Opinion
11-27-1815
Higginbotham v. Browns. [*]
Williams for the appellant. Wickham for the appellees.
Argued February 3, 1815; February 6, 1815; February 7, 1815 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
A Scire facias was issued from the clerk's office of Albemarle County Court, in favour of the surviving partners of M'Credie, Higginbotham and Company, against Bezaleel Brown and Benajah Brown, jr. special bail for William T. Henderson and Matthew Henderson; to recover of the said bail the amount of a judgment obtained by the said company against their principals. The sheriff's return was " February 5th, 1808, executed on Bezaleel Brown; Benajah Brown no inhabitant." A common order was thereupon entered against the defendant Bazaleel; and another scire facias awarded against Benajah Brown; but whether it was issued, or not, does not appear. At May term, 1808, the office judgment was set aside on the motion of Bazaleel Brown; and he pleaded a special plea, " that the plaintiffs ought not to have execution against him for the debt in the scire facias mentioned, because, he saith, the same Matthew Henderson mentioned in the scire facias was by him delivered up to the sheriff of Albemarle County at the suit of the plaintiffs; and that they, the plaintiffs, did then and there release and discharge the said Matthew Henderson from the custody of the sheriff; and this he is ready to verify; " and " the plaintiff replied generally." On the 8th of August, 1810, " the defendant Bazaleel Brown, by leave of the court, withdrew his former plea; and thereupon the following special plea was filed; to wit, The defendants come and defend, & c. and say, that the plaintiffs ought not to have or maintain their action aforesaid, nor ought they to be charged as bail aforesaid, because they say they entered into the recognizance set forth in the scire facias, as bail for a certain William T. Henderson and Matthew Henderson, joint obligors in a bond to M'Credie, Higginbotham, & Co., upon which the judgment was recovered, upon which it is attempted to charge the defendants as bail; that Matthew Henderson, one of the obligors as aforesaid, was delivered up by his bail, in due form of law, after judgment in the case aforesaid was rendered; and was in actual custody of the sheriff; and, whilst the said Matthew was in actual custody as aforesaid, the said plaintiffs, by their attorney, duly authorized for that purpose, discharged the said Matthew from the custody of the sheriff, by a written order, the substance of which is as follows: " As agent for M'Credie, Higginbotham, & Company, and by direction of David Higginbotham, one of the firm, I do consent, that Matthew Henderson, who has been delivered up by his special bail to the sheriff at their suit, may be discharged from custody. D. Carr, 15th July, 1807. And the defendants aver, that the said suit, in which the said Matthew was delivered up by his bail, is the same suit in which the judgment was rendered, with which they are now attempted to be charged as bail, and no other or different; and this they are ready to verify, & c."
Note. It was said, in the course of the argument, by Williams, that this plea was defective in not stating that the surrender was before the return of a ca. sa. non est inventus: but, in Com. Dig. Title, Bail (R. 3,) the doctrine is, that " the defendant may plead a surrender, without saying that it was before a capias against the principal returned; for, if it was not, it shall be shewn on the other side." --Note in Original Edition.
To this plea the plaintiff demurred generally; heading his demurrer with the words " Higginbotham & Co. v. Brown's scire facias," and describing the plea as " the said plea of the said defendants; " " to which demurrer the defendants, by their counsel, filed the following joinder, to wit: And the said defendant, for that he hath sufficient matter in law to bar the plaintiffs from having their said action against him, & c. prays judgment, & c."
On argument, the court sustained the demurrer, and rendered judgment, " that the plaintiffs have execution against the said defendants; " " from which judgment the defendants, by their attorney, prayed an appeal to the Superior Court of law," where it was reversed, on the ground, " that the defendants had pleaded jointly, a demurrer was filed to the plea of one of the defendants, that one defendant joined in demurrer, and the judgment was against both." The cause was therefore ordered to be remanded to the County Court for farther proceedings.
From this judgment of reversal, an appeal was taken to the court of appeals.
Judgment of the Superior Court reversed, and that of the County Court affirmed.
Williams for the appellant. The record states that " the defendants, by their attorney, filed the joinder in demurrer; and, although" it says afterwards, " the defendant," this must be considered a clerical mistake, as in Mackey v. Fuqua, 3 Call, 19.
The only question in the cause is, whether, upon the pleadings, the law is for the appellant?
The undertaking in the recognizance was for delivering up both the Hendersons. The plea is, only, that one was surrendered. This is bad on general demurrer. Where a plea professes to answer the whole declaration, and exhibits a bar to part only, it is bad. The law requires a complete discharge of the recognizance, which could not be accomplished by surrendering only one of the defendants. And the plaintiff's suffering the defendant, who was in custody, to be discharged by the sheriff, did not discharge the judgment.
Co. Litt 303 a.; 1 Saund. 28; Earl of Manchester v. Vail, note (2) and the authorities there cited.
