the legal import of the condition required by the statutes. It is usual and proper, indeed, on appearance, to continue the bond with the assent of the surety, and we have no reason to doubt that this course, being a mere matter of practice, was pursued in the present case, as the surety did not make the objection when notified to offer any reasons he might have to set jiside the judgment of forfeiture against him. As to the notification mentioned in this bond and assignment of errors, we have already disposed of it.
It is next alleged, “ that the act of the Legislature under which the judgment of the lower court was rendered, is unconstitutional, null and void, and has been repealed by subsequent legislation.” No argument or explanation has been offered in support of this ground.
It is lastly urged, “that the obligation of-the surety was a civil one only, and must be enforced according to the rules prescribed for civil actions. The bond for the appearance of persons accused of crimes, is a means provided to ensure the prosecution and punishment of criminals; the forfeiture of the bond, by judgment, has always been regarded as a criminal proceeding, and whether criminal or civil, was obtained, in this case, in the mode pointed out by the act of the 11th of March, 1837, passed expressly for the purpose.
The judgment of the district court is affirmed, with costs.