nounced. Under somewhat different statutory provisions, however, there is authority to the effect that the accused may be absent even at the time of imposing sentence without forfeiting the recognizance, the condition of which is satisfied if he appears for execution of the sentence.5 54. Effect of Want of Jurisdiction or Illegality of Detention.A bail bond or recognizance invalid by reason of the fact that it was not taken by competent legal authority is not binding either on the principal or on his sureties, nor can it be enforced as a common law obligation, nor can such a bond be given validity by a subsequent entry by the court of a nunc pro tunc order approving the bond. But where a judicial officer appointed in pursuance of an act of the legislature afterward declared unconstitutional is considered to be an officer de facto, a recognizance entered into before him is valid." Where the arrest has been made without legal warrant there appears to be some divergence of opinion as to whether a bail bond entered into to secure the release of the prisoner from such illegal restraint is a valid obligation. Where for example a person is arrested as a fugitive from justice from another state without any legal accusation or showing that he has committed a crime against the laws of that state, a justice not having jurisdiction to issue the warrant would have none to take a recognizance for the release of the person arrested and the recognizance would be void both as to the principal and the sureties. But notwithstanding there be actual "duress of imprisonment" or illegal detention of the principal, yet if a surety having full knowledge of the circumstances voluntarily enters into a bond, he will be bound thereby. This rule would not be applied where, in addition to duress of the principal, the bail or recognizance is taken by a court having no jurisdiction or by an officer without legal authority, and is consequently a nullity. And even if the sureties were not aware of the illegality of the arrest and detention they are bound, for the person upon whom the duress was practiced is the only one who can take advantage of it as a ground of defense. It cannot be set up by a stranger nor by a surety on whom no restraint was imposed. It is possible that a near relative of the accused might be excepted from this rule upon the principle apparently that in such case the surety as well. as the principal acts under duress.8 5. State v. Johnson, 82 Kan. 450, 108 Pac. 793, 27 L.R.A. (N.S.) 943 and note. 6. Territory v. Woodring, 15 Okla. 203, 82 Pac. 572, 6 Ann. Cas. 950, 1 L.R.A.(N.S.) 848. 14 Am. Dec. 104 note. for a contrary statement. 14 Am. Dec. 104 note. 7. Brown v. O'Connell, 36 Conn. 432, 4 Am. Rep. 89. 8. State v. White, 40 Wash. 563, 82 Pac. 907, 2 L.R.A.(N.S.) 563 and note. 55. Effect in Civil Proceedings.-The rule laid down as to criminal bail, which holds that bail entered into before an officer having no authority to take such bail is void, is equally applicable to civil cases, and therefore special bail taken by a sheriff out of his own county is extra-official and void, and such fact may be pleaded in defense to an action thereon. An affidavit prescribed by statute to hold a defendant to bail in a civil action is a part of the process to bring him into court. Any objection to it on the ground of defect, deficiency, or irregularity may and must be taken advantage of by the defendant in the first instance before he has given bail or entered appearance. If he fails to do so he must be considered to have waived his objection, and neither he nor his bail can afterward avail himself of the objection.10 And a recognizance entered into upon behalf of a poor debtor cannot be avoided by showing that the affidavit upon which his arrest was ordered was wilfully false when made, if it appears that the affidavit was proper in form and substance, that the magistrate had jurisdiction to act upon it, and that he judicially found the facts alleged in it to be true, and signed a certificate authorizing the arrest. Nor can a surety set up duress as a defense to an action upon the bail bond on the showing that the defendant was arrested on a writ unlawfully issued, the oath not being sufficiently formal to justify his arrest, for the duress is not that of the surety but of the principal, and the person on whom the duress was practiced is the only one who can take advantage of it as a ground of defense. It cannot be set up by a stranger nor by a surety on whom no restraint was imposed.12 But it has been held that a bond given to secure a release from unlawful custody is without consideration and void.13 56. Effect of Respite or Stay of Execution.