United States v. Vendetti, 6991.

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: Abbott & Carroll, of Boston, Mass., for defendant
• Citation: United States v. Vendetti, 33 F.Supp. 34 (D. Mass. 1940)
• Decision Date: 03 May 1940
• Docket Number: No. 6991.,6991.
• Parties: UNITED STATES v. VENDETTI.

33 F. Supp. 34

UNITED STATES v. VENDETTI.

No. 6991.

District Court, D. Massachusetts.

May 3, 1940.

Edmund J. Brandon, U. S. Atty., and James J. Sullivan, Sp. Atty., both of Boston, Mass., for plaintiff.

Abbott & Carroll, of Boston, Mass., for defendant.

BREWSTER, District Judge.

This is an action against a surety on a recognizance bond, given in a criminal proceeding. Defendant admits that she entered into a written recognizance as alleged, but sets up facts which she contends exonerate her from all liability on the instrument.

I find the facts of the case to be as stipulated by the parties in an agreed statement of facts, filed at the time of hearing. From this statement, it appears that —

A recognizance was given by Armando Pagliaro (the principal) on May 20, 1936, before a United States Commissioner in this District, and the defendant Ersilia Vendetti was surety on said recognizance in the sum of $2,000.

That said Pagliaro was indicted on June 22, 1936 in the United States District Court at Boston, Indictment No. 13512, and was arraigned before said Court on June 29, 1936, at which time he pleaded not guilty; that the bail with the same surety, namely said Ersilia Vendetti, was allowed to stand continued.

On December 28, 1936, the said Pagliaro was arraigned on another indictment in said court, No. 13695, charging him and others with various crimes against the United States. On this indictment said Pagliaro was held in custody in default of bail until January 5, 1937, at which time he pleaded guilty and was sentenced by this court on four counts, to be imprisoned in a penitentiary for three and one-half years and to stand committed until performed.

While said Pagliaro was being transported to the Federal Penitentiary at Lewisburg, Pennsylvania, by the United States Marshal under a mittimus issued by this court, the said Pagliaro escaped from the United States Marshal.

On January 28, 1937 proclamation was made on Indictment No. 13512 in this court and the said Pagliaro and the said Vendetti were defaulted.

At the time Indictment No. 13512 was called the United States Attorney knew that the defendant Pagliaro had escaped from the United States Marshal and that his whereabouts were unknown.

Since the bringing of this suit said Pagliaro has been apprehended and is now in the custody of the United States Government at the New York City Detention Prison on West Street, New York City.

It is possible to deduce from the early cases of Reese v. United States, 9 Wall. 13, 19 L.Ed. 541, and Taylor v. Taintor, 16 Wall. 366, 369, 21 L.Ed. 287, the rule that if the sovereignty to which the recognizance bond is given renders impossible the performance of the obligation, the surety will be absolved from all liability on the bond. Both cases proceed on the theory that when bail is given, the principal is regarded as delivered to the custody of the surety. If the obligee's acts deprive the surety of this custody, it cannot enforce a forfeiture if the principal fails to appear according to the conditions of the recognizance.

In Taylor v. Taintor, supra, it is also said to be settled law that the bail will be exonerated if performance is rendered impossible by an "act of the law." Thus, the liability of the surety is terminated if a governor of the state in which the bond was given responds to a demand from another state for the surrender of the defendant (Taylor v. Taintor, supra), or a court consents to the removal of the defendant to another jurisdiction (Peckham v. Henkel, 216 U.S. 483, 30 S.Ct. 255, 54 L. Ed. 579), or if the principal is charged with a crime in a Federal court and is in jail serving a sentence imposed by another Federal court. In re James, C.C., 18 F. 853; United States v. Petrone, D.C., 19 F. Supp. 704.

From these decisions, it is clear that a surety may claim exemption from further liability if the sovereignty whose jurisdiction first attaches surrenders the principal to another sovereignty. The implied custody of the principal by his surety cannot prevent the surrender. Beavers v. Haubert, 198 U.S. 77, 85, 25 S.Ct. 573, 49 L.Ed. 950.

The United States indicted Pagliaro for another crime, to which he pleaded guilty, and sentenced him to serve for a stated period in a penitentiary in another state. It thereby took him out of the implied custody of the...