Ainsworth v. Territory

• Decision Date: 21 January 1887
• Citation: 3 Wash.Terr. 270,14 P. 590
• Parties: AINSWORTH AND OTHERS v. TERRITORY.
• Court: Washington Supreme Court

14 P. 590

3 Wash.Terr. 270

AINSWORTH AND OTHERS v. TERRITORY.

Supreme Court of Territory of Washington

January 21, 1887

Geo. M. Foster, for plaintiff in error.

S. C. Hyde, Pros. Atty., for the Territory.

LANGFORD, J.

This is an action brought by the territory on a bail-bond, in which the territory is the obligee and the defendants are the obligors. The bond itself is in the usual form of a common-law bond. Hon. Judge WINGARD was the presiding judge of the court in which the indictment was found, and at which the order of commitment was entered against one of the defendants, who was indicted, in default of his giving bail, for his appearance at said court from day to day and from term to term. In default of such bail, on a warrant upon said order of commitment, the sheriff of Spokane county was holding the prisoner in confinement. The said term was the regular October term of the district court for Spokane county. The judge was not only a presiding judge for this court, but also of several other courts of the First Judicial district. This October term of court was adjourned to meet again on the first Monday of February, and in the mean time the judge went to Walla Walla, his place of residence, and the place where he held court at chambers for the whole district, including Spokane county. While there the attorney for the defendant prepared and offered to him, for acceptance and approval, the bond in question. The judge approved it, and filed it with the clerk of said court. At the time Judge WINGARD, at chambers, approved the bond, at the instance of the defendants, he made an order that the prisoner be discharged, which was also sent to the clerk of said court. Upon learning of this proceeding of the judge and that the order and bond was filed with the clerk, and upon faith that the bond was a good bond, the prisoner was released, and went into the possession and custody of his bondsmen. Judge WINGARD returned, and continued the session of the court; and the prisoner being called, and the other defendants, in due form, and making no appearance, the court caused the default to be entered and bond forfeited.

The defendants claim that after the prisoner was held by the sheriff, the sheriff alone could accept bail, and that the action of Judge WINGARD in accepting and approving the bond was void. If this were so, if the sheriff found the bond which was left with the clerk with intent that it should be delivered and did, upon the faith that it was a good bond, release the prisoner on account thereof, then this was an acceptance and approval by the sheriff by implication. We are satisfied however, that by virtue of his office, a judge of a criminal court of record, in vacation, can accept a bail-bond for the territory. Particularly is it so under our statute, which authorizes the judge at chambers to hear and determine any subject-matter which can be decided without a jury. Code 2138, 2139.

The next error claimed is that the defeasance in the bond is more onerous than the statute permits as to bail-bonds. We think that this is true. Defendants infer that this vitiates the bond itself. Decisions have been read that sometimes, and in some circumstances, courts have held a bail-bond was void on this account. There could not have been any such plea made at common law, in an action for debt upon a bond; yet the common law is the rule of decision in this territory. Duress could have been pleaded. It was probably upon what was considered duress that bonds have been held void, because the same were more onerous than the law permitted. There is no such plea in this case, and no evidence to support such a plea. The evidence...