¶1To a complaint upon a forfeited recognizance taken in a criminal case, alleging for breach the failure of the principal to appear according to the terms of the condition, an answer was filed by the surety, alleging that, after the recognizance was forfeited, and before the commencement of the suit, the principal enlisted as a volunteer in the army; wherefore the surety could not surrender him.
¶2This is no defense. Eor aught that appears, the principal enlisted by the surety’s advice; nor do we know that the military authorities would not at any time surrender him to the surety on application.
¶3The judgment is affirmed, with two per cent, damages and costs.