The State vs. Jones. made after the bond was taken, and after Porter had appeared in Jefferson court in obedience to its conditions, and there was no order of court given for Porter to stand on his bail, or directing the bail to be held for the appearance of defendant before the circuit court of Drew county, and that the change of venue was made without the consent of the appellee. To these defenses, forming two separate paragraphs of an answer, the state demurred; the court below sustained the demurrer as to the second defense, and overruled it as to the first. Section 4823, Gantt's Digest, provides, that attorneys-at-law shall not be taken as bail without leave of the court. We are inclined to the opinion, in which we are sustained by authority, that this is a mere directory law, and that it does not lie in the mouth of the bail to set up this defense. Commonwealth v. Ramsey, 2 Duval (Ky.), 385; Jack v. People, 19 Ill., 57. Yet, in the view we take of this case, we do not deem it necessary to decide this question. For if it appear that, upon the whole record, the judgment of the court below was right, it must be affirmed. Let us, therefore, see if the second defense is good, and if not, whether the demurrer to it did not reach the defects in the state's own case. If the appellee had proved what he averred in the second. paragraph, that Porter appeared and was in custody as the law required, and that the Jefferson criminal court gave no order directing the bail to be held for the appearance of Porter in the Drew circuit court, it would have been sufficient. We believe the condition of the bond is broad enough to have required Porter to have obeyed the order of the court to go to Drew, and to surrender himself in final execution, if convicted, if the court of Jefferson county had so ordered. In cases like this, the whole record is before the court, and even if a defense was defectively pleaded, judgment should VOL. XXIX.-9 The State vs. Jones. not be given where that record shows it would be illegal and unjust. The demurrer should, in such case, reach back to the defect in plaintiff's case as in pleading. In this case, the record shows that the order changing the venue from Jefferson criminal court to the Drew circuit, expressly ordered Porter into the custody of the sheriff, and directed the sheriff of Jefferson to "transmit his body" to the sheriff of Drew. Giving the fullest scope to the last clause in the bail bond, and holding that it would bind the bail until the principal, on conviction, was surrendered in execution without any order of court remitting the prisoner to his bail, which we do not here intend to decide, still, in this case, the express order of the Jefferson criminal court materially affected the rights of the bail. The law considers a prisoner on bail as in the custody of his surety, who has the right to look after him, and arrest him any where, and surrender him to proper authority. With such an order before him, it would have been a difficult undertaking for appellee to have attempted to control Porter's movements as against the sheriff. Competent authority having impaired the right of the bail, we cannot hold him legally responsible. If Porter escaped, it was from the sheriff of Jefferson or Drew county, whichever, under this order, had the body. If Jefferson had transmitted, as ordered, the escape was not from him. Otherwise, on this record, he appears to be the responsible party. The escape is certainly not from the bail, who, in law, was his custodian, while his bond was unperformed, and he at large on it. Finding, on the whole record, that the judgment of the circuit court of Drew county is right, the same is affirmed. Mr. Justice HARRISON did not sit in this case. Snow et al. vs. Grace. SNOW et al. vs. GRACE. 1. PRACTICE: Substituted declaration. It is not error to permit a new declaration to be substituted for one that has become almost illegible from use. 2. CONTRACT: Consideration. The compromise of litigation is sufficient consideration for an express 3. CONFISCATION: Proceedings and evidence necessary to sustain. 4. AGENCY: Ratification. An instruction that the acceptance by the principal, of a valuable consideration for property sold by a general agent ratified the sale, and the principal could not repudiate it without returning, or offering to return, the consideration, held to be substantially good in view of the evidence, though it would have been more correct to have qualified the effect of the acceptance by the principal's knowledge of the transaction. 5. EVIDENCE: Opinion of impeaching witness. The rule heretofore adopted by this court, allowing an impeaching witness to testify as to his belief, adhered to, though questioned. 6. — Of previous reputation for truth and veracity. The admission of testimony as to the reputation of a witness for truth and veracity, at some other time, and at a different place from that of his residence at the time of testifying, is in the discretion of the court; and it is only in cases of gross abuse, that the discretion will be controlled, especially where no suprise is shown. APPEAL from Jefferson Circuit Court. 29 131 55 243 Snow et al. vs. Grace. WILLIAMS, Sp. J. This case was before this court on a former occasion, and the judgment rendered therein by the circuit court of Jefferson county was reversed, and the cause was remanded. On the filing of the mandate of the supreme court the cause was regularly tried by a jury, which rendered a verdict in favor of appellee, upon which judgment was rendered. From this judgment defendants below have appealed to this court. Pending the trial defendants below excepted to sundry rulings and decisions of the court; and at the conclusion of the trial, pursuant to leave given by the court for time to prepare their bill of exceptions, presented the same, which contained all the evidence, instructions of the court, etc. They also moved for a new trial on the grounds, as stated: 1. That the verdict is contrary to evidence. 2. That the verdict is contrary to law. 3. That it was contrary to the instructions of the court. 4. Because the court refused to give appellant's instruction. 5. The court erred in giving appellee's instruction. 6 and 7. The court erred in admitting testimony tending to impeach appellants. 8. The court erred in admitting testimony of appellee, and in refusing testimony of appellants. The court below overruled this motion, and appellants excepted. The appellants here urge that the court below erred in allowing plaintiff to file a new declaration. The order states that defendants (appellants) waived their exception to the new declaration and bond, and argued the motion to strike out the affidavit (in attachment), which was by the court sustained; and that the court allowed the new declaration to be substituted, because the old one, from use, had become so defaced as to be almost illegible. There is nothing in this objection, even if appellant had not waived it. Snow et al. vs. Grace. It is next argued that the grounds of the motion for new trial are well taken, and that the verdict is against law and evidence; that Grace had no property in the bagging and ties, for the price of which this suit was brought, on the ground, first, that the express promise, on the part of the appellants to pay, which there is testimony tending to prove, is without consideration, if Grace had no property. To this it is sufficient to say, that the compromise of litigation, which the testimony proved existed in this case, is a sufficient consideration for an express promise; second, that there is for the same reason no implied promise to pay; that Key, who sold them to Grace, had no authority from Sheppard, the owner, to sell, and if he had authority from Sheppard, still it was abandoned property within the meaning of the act of congress, and had been confiscated, and that we must presume this confiscation from the facts proved. The appellee introduced evidence on the trial tending to prove that a short time before the occupation of Pine Bluff, Arkansas, by the Federal army, in 1863, he had bought of one Key, who, the evidence tended to show, was the general agent and manager of James Sheppard, 250 bales of cotton, on the place of Sheppard, in Jefferson county, Arkansas, known as the Island place, together with all the bagging and ties and rope on said place, being bagging and rope enough to bale one thousand bales of cotton; that the bagging was worth one dollar per yard, and the rope and ties fifty cents per pound at the time appellants used them. The evidence tended to prove subsequent ratification by Sheppard of Key's action, by receiving the price paid to him by Grace for the cotton and bagging, rope and ties, and that appellants had expressly promised to pay plaintiff for the bagging, etc. To this testimony appellants objected at the time of its introduction, and the court overruled the objection and permitted the |