missed. In all such cases there can be but one judgment, of either conviction or acquittal; and any such judgment can be pleaded in bar of any other prosecution for the same offense. But here the accused had not been convicted or acquitted on the charge pleaded at bar, nor on any other charge, for the offense of unlawful cohabitation. The defense set up by the sureties is one that the accused himself could not have availed himself of in his defense on the charge upon which this case is based; much less, then, it would seem, could his sureties do so.

The doctrine of the supreme court of the United States as set forth in the case of Ex parte Snow, above referred to, when applied to this case, is that for the time between the finding of the indictment of the twenty-fourth of March, 1885, and the date of complaint before the commissioner, to-wit, the sixteenth day of February, 1886, there could be but one conviction; and not that the penddency of one indictment or prosecution was a defense to a trial or conviction upon another for the same offense. It is a well-settled rule of law that the pendency of one indictment is no bar to the trial or conviction on a second or subsequent indictment for the same offense: Chitty, Crim. Law, 447; Com. v. Murphy, 11 Cush., 472; Whart. Crim. PL, 472; U. S. v. Herbert, 5 Cranch, C. C. 87; Kalloch v. Superior Court, 56 Cal., 236; 1 Archb. Crim., Pl. 110, 111. The pendency of the former prosecution, that presented by case No. 6599, would not preclude the prosecution in this case. Had the former prosecution been carried forward to trial and judgment, it could have been pleaded in bar of the action in which the undertaking herein sued on was given, and also of this action. But as the accused did not appear, and was not surrendered, there could be no trial or judgment. One prosecution for the time subsequent to the indictment of March 24, 1885, as we have seen, was proper and legal. The prosecution in which the undertaking sued on was given, was subsequent to that indictment. Its being subsequent would not, therefore, it seems, render it invalid or illegal. It might be legal. The pendency of the former prosecution being no defense to this action, we are not in a position to say that the pres

ent action is illegal or unauthorized. If the accused could have been prosecuted to judgment, the bond to require him to appear was not invalid. Had the accused appeared at the time appointed for the trial, he could not have interposed any legal objection to proceeding to trial in the case in which the undertaking herein sued on was given; nor could his sureties have made any such objection. Besides, had he appeared then, a new indictment might have been presented against him, covering the whole time subsequent to the indictment of the twenty-fourth of March, 1885, and by the undertaking herein sued on he was bound to answer to it. He would not have been entitled, at least, to be discharged er debito justifice at that time. The accused should have appeared at the time, and his sureties should have seen that he thus complied with the requirements of the undertaking. They were, to some extent, his jailors, and could have arrested and restrained him to the extent necessary to produce him at the appointed time. They failed to do their duty in not having him there, and he failed to appear of his own will, and the undertaking was duly forfeited. They did not deny then that he was liable to arrest, nor did he deny it. It would seem that they are now estopped from denying that he was liable. to arrest upon the charge, to answer which the undertaking herein sued on was given: Henriques v. Dutch West India Co., 2 Ld. Raym., 1535; Welland Canal Co. v. Hathaway, 8 Wend., 481.

nothing against him,

.

It was not for the accused, nor for his sureties, to judge of the propriety or necessity of his attendance at the time, when it was the obvious policy of the law to refer that question to the court whether he was required to appear. "If," to use the language of the supreme court of New Jersey, "he had appeared, and there had been it might have been sufficient cause for the court to have discharged his recognizance, and given him leave to depart; but it was not in itself such leave or discharge. A recognizance, in general, binds to three particulars: First, to appear to answer either to a specified charge, or to such matters as may be objected; second, to stand to and abide the judgment of the court;

and third, not to depart without the leave of the courtand each of these particulars is distinct and independent. The party is not to depart until discharged, although no indictment should be found against him by the grand jury, or although he be tried and a verdict of acquittal rendered:" State v. Stout, 11 N. J. Law, 124.

The same doctrine if laid down by the supreme court of Maine, which says that "the right to enforce a recognizance in no way depends upon the question of the guilt or innocence of the accused, and that question can only be determined by trial upon the complaint;" that "the defendant was bound to appear," etc.; and "he cannot set up the repeal of the statute:" State v. Boies, 41 Me., 344.

In Pennsylvania it is held that in an action on a recognizance, which originated before a justice of the peace, the validity of it cannot be questioned, either by proof that it was illegally taken, or that it was fraudulently taken: Clark v. McComman, 7 Watts & S., 469; Pierson v. Com., 3 Grant, Cas. 314.