Note. The recognizance in this case was not inserted in the transcript of the record. It was described in the scire facias, as follows: " And whereas, at a court continued and held for the county of Albemarle, the 4th day of March 1807, Bezaleel Brown and Benajah Brown, jun. personally came, and became pledge and bail for the said William T. Henderson and Matthew Henderson, that, if it should happen that the said William T. Henderson and Matthew Henderson should be convicted, at the suit of the said M'Credie, Higginbotham & Company, in the action aforesaid, then the said Bezaleel Brown and Benajah Brown, jun. granted, that, as well the debt aforesaid, as all such costs and charges as should be adjudged to the said M'Credie, Higginbotham & Company in that behalf, should be made of their goods and chattels, and levied to the use of the said M'Credie, Higginbotham & Company, if it should happen that the said William T. Henderson and Matthew Henderson should not pay the debt aforesaid, and those costs and charges aforesaid, to the said M'Credie, Higginbotham & Company, or should not render themselves to prison, in execution thereof." --Note in Original Edition.
Astry v. Ballard, 2 Mod. 312.
Wickham for the appellees. There was unquestionably a plea put in by both the defendants jointly. The demurrer speaks of a plea by the defendant, in the singular number. The joinder in demurrer is by one defendant only. The words " he" and " him," and the whole context, prove this. These pleadings were acts of the attornies in court; not of the clerk. In Mackey v. Fuqua, it was altogether a clerical error.
2. Mr. Williams says the surrender of one defendant was no discharge of the recognizance. But we contend that the discharge of one was a discharge of both, and rendered the surrender of the other by the bail unnecessary. In this case, one of the Hendersons was surrendered by the bail, and not charged in execution: but, if he had been charged in execution, this subsequent discharge would have operated as a release to the other. It may be said, that, as he was not charged in execution, his discharge by the plaintiff's attorney will not have that effect. But by virtue of the act of assembly, the bail was discharged immediately upon the surrender. And I contend that a discharge of the defendant from custody, after judgment, is a release of all right to sue out any execution against him. At all events, it is a release of any right to take his body. The act of assembly should be strictly construed in favour of liberty. It authorizes the plaintiff, where he has been merely passive, in not charging the defendant in execution, within twenty days, to sue out any legal execution afterwards; but it does not apply to a case where the plaintiff, or his attorney, has actually discharged the defendant. Both the defendants must stand on the same footing, and claim equal justice. Where the plaintiff has made his election not to hold one of them in custody, he cannot take or accept the body of the other; neither can he, in any case, separate the fate of the defendants by his own act. The discharge of one of them, therefore, operates in favour of the bail.
Clark v. Clement and English, 6 Term Rep. 525; Viner, 339, pl. 7; Bassett v. Salter, 2 Mod. 136; Amminett v. Harris, 1 H. and M. 488.
Rev. Code, 1st vol. ch. 66, sect. 31, p. 79.
Wright, administrator, v. Kerswill, Barnes's notes, p. 376.
3. The scire facias in this case is obviously illegal and void, being in behalf of William Brown and David Higginbotham, surviving partners of M'Credie, Higginbotham & Company, without mentioning the names of the partners of whom the company consisted. This is an action upon a recognizance. If a recognizance was given to " the executors of A. B." without setting forth their names, it would be void; and that now in question is equally defective.
Scott & Co. v. Dunlop, Pollock & Co., 2 Munf. 349.
The court will go back to the first error in the proceeding; and, since the scire facias is defective, it must be quashed. It is also faulty in not stating who were the partners at the time of the judgment, and who had died. It states the consequence or inference from facts, instead of the facts themselves, as it ought to have done, according to the forms of pleading, which are good evidence of the law.
Lilly's Entries, 398, Peters v. Heather; Ibid. 637, 638; 1 Stra. 631, Morefoot v. Chivers.
4. The recognizance does not appear to have followed the law. It is described in the scire facias as binding the goods and chattels of the bail, without saying any thing of their lands and tenements, which ought also to have been bound. Such is the form, expressly, in England; and the effect in this country is the same, where the form prescribed by the act of assembly is pursued. In both the forms, too, there is a stipulation, that, if the defendant do not surrender his body in execution, the bail will do it for him: and there is no such stipulation here. 1
Rev. Code, 1st vol. p. 113.
3 Bl. Com. App x. xx.
Wirt in reply. The first objection is, that the issue made up on the demurrer is by one defendant only, and the judgment against both. But, I answer, the plea demurred to is the joint plea of both defendants; both relying on the same matter of defence. The caption of the demurrer is as to both, although the body of it uses the singular number. The plea being one, the demurrer, going to the matter of the plea, is indivisible in its application to the defendants: --it cannot dispose of the defence as to one, without disposing of it as to the other. If the defendants had severed in their pleas, there would have been some ground for the opinion of the court below, because it would then have been uncertain which plea was adjudged insufficient: but the plea being one and the same, and the matter of defence one and identical, the demurrer connot try the sufficiency of that defence as to one, without trying it also as to the other. For, if the same matter be adjudged insufficient to avail one defendant it must be equally insufficint to avail the other. The judgment upon the demurrer therefore, must of necessity affect both defendants equally, and rightfully included them.
