Busby v. State

• Decision Date: 01 January 1854
• Citation: 13 Tex. 136
• Parties: BUSBY AND OTHERS v. THE STATE.
• Court: Texas Supreme Court

13 Tex. 136

BUSBY AND OTHERS

v.THE STATE.

Supreme Court of Texas.

1854.

Appeal from Guadalupe. In this case a judgment was rendered against the defendants on a scire facias sued out upon a forfeited bond, given by Busby, the first-named appellant, with the other appellants as his security. The record shows that a true bill had been returned by the grand jury of Guadalupe county on the 27th day of October, A. D. 1852, being at the Fall Term, 1852, of the District Court for that county. On the 29th day of the same month a capias was issued, directing the Sheriff forthwith to take the body of the said Busby and have him before the Court, then in session in the town of Seguin, to answer an indictment exhibited against him for an assault and battery, on which the Sheriff made the following return: “came to hand on the 29th October, 1852,” (signed by the Sheriff;) “executed by personally arresting the defendant, H. Busby, on the 30th October, 1852.” Then follows a bond entered into by Busby, with the other appellants as his securities, conditioned for Busby's appearance before the District Court of the county on the 30th day of Otober, 1852, (the day of arrest,) and then and there remain and abide the order of the said Court, from day to day and from Term to Term, until discharged by the said Court. This bond was approved by the Sheriff, according to his indorsement. It bears no date; but from the Clerk's indorsement it was filed on the 3d of November, A. D. 1852. The next order taken is at the next Term, 1853, when it appears that Busby was called out on his bond, and made default, and judgment nisi taken against Busby and his securities, and scire facias awarded. The scire facias was issued against the securities, Anderson and King, and returned to the next succeeding Term of the Court, and notice by publication in a newspaper to Busby. At the next Term, the scire facias being returned executed on the securities, and publication having been made of notice to Busby, the defendants by their counsel moved to quash the bond for various reasons. The motion was overruled and judgment made final by the Court, from which defendants appealed.

J. Ireland, for appellants. The bond should have been quashed on motion in the Court a quo. It is more onerous than the law prescribes, and taken under color of office it will not sustain a judgment. (2 Tex. R., 256; 1 Wat. & Serg. R., 261; 9 Tex R., 1, and cases cited; 5 Pet. R., 115.)

Attorney General, for appellee. This writ is attempted to be prosecuted by Busby while attempting to evade the law and defeat the ends of justice by using the liberty secured him by his bond to flee beyond the jurisdiction of the Court. But this, it is respectfully submitted, he cannot do; the Court is referred to the case of Edwards v. the Republic, Dallam 535, as fully and decisively deciding this point.

As this is an enabling statute and intended to secure the liberty of the citizen, it must be construed liberally, if necessary to effect this purpose; and as the statute authorizes the Sheriff to take a bond in all cases, if there is necessarily a discrepancy between the power of this officer and the conditions of the bond, the latter should be enlarged by construction rather than restrict the former. It may be urged that...