divested by subsequent legislation permitting the surrender of the principal at any time before judgment.1 12 61. Suubsequent Arrest and Detention of Principal in Same Jurisdiction for Different Offense.--The act of the obligee in a bail bond or recognizance, namely the state, which prevents the appearance of the defendant in discharge of the conditions thereof, exonerates the sureties. There is an implied obligation upon the part of the commonwealth that the bail shall not be hindered in performance of the obligation by any authority within the limits of the state, whether state 13 or federal.14 Therefore the better rule would seem to be that when one is bound as bail for another for his appearance in a particular court at a particular time, and the state, before the time stipulated for the appearance, arrests the principal and detains him at another place, thus preventing him from appearing at the time and place stipulated, the bail will be exonerated during such detention, for by the act of the obligee in the obligation, the state, for whose protection the bond or recognizance was given, the performance of the conditions of the bond has been made impossible. By confining the principal he has been placed beyond the power of the sureties, and moreover there is no further use for the bail, as the state has the prisoner in its own custody and may produce him for trial.15 The contrary view has been taken by some courts upon the ground that it is within the power of sureties to compel the principal to be produced in court.16 It has also been held that in order that a second arrest and imprisonment in another county shall operate as a discharge of a surety on a bail bond it is incumbent upon the surety to communicate the fact to the court at the time when the principal is bound to appear, and to take all possible legal steps for securing his presence.17 Even if a subsequent arrest may operate to exonerate the suretics, the arrest of the principal for a second offense, after the bond has been forfeited for a failure to appear, does not have that effect.18 The arrest and surrender of the principal to the authorities of another jurisdiction, upon requisition, will discharge the bail from liability to procure his appearance in accordance with the conditions of their bond, as the in 12. Lewis v. Brackenridge, 1 Blackf. (Ind.) 220, 12 Am. Dec. 228. 13. 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. 14. Com. v. Overby, 80 Ky. 208, 44 Am. Rep. 471. 15. West v. Colquitt, 71 Ga. 559, 51 Am. Rep. 277; State v. Funk, 20 N. D. 145, 127 N. W. 722, Ann. Cas. 1912C 747 and note, 30 L.R.A. (N.S.) 211; Cooper v. State, 5 Tex. App. 215, 32 23 L.R.A. (N.S.) 139 note. 16. State v. Merrihew, 47 Ia. 112, 29 Am. Rep. 464. 23 L.R.A.(N.S.) 140 note; Ann. Cas. 1912C 746 note. 17. State v. Merrihew, 47 Ia. 112, 29 Am. Rep. 464. Ann. Cas. 1912C 746 note. 18. Ann. Cas. 1912C 746 note. ability of the surety to produce the principal is caused by the action of the state itself.19 62. Subsequent Arrest Followed by Escape or Release on Bail.In order to exonerate the bail for failure to procure the appearance of their principal it is necessary that he be actually in the custody of the state, and therefore an arrest for a second offense will not discharge. the sureties on a bond given for the first offense where the principal has escaped from the second arrest. The fact that he was taken into custody for a short time on a different charge does not of itself operate to discharge the bail when it is shown that he is at large when the forfeiture is taken. Nor does the mere arrest, the detention being discontinued by bail, in the second case annul the first bond. When the bail agree to produce their principal at court, they do so in full view of the fact that the principal may commit another offense, and may give bail for that, under another arrest; and that because they have agreed to produce his body to answer for the first offense, the state does not bargain with them not to arrest him if he offends again, and then that her highest law guarantees to him the right to give other bail to answer that. The state does an act perfectly lawful, when she so arrests him for a second offense. If she should keep him in her own custody, of course the bail in the first case would be discharged; because she could produce him, but they could not. But when, under a right the man exercised, other people had enough faith in him to bail him for another offense to be answerable to court, then two sets of sureties contract with the state to produce him for two offenses. If they conflict, and he is tried and imprisoned by the state, then the sureties are discharged, because the state has the principal in her own custody, and can produce him and try him on the other offense if she wishes to do so. And whichever case is tried first,. if it results in imprisonment, the sureties for the other are discharged; but so long as the state has not the man in her custody, the bail in each case is bound.20 63. Subsequent Arrest for Same Offense.