In an action on a recognizance, conditioned for the appearance of a party on the first day of the term to answer to an indictment, and for his abiding the order of the court, and not departing the court without leave, and where the party was not called or defaulted until the fifth day of the term, it is no defense to show that the party indicted was, on the first day of the term, lawfully in the custody of the warden of the penitentiary—having been arrested as a convict, who had escaped ■ therefrom—provided he was again at large, and might have appeared at the time he was so called and defaulted.

Motion overruled.