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*430The opinion of the court was delivered by

Beasley, Chief Justice.

This writ of error rests upon the assumption that when, in the criminal court, an order was entered in the minutes thafput an end to the then pending prosecution, that thereby the obligation of the recognizor was conclusively discharged. In the brief of counsel, the problem is thus formulated: “ The entry of a nolle prosequi by the order of the court, on motion of the prosecutor, is a discharge of the bail.”

But this court is of opinion that this contention is a manifest fallacy. In order to sustain the proposition, it would be necessary to suppress an important and clearly-expressed stipulation in the recognizance itself. As appears from the pleading in the case, this instrument now in question is in the proper and customary form, and imposes a twofold objection—that is to say, that the defendant in the indictment will first appear and stand to and abide “the order and judgment of the court in the premises, and in the second place, will not depart the said court without leave.” In the present instance, this latter stipulation was admittedly violated, as there is no pretence that the withdrawal of the defendant from the court had been judicially sanctioned.

And it is also to be noted that this engagement that the defendant will not depart the court without leave is not merely ancillary to the promise that he will abide the judgment of the court, but it is an additional and independent term of the contract. In its absence, our criminal procedure would be radically imperfect. It is intended to provide, and does provide, for the occasion when a particular form of prosecution may be terminated, but when, in another mode, the prosecution is to be continued. In the case before the court, a nolle prosequi was entered, the effect of which was, if it remained in force, to vacate and annul the then existing indictment, but it did not conclude the prosecution for the offence, for another indictment could have been found. And if, in that condition of things, the prosecutor had stated to the court that the state intended to present the matter to the next *431grand jury, it is obvious that the court, if applied to, would not have ordered an exoneration to have been entered on the bail-piece. The importance, therefore, of the requisition that the defendant in the prosecution cannot be discharged until he has obtained formal judicial consent to such result, is plainly apparent. In the present instance, there is much reason to believe that if the motion had been made to discharge the prisoner on the ground that a nolle prosequi had occurred, such motion would have been rejected, inasmuch as the rule for judgment on the abandonment of the existing procedure was ordered to be erased from the minutes, the implication being that the entry had been made by mistake or without authority. If this were a case in which a judgment putting an end absolutely to the prosecution for the offence, such as would ensue in a verdict of acquittal or conviction, an entirely different question from that we are .now considering would have been presented, for, in view of such a final determination, the stipulation not to depart from the court without leave would have been bereft of all substantial force. What the effect of such a course of law would be it is not necessary to consider. All that the court at present decides is that the cessation of the criminal proceeding in a certain form, leaving a potentiality of its further prosecution in a different method, does not, ipso facto, discharge the defendant from the obligation of his recognizance.

As it appears from the record before us that the defendant did depart the court without leave, the recognizance was thereby forfeited, and the judgment should therefore be affirmed.

*For affirmance—The Chancellor, Depue, Gummere, Magie, Van Syckel, Bogert, Krueger, Nixon. 8.

For reversal—Garrison, Barkalow, Dayton, Hendrickson. 4.

Chief Justice Beasley was prevented by sickness from being present when this cause was disposed of.

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