In New York it is held that sureties on an undertaking of bail, in an action against them after breach, cannot question the liability of the principal to arrest or imprisonment; that they cannot defend upon the ground of the illegality of the arrest. They should have moved for exoneration at the proper time: Gregory v. Levy, 12 Barb., 610; Levy v. Nicholas, 19 Abb. Pr., 282. Various other states hold the same doctrine.

The supreme court of the United States has held in the case of Beers v. Haughton, 9 Pet., 329, that where the accused would have been entitled to his immediate discharge if he had been surrendered at the appointed time, the sureties could plead that fact in bar, and thereon be discharged from their recognizance.

Since that decision of the supreme court of the United States, the circuit court of the United States (Ninth circuit), Judge Field presiding, held that, while the accused was testing the validity of the indictment on the ground that it stated no offense, he might be admitted to bail, and, if he were, the recognizance which he should give would be valid and binding, although the indictment

itself should subsequently be adjudged to be void, as charging no offense: U. S. v. Reese, 4 Sawy., 635. The circuit court in the case last named said that "the authority of the court to pass upon the validity of the action of the grand jury, and over the defendant while this validity is under consideration, is not an usurped authority, but is an authority essential to the exercise of the general jurisdiction with which the court is clothed over all offenses cognizable under the laws of the United States."

If the doctrine contended for by the appellants is correct, then, to use the language of Judge Field again, in the last-named case, "if the court should refuse to look into the indictment, and to pass upon its validity, the judges would be justly censurable for neglect of duty; but, if the court detained the defendant in custody while considering its validity, the judges would be liable to an action for false imprisonment, if their ultimate decision be that the indictment was void."

At the time that the accused in the case before us was required to appear, the question was under consideration in the courts, although not in this case, whether unlawful cohabitation was a continuous offense, or whether it could be segregated into two or more offenses, and it had not then been held that it was one offense only. In this case, the point had not even been raised, nor was it ever raised by the accused at any time, nor by the sureties themselves, until this action on the undertaking was instituted. The principal might have raised the objection at the time of giving the bail, but he made no such objection then, nor did he make any such objection upon the trial. Not having appeared for trial, a denial of his liability to arrest was a privilege which belonged to him, to be made at the proper time; and it did not belong to his sureties after the time had expired for an application for exoneration for the sureties, and after the bail had become fixed: Stever v. Somberger, 19 Wend., 121, 24 Wend., 275; Lyon v. Auchincloss, 12 Pet., 234.

In the case of Beers v. Haughton, above referred to, there was no question pending as to the validity of the charge or of the arrest; there was no question of doubt

to be settled, but the accused's right to a discharge from custody was absolute, clear, and unqualified. Had there been any such unsettled question as in the present case, it is manifest that the court would have held that the accused was not entitled to his immediate discharge had he been surrendered, or had he appeared at the proper time. The doctrine of Beers v. Haughton is grounded upon the idea that the surrender of the accused would have been an idle ceremony, because he would have been immediately released from custody, and the bail could have pleaded that as much as they could have pleaded the death of the accused: Duncan v. Darst, 1 How., 308. But the death of the principal could not have been pleaded after the bail was fixed: Davidson v. Taylor, 12 Wheat., 604; Olcott v. Lilly, 4 Johns., 497.

So we do not see that the doctrine of Beers v. Houghton is at all applicable to the case at bar; for nothing whatever appears in this case to show that the accused would have been entitled to his immediate discharge if he had appeared or been surrendered. On the contrary, he could have been held and tried upon the charge, to answer which the undertaking herein sued on was given. There can be doubt of this fact. The only ground that could have been urged against his being so held and tried, would have been that he had already been tried, and convicted or acquitted, upon another charge for the same offense, if such had been the fact; but such does not appear to have been the fact, and, of course, it could not have been pleaded or urged. There is, therefore, no ground nor reason for saying that the undertaking herein sued on is a nullity.

The charge being valid, the undertaking to answer thereto is valid. The action upon the other undertaking, the one sued on in case No. 6599, above referred to, has gone to judgment, but such judgment was not paid nor otherwise discharged, nor pleaded in defense to this action, but that case is still contested and pending on appeal to the supreme court of the United States from the judgment therein.

With the present case in judgment, then, two judgments