The defendants, too, have waived this informality by their joinder. The entry is, that the " defendants," by their counsel, filed the following joinder. It is true, the joinder then proceeds in the singular number; but this is the act of the defendants themselves. The joinder being filed by them both, is effectual as to both.
Barnet v. Watson, 1 Wash. (VA) 372; Murdoch v. Herndon, 4 Hen. & M. 200.
II. The second position of Mr. Wickham is, that the discharge of the one defendant, who was surrendered by the bail, was a discharge of the whole judgment, and, of course, of the bail.
The authorities cited under this head establish the principle, that, on a joint judgment against two, if the plaintiff take one in execution and discharge him, it is a satisfaction of the judgment. And, if this was a discharge from execution, the cases apply, and the cause is decided: --if not, they are inapplicable, and do not affect the cause.
In this case, there was no discharge from execution, unless the defendant was in execution by the mere render of his bail; for nothing else was done to put him so. But the render of a defendant by his bail does not put him in execution; 1st, because, after the render, our act of assembly requires him to be charged in execution by the plaintiff, before he can be considered as being in execution, which would be idle if the mere render had that effect: --2dly, because, if the defendant were in execution by the mere render, neither the court nor sheriff would have the power to discharge him: for, once in execution at the plaintiff's suit, it will be admitted as clear law, that only the plaintiff or the act of God could discharge him: --but the act of assembly gives both the court and sheriff, after twenty days, the power of discharging him from custody, without the authority of the plaintiff, and merely on the ground of his not being charged in execution.
Again; if the surrender by the bail has the effect of putting the defendant in execution, it is in the power of the bail to abridge the plaintiff's right of electing what execution he will take: --for, the body once taken in execution, the plaintiff has gotten his whole satisfaction, and cannot resort either to the lands or goods of the defendant. Now, there is certainly nothing in the nature of the contract between the plaintiff and the bail, which gives the latter the right of dictating the satisfaction which the former shall take. If so, bail would be a mischief, instead of a benefit.
3 Bl. Com. 414-15.
Besides; --if the defendant was in execution, a discharge therefrom, with the knowledge and tacit permission of the plaintiff, (without any actual or written discharge,) would amount to a satisfaction of the debt, and could never afterwards be touched either in his person or property. But a discharge on a surrender will not have the effect of exempting even his body from execution: --" for it is, (says Hobart,) but a forbearing for the time to receive him upon his own offer; and not a renouncing or releasing of his own act of execution, when he shall see cause." It is said, indeed, in Barnes 376, that if a defendant, after judgment, be superseded for want of being charged in execution, his person cannot be afterwards taken in execution. But this was a mere obiter dictum, and is confronted by Comyns and Hobart, if attempted to be established as a general principle. It is not said, that the discharge of one defendant on supersedeas, for want of being charged, will exempt a co-defendant; --and, conclusively, the authority admits, that the goods and lands of such defendant, so discharged, are still liable, which they would not be if he had been in execution and discharged therefrom. But, on this subject, our act of assembly removes all difficulty, by expressly declaring, that where, upon the surrender, the defendant is discharged from custody with the knowledge and permission of the plaintiff, in consequence of his failing to charge him in execution, he shall still be liable to any execution which the plaintiff may elect to sue out.
Cro. Car. 75.
1 Com. Dig. 699. Bail (Q. 4.) Welby v. Canning, Hobart, 210.
For another reason, the defendant is not in execution upon the surrender by the bail. It is, that execution is the act of the plaintiff, and cannot be without his authority. The plaintiff has the right to elect what satisfaction he will have for his judgment; and, having made his election, he is bound by it. But the act of the bail is not the act of the plaintiff; --and it would be strange to bind the plaintiff by an election, made by another, without his privity and consent.
The very reason of the principle, that the discharge of one defendant from execution is a discharge of all the rest, furnishes a farther argument to shew, that the mere render by the bail does not put the defendant in execution. The reason assigned by Mr. Wickham is not the true one; viz. that the law will not suffer the plaintiff to press harder on one defendant than on another. If this were true, the law would not permit the plaintiff to confine one defendant, and leave the rest at large; --which it will do. Nor is it the reason, that the taking of one defendant is a satisfaction of the debt; for, if so, the plaintiff, having taken one, could not take the rest: --but he may take them all in succession, --or he may take part, and demand the rest from the bail. The true reason is to be found in the unity of the judgment, and the unity of satisfaction to which the plaintiff is entitled; --in his being bound by the election of the satisfaction, which he has made; --and the confession of satisfaction, which the law infers from the discharge of the man whom he has himself taken and imprisoned. But this reason is wholly inapplicable