-The subsequent arrest of a principal for the same offense as that for which bail was given will operate to discharge the sureties on the bond. Therefore when after indictment found a bench warrant is issued for the arrest of the accused who is at large on bail, and he is thereunder taken into custody and afterwards escapes, the sureties cannot be held, for by the 19. Adler v. State, 35 Ark. 517, 37 Am. Rep. 48 and note; Cooper v. State, 5 Tex. App. 215, 32 Am. Rep. 571. 99 Am. Dec. 220 note; 23 L.R.A. (N.S.) 139 note; Ann. Cas. 1912C 748 note. 20. West v. Colquitt, 71 Ga. 559, 51 Am. Rep. 277. 99 Am. Dec. 220 note; Ann. Cas. 1912C 747 note. 1. Com. v. Skaggs, 152 Ky. 268, 153 S. W. 422, 44 L.R.A.(N.S.) 1064 and note. 30 L.R.A.(N.S.) 211 note. act of the state the defendant was taken out of their control. Nor could the defendant have secured his release on the bond originally entered, for upon his arrest the bail bond ceased to have any binding force. If, however, the arrest is illegal it will not have the effect of discharging the sureties. And where the principal is arrested by the federal government upon the same charge to answer which the sureties are bound to produce him in the state court, and he is removed upon such arrest and imprisoned in another state, this constitutes a valid excuse for failure upon the part of the sureties to procure the appearance of their principal. If the principal has been tried and convicted in a federal court, a further reason for releasing the sureties appears in the fact that even if he had been produced in the state court to answer the indictment against him, he could not have been tried and convicted, because he had already been tried and convicted for the same offense in the federal court." 64. Subsequent Arrest and Detention in Another Jurisdiction for Different Offense.-An arrest in another jurisdiction for a second and different offense will not operate to discharge the sureties on a bail bond, for, as has been pointed out, the performance of the contract has not been prevented by the act of the state which is the obligee in the recognizance, and in reference to whose laws the contract was entered into, and aiso, what is probably a more cogent reason, the removal of the principal to another jurisdiction and his falling into the custody of the law is the result of his own voluntary act. A distinction is to be observed between the act of the law proper and the act of the obligor which exposes him to the action and control of the law. Furthermore the sureties are expected to take the principal into their custody, and if they permit him to go into another jurisdiction, the authorities of which take him into custody, they are at fault for not keeping him within their control. A further practical reason lies in the fact that if the rule were otherwise a person accused of a serious offense in one state and released under heavy bail could secure the release of his bail by committing a minor offense in another state for which he would be arrested and detained. On the same prin 2. Smith v. Kitchens, 51 Ga. 158, 21 Am. Rep. 232; Com. v. Skaggs, 152 Ky. 268, 153 S. W. 422, 44 L.R.A. (N.S.) 1064 and note. 3. Er p. Mosby, 31 Tex. 566, 98 Am. Dec. 547. 4. Smith v. Kitchens, 51 Ga. 158, 21 Am. Rep. 232. 44 L.R.A. (N.S.) 1067 note. This has been denied, however. 44 L.R.A.(N.S.) 1068 note. 5. Belding v. State, 25 Ark. 315, 99 Am. Dec. 214, 4 Am. Rep. 26; Com. v. Overby, 80 Ky. 208, 44 Am. Rep. 471. 6. Com. v. Overby, 80 Ky. 208, 44 Am. Rep. 471. 7. Taylor v. Taintor, 16 Wall. 366, 21 U. S. (L. ed.) 287, affirming 36 Conn. 242, 4 Am. Rep. 58; Adler v. State, 35 Ark. 517, 37 Am. Rep. 48 and note; Yarbrough v. Com., 89 Ky. 151, 12 S. W. 143, 25 A. S. R. 524 and note; State v. Horn, 70 Mo. 466, 35 Am. Rep. 437. 23 L.R.A. (N.S.) 140 note; Ann. Cas. 1912C 748 note. 8 ciple where bail is entered in one state and the principal being released thereon goes into another, and by this latter state is delivered upon requisition to a third state, the sureties cannot set up this delivery and subsequent imprisonment as an excuse for failure to comply with the conditions of their undertaking. However, it has been held that where the principal in a recognizance fails to appear at the time required, in consequence of being bound to appear at the same time in a court in another state, this would afford a good cause for setting aside a forfeiture of his recognizance, if he, in good faith, surrenders himself as soon as he can after being released from attendance in the other court and in a reasonable time after the forfeiture. 65. Subsequent Arrest and Detention by Military Order.