- The liability of the sureties upon a recognizance forfeited by failure to comply with a condition providing for the appearance of the principal at a stated term of court is not avoided by the failure of the state's attorney to take judgment against them at the term stated therein.14 The forfeiture upon breach of the condition fixes the liability of the sureties absolutely, and the failure to enter judgment constitutes a respite and amounts merely to an order that the forfeiture should not be estreated for a certain period. This power has always been exercised and seems essential to the administration of justice. Such indulgence cannot discharge the sureties. It is for the benefit of the principal. and themselves, and if the principal should surrender himself subse 9. Harris v. Simpson, 4 Litt. (Ky.) 165, 14 Am. Dec. 101. 10. Sedgewick v. Houston, 9 Houst. (Del.) 113, 32 Atl. 12, 43 A. S. R. 165. 89, 14 N. E. 932, 4 A. S. R. 284. 13. 14 Am. Dec. 104 note. 11. Everett v. Henderson, 146 Mass. 441, 41 Am. Dec. 271. quently the court could remit the forfeiture.15 In civil proceedings the question as to the effect of a stay of proceedings or of execution upon the liability of bail has occasioned some discussion. As a general principle it seems established that an agreement by the plaintiff to a temporary stay of execution will not exonerate the special bail in the action. But this rule has been contested upon the ground that the power of the bail in civil cases to arrest their principal is derived from the right of the plaintiff to have satisfaction of the body of defendant and ceases with it, whether the cessation be induced by the act of the plaintiff or the act of the law, and also upon the general principle applicable to sureties in equity that a change in the time for the performance of the contract which changes the obligation and the risk of the surety will discharge the surety.1 16 57. Effect of Failure to Find or Destruction of Indictment, or Invalidity of Order of Commitment.-Where the recognizance, as is customary, requires the principal to appear to answer a certain charge and not depart without leave of court, the sureties are not discharged by reason of the fact that a nolle prosequi was entered as to the original indictment or information, and another and different one exhibited, for the obligation of the recognizance is not satisfied unless the principal appears to answer any indictment or information exhibited against him before he receives his discharge, and when the recognizance requires the principal to answer a certain indictment before a certain court it is no answer to a failure to appear in such court as required, that no indictment was pending against the principal therein; and where a defendant is required to appear during a certain term of court, the fact that no indictment is found against. him does not relieve him of the necessity for such appearance.17 A conflicting rule has been established in some of the decisions, it being held that there is no liability upon the part of the principal in a recognizance to appear, or his bail to procure his appearance, until after indictment, and therefore if no indictment is found or if the indictment found fails to charge an offense against the state, or if an indictment is quashed,18 or a demurrer thereto is sustained, in which event a reversal of the judgment on the demurrer would not revive. the liability on the bond, the recognizance cannot be forfeited.19 But the destruction of the indictment does not affect the liability of bail, for in such a case parol evidence as to its contents is admissible.20 15. Mishler v. Com., 62 Pa. St. 55, 1 Am. Rep. 377. 16. Henderson v. Lynd, 2 Mart. O. S. (La.) 57, 5 Am. Dec. 726; Culliford v. Walser, 158 N. Y. 65, 52 N. E. 618, 70 A. S. R. 437; Johnson v. Boyer, 3 Watts (Pa.) 376, 27 Am. Dec. 363. 17. Com. v. Teevens, 143 Mass. 210, 9 N. E. 524, 58 Am. Rep. 131; People v. Dennis, 4 Mich. 609, 69 Am. Dec. 338. 18. Candler v. Kirksey, 113 Ga. 309, 38 S. E. 825, 84 A. S. R. 247 and note. 19. 20 L.R.A. (N.S.) 862 note. 20. People v. Dennis, 4 Mich. 609, 69 Am. Dec. 338. 84 A. S. R. 248 note. It is also established that a bond is not invalid because of the invalidity of the order of commitment, where the arrest and detention are valid.1 IX. DISCHARGE OR EXONERATION OF BAIL 3 58. In General.-In all criminal cases where a party accused of crime is liberated on bail, the principal and sureties bind themselves that the principal shall appear before the court at the time and place appointed, and answer to the crime charged against him. The form of the recognizance is without reservation or condition, but the law excuses the sureties if they are prevented by the act of God, or by the act of the law, or by the act of the obligee or of the public enemy, from fulfilling the requirements of the bond. The same rule is true in civil cases. The act of a stranger does not excuse the performance of the condition, for the obligor presumably has undertaken to retain the custody of the defendant as against outside influence, and of course if the impossibility of performance of the conditions of the bond or recognizance arises from the act of the obligor it cannot be advanced as an excuse for failure to perform. In some jurisdictions it is provided by statute that certain facts shall constitute a valid defense for failure to perform the conditions of a bond or recognizance, but in the absence of such statutes the rule is and should be that uncontrollable circumstances preventing appearance pursuant to the stipulations in a bond are sufficient to excuse a forfeiture.5 59. Surrender of Principal.-Bail may at any time exonerate themselves by surrendering their principal to the proper authorities, or the principal may voluntarily surrender himself to the proper authorities before the day stipulated in the bond, and in such event the surety is discharged. Such is the rule in both civil and criminal. cases. The principal may make a voluntary surrender of himself without the agency or even the knowledge of his bail; and placing himself in the custody of an officer for the purpose of being detained is an effectual surrender by the principal to discharge the surety. If one of several sureties in a bond surrenders the principal, this absolves all the sureties from liability, though the principal afterwards 1. Weldon v. Colquitt, 62 Ga. 449, 35 Am. Rep. 128. 2. Belding v. State, 25 Ark. 315, 99 Am. Dec. 214, 4 Am. Rep. 26 and note; Adler v. State, 35 Ark. 517, 37 Am. Rep. 48; Taintor v. Taylor, 36 Conn. 242, 4 Am. Rep. 58, affirmed in 16 Wall. 366, 21 U. S. (L. ed.) 287; Lamphire v. State, 73 N. H. 463, 62 Atl. 786, 6 Ann. Cas. 615; People v. Manning, 8 Cow. (N. Y.) 297, 18 Am. Dec. 451. 3. Brown v. Dillahunty, 4 Smedes & M. (Miss.) 713, 43 Am. Dec. 499. 4. Adler v. State, 35 Ark. 517, 37 Am. Rep. 48. 5. State v. Funk, 20 N. D. 145, 127 N. W. 722, Ann. Cas. 1912C 747, 30 L.R.A. (N.S.) 211. 6. Com. v. Overby, 80 Ky. 208, 44 Am. Rep. 471; Yarbrough v. Com., 89 Ky. 151, 12 S. W. 143, 25 A. S. R. 524; State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D 191; Neto escapes. The surrender may also result from the act of the state, in which event it will have the same effect of discharging the sureties, for any act done by the state or its officers, under lawful authority, that deprives the sureties of control over their principal, changes the relation the parties sustain to each other and their relation to the state, and thereby relieves the sureties from their obligation. Where the accused has been produced for trial and has been actually taken into custody of the law, the bail are discharged, and a vacation of the order directing that the accused be taken into custody cannot restore him to the custody of the bondsmen. After conviction it is customary to deliver up the accused to the custody of the law, and in some jurisdictions it is held to be the duty of the proper officer to take the accused into custody immediately after conviction, and therefore the liability of bail ends with the return of the verdict of conviction, for the accused thereupon is presumed to be taken from their control into the custody of the law. In some decisions, however, it is held that the bail are not discharged until they have surrendered their principal for sentence and execution thereof.10 60. Surrender of Principal in Civil Bail.-It seems that special bail in civil cases may exonerate themselves as in criminal cases by a surrender of their principal at any time before their liability to pay the judgment becomes fixed. But while in criminal cases it is generally permissible for the sureties to surrender their principal after default and forfeiture and before judgment upon the bond or recognizance, and thereby secure either exoneration from liability or at least a remission of the whole or part of the penalty, in civil cases the rule is quite different, for after judgment has been secured against the principal and a capias ad satisfaciendum has been issued against him and returned non est inventus, the liability of the bail becomes absolutely fixed and cannot be avoided by a subsequent surrender of the principal before judgment on the bond. In some jurisdictions, however, it is expressly provided by statute that the surrender of the principal at any time before judgment on the bond will discharge the liability of bail. But where bail have become fixed prior to the passage of such a law the right of the judgment creditor to his debt from them is a vested right arising ex contractu and cannot be graph Mfg. Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962, 134 A. S. R. 886, 27 L.R.A. (N.S.) 333; State v. Schenck, 138 N. C. 560, 49 S. E. 917, 3 Ann. Cas. 928. 7. 99 Am. Dec. 218 note. 9. Miller v. State, 158 Ala. 73, 48 11. Henderson v. Lynd, 2 Mart. O. 8. Cooper v. State, 5 Tex. App. 215, v. Boyer, 3 Watts (Pa.) 376, 27 Am. 32 Am. Rep. 571. Dec. 363. 1 |