Smith v. Commonwealth
| Decision Date | 02 June 1891 |
| Citation | 91 Ky. 588,16 S.W. 532 |
| Parties | SMITH v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Warren county.
"To be officially reported."
Marc Mundy, for appellant.
P. W Hardin and N. A. Porter, for the Common wealth.
The judge of the Warren county court issued a warrant of arrest against Charles J. Van Arnold for illegally causing the arrest and imprisonment of J. F. Garrett in the jail of Warren county, Ky. Said Arnold was arrested and lodged in the jail of Jefferson county, under said warrant, and, upon the appellant becoming his bail for his appearance before the county judge of Warren county, he was released from jail. Before said bond was returned to the Warren county court, the appellant, upon a certified copy of the bond, intending to surrender said Arnold, caused him to be arrested and put in the jail of Jefferson county. He was taken from said jail on a writ of habeas corpus issued by Judge TONEY, of the Louisville law and equity court, and, upon the trial of the same by said judge, he was "released and discharged." Said Arnold failing to appear before the county judge, and the bond having been sent to the circuit court with the proper indorsement, and appellant having been summoned to appear before that court to show cause why judgment should not be rendered against him on the bond, he relied on the release and discharge of Arnold by Judge TONEY as releasing his obligation on the bond. The circuit court having decided against him, he has appealed.
It is held, in the case of Com. v. Bronson, 14 B. Mon 393, that, in legal contemplation, a prisoner notwithstanding he is bailed, remains in the custody of his surety, and he has the right to surrender his principal, at any time, to be released of the custody of him and responsibility as his surety on the bond; that the surety did not legally surrender his principal to the jailer consequently the jailer held the principal as the agent of the surety, which was illegal; that, the principal being thus illegally restrained of his liberty, his remedy was by writ of habeas corpus; that the justice who tried this writ had jurisdiction to try it; and he having tried it, and discharged principal, when he ought to have required him to give a new bail-bond for his appearance, released surety from responsibility on the bond. Here the surety surrendered his principal to the jailer of Jefferson county, instead of to...
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