-The imprisonment of a citizen by legitimate orders of a military commander has the same force and effect as if he were confined upon a proper warrant from a civil tribunal.10 And therefore if the principal in a bail bond is arrested and imprisoned by military or naval authorities, and the sureties are prevented thereby from procuring his appearance at the trial, they will be excused from complying with the conditions of the bond; and the enforced military or naval service of the principal will be a sufficient excuse for his nonappearance in accordance with his recognizance. Where the principal is at the time of the execution of bail enlisted in the federal army and is refused a furlough which he asks for in order to be present at his trial, the bail are exonerated. There is some difference of opinion as to whether the voluntary enlistment of a principal in the army or navy after the entry of bail, whereby it is made impossible for him to appear in accordance with the condition of the recognizance, will relieve the sureties from their obligation. It is held in some of the cases that where the principal enlists without the knowledge or consent of his sureties, their consequent inability to retake him into custody is ground either for their release or at least for a continuance where it is shown that they were reasonably diligent in their endeavor to secure the appearance of the principal. The better authorities hold, however, that voluntary enlistment, being the act of the obligor, cannot release either him or his sureties from his obligations.11 The reason for not exonerating the bail will be still stronger if the enlistment was with the advice and consent of the surety, and where this is the case it seems that the detention of the principal is not a good defense even in those jurisdictions where the decisions have treated the surties most leniently. In every case where such a defense is advanced it should be shown that proper effort has been made to secure the person of the principal from the military authorities.12 The fact 8. Taylor v. Taintor, 16 Wall. 366, 21 U. S. (L. ed.) 287 affirming 36 Conn. 242, 4 Am. Rep. 58. 9. 23 L.R.A. (N.S.) 138 note. 10. Belding v. State, 25 Ark. 315, 90 Am. Dec. 214, 4 Am. Rep. 26. 11. 37 Am. Rep. 52 note. that the principal has been captured by foreign soldiers and detained in another country may be advanced as a defense by his sureties, and, if the taking is not connived at by the principal, will relieve against a forfeiture for his failure to appear at the time specified.13 66. Mistake as to Time or Place for Appearance.- A mistake as to the time or place at which the accused is to appear, if manifestly excusable, may constitute a good defense to an action upon the bond; for example, sureties on the bond of one who, being under indictment for crime, did not appear for trial, may excuse the failure to appear at the term of court at which the case was called, by showing that they relied on a printed court calendar which did not correctly show the terms of that court, and that they were ignorant of the change from the calendar as printed. And a final judgment against the sureties may be set aside where it appears that the principal or counsel for the principal were honestly mistaken as to the time when the trial was to be had, or believed that the venue had been changed, and the principal appeared at the court to which he understood the change had been made and immediately hastened to the proper court on discovery of his mistake. But where the excuse advanced is that the district attorney had verbally agreed with counsel for the defendant to postpone the trial of the case or give him notice, this has been deemed to be no excuse for a failure to appear, as the agreement should have been in writing.14 67. Death or Sickness of Principal.-An act of God rendering the performance of the condition in a recognizance or bond impossible, always discharges the party bound from performing the obligation. Thus where the principal in a bail bond dies before judgment is rendered against the surety, so as to put it out of the power of the latter to surrender him in execution, the bail is discharged.15 And this is true although the bond may have been forfeited before death, if the death occurs before judgment on the bond, and a judgment entered after the death of the principal may be vacated. But the bail is not entitled as of right to claim exoneration by reason of the death of the principal after forfeiture, and it seems that if a long period of time has elapsed after the forfeiture of the bond before the death of the principal occurs, as, for example, two years, the death does not constitute a defense to an action on the bond. 16. Upon the same rea Am. Dec. 214 and note, 4 Am. Rep. Ann. Cas. 1912C 749 note. 99 Am. Dec. 214, 4 Am. Rep. 26. 14. Hargis v. Begley, 129 Ky. 477, 112 S. W. 602, 23 L.R.A. (N.S.) 136 and note. 15. Adler v. State, 35 Ark. 517, 37 Am. Rep. 48; People v. Manning, 8 Cow. (N. Y.) 297, 18 Am. Dec. 451. 99 Am. Dec. 216 note. 16. 99 Am. Dec. 216, 217 note. |