Carr v. Sutton. ubmitted
| Decision Date | 27 February 1912 |
| Citation | 70 W.Va. 417 |
| Parties | Carr v. Sutton.ubmitted |
| Court | West Virginia Supreme Court |
A bond to indemnify bail on a criminal recognizance is not void as against public policy, (p. 419).
Where the obligation of bail is assumed the surety becomes in law the jailer of his principal, the custody of him being but a continuance of the original imprisonment, the surety being subrogated to all the rights and means which the state possesses to make his control effective, (p. 420).
Even without bail piece, which he may have by statute, the bail may exercise his right at common law to arrest his principal at any time for the purpose of surrendering him, as an incident to his engagement, (p. 420).
Where bail in disregard of his duty, and when required by a surety on a bond of indemnity taken by him, negligently fails to arrest and deliver his principal into custody and negligently allows him to escape and be and remain a fugitive from justice, such surety will be discharged, and may on that ground defend any action on bis bond by the bail against him. (p. 421).
(Brannon, President, absent.)
Appeal from Circuit Court, Harrison County.
Bill in equity by William H. Carr against James E. Sutton and others. From a decree for plaintiff, defendants Myers appeal.
Reversed and Dismissed. Davis & Davis and E. B. Templeman, for appellants. Edward 67. Smith, for appellee.
The decree of October 26, 1909, appealed from, among other things, adjudged the defendant Sntton indebted to the State of West Virginia upon his bail bond, on which plaintiff Carr was surety, in the sum of $2,619.85, with interest and costs; and that the defendant, Bezin C. Davis, &ud the appellants, Jesse Meade Myers, and Harvey G. Myers, who with said James E. Sutton, as principal, and Alverta M. Sutton, not served with process, signed as sureties the bond to Carr, sued on, to indemnify him as bail for Sutton, should pay to the State of West Virginia, said debt and costs in exoneration of Carr.
From said decree appellants, Jesse Meade Myers and Harvey G. Myers, have appealed.
In their answers to the bill, among other defenses interposed and relied on here are these: First, that said bond of indemnity given to Carr, is void as against public policy; Second, that it is void, because the name of R. C. Davis, who signed the original bond, referred to as the burned bond, was forged to the duplicate bond, taken and delivered to Carr, and appellants thereby discharged; Third, that plaintiff, Carr, though notified and required by his indemnitors, before and after the indictment, to do so, had negligently, willfully and wrongfully failed, in discharge of his recognizance of bail, to arrest Sutton and deliver him into the custody of the law, but on the contrary had allowed him to escape and be and remain a fugitive from justice. Wherefore and by reason whereof appellants had been thereby discharged as sureties from any and. all liability to Carr. And they prayed for relief accordingly.
As to the first point. The bond of indemnity here involved is the identical bond we had before us, in Carr v. Davis, 64 W. Va. 522. The point was made in that case that the bond was void on principles of public-policy, and ought not to be enforced, for the relief of the bail. The proposition was there denied. That decision having been by a divided Court, we are strongly urged by counsel in this case to reconsider it, but the Court standing as it did then is not disposed to do so, and is of opinion to overrule the point.
We are likewise of opinion to overrule the point, that the name Rezin Davis on the duplicate bond is a forgery. Davis was adjudged in the former case and has been in this to be liable on the bond; he has not appealed, and appellants have in no way been prejudiced. Moreover, on conflicting evidence the court below ruled against appellants on the question of fact. Certified copies of two decrees in other suits against Davis, lodged here, though not a part of the record, show that real estate of Davis has been sold to satisfy his liability to Carr. Of course we could not look to those decrees if the fact was material, but we do not regard it so.
The last point, that appellants have been discharged by the wrongful and willful negligence of Carr, presents a serious question. It will prove enlightning to first inquire what are the rights, duties and obligations of the bail, with respect to the person of him who, standing charged with crime, is committed to him as bail. By statute, section 7, chapter 156, Code 1906, if the accused be let to bail, the recognizance shall be for his appearance before the court, having recognizance: of the case. The condition of the recognizance, signed by Sutton and Carr, involved here, was conditioned that Sutton should appear on the first day of the next term of the circuit court of Harrison county, to answer any indictment that might be preferred against him for the offense charged, and not to depart thence without leave of the court. The record shows that the next term of that court began on the 11th day of December, 1906, and that an indictment was returned against Sutton, by the grand jury, December 13, the third day of the term. The recognizance of Carr, therefore, bound him to have Sutton before the court on the first day of the term, and to not allow him to depart therefrom without leave of the court, a very high obligation imposed by law, which he voluntarily assumed, on becoming bail, and to which he could not be negligent or indifferent.
But while the obligation of Carr thus assumed was great, his power over Sutton, given by section 8, chapter 156, Code 1906, as well as by the common law, was also great. By said section 8 he was entitled at any time on application to the clerk to a bail piece, authorizing him or his agent, at any time, and at any place, within or without the state, and without further process, to arrest Sutton so delivered to bail and commit him to jail. 3 Am. & Eng. Ency. Law, 708, and cases cited from numerous states.
Moreover, the law is, that when the obligation of bail is assumed the surety becomes in law the jailer of his principal, and his custody of him is but a...
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