Nichols v. United States, 2141.

• Decision Date: 01 November 1927
• Docket Number: No. 2141.,2141.
• Parties: NICHOLS v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

22 F.2d 8 (1927)

NICHOLS v. UNITED STATES.

No. 2141.

Circuit Court of Appeals, First Circuit.

November 1, 1927.

Charles A. Kiernan, of Providence, R. I. (Daniel T. Hagan, of Providence, R. I., on the brief), for plaintiff in error.

Russell P. Jones, Asst. U. S. Atty., of Providence, R. I. (John S. Murdock, U. S. Atty., of Providence, R. I., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

The question in this case is whether Nichols is liable as surety as a bail bond. Dewey M. Parker was indicted for conspiracy to import, transport, etc., liquor, and to bribe the Coast Guard. He was arrested. On April 9, 1926, he was ordered to recognize in the sum of $5,000. Bail was taken in open court, in two separate recognizances for $2,500 each, in both of which Parker was principal — one with Nichols as surety, and the other with the Southern Surety Company as surety. The first applicable docket entry is as follows: "April 9, 1926. Defendant Dewey M. Parker produced from custody and recognizes in $5,000 with two sureties, Walter G. Nichols and Southern Surety Company of Des Moines, Iowa, each in the sum of $2,500." The next pertinent docket entry reads: "October 20, 1926. Bondsman for Dewey M. Parker, Southern Surety Company of Des Moines, Iowa, surrenders principal and is discharged. Deft. Parker gives new bond in sum of $2,500, with Columbia Casualty Company of New York, surety." On December 6, 1926, Parker was called for trial and made default. Thereupon Nichols and the Columbia Casualty Company were called in open court, and a default entered against each. A writ of scire facias was issued, returnable forthwith. Judgment was entered against the Columbia Casualty Company and paid. Nichols defended, but was held liable.

Nichols' main contention, and the only one we find it necessary to consider, is that Parker's surrender by the Southern Surety Company ended all liability of both sureties under the original bailment. We think this contention is well grounded.

While sureties on a bail bond have certain rights over the principal which do not accrue under an ordinary suretyship, the familiar rule of strict construction applies. Reese v. United States, 9 Wall. 13, 21, 19 L. Ed. 541. The doctrine is stated by the Supreme Court in Smith v. United States, 2 Wall. 219, 235, 17 L. Ed. 788, as follows:

"When the contract of a guarantor or surety is duly ascertained and understood by a fair and liberal construction of the instrument, the principle, says Chancellor Kent, is well settled, that the case must be brought strictly within the guaranty, and the liability of the surety cannot be extended by implication. 3 Commentaries (10th Ed.) 183; Birkhead v. Brown, 5 Hill, 635. Liability of a surety, say the court in McClusky v. Cromwell 11 N. Y. 1 Kernan, 598, is always strictissimi juris, and cannot be extended by construction; and this court, in the case of Leggett et al. v. Humphrey, 21 How. 76 16 L. Ed. 50, adopted the same rule, and explicitly decided that a surety can never be bound beyond the scope of his engagement. United States v. Boyd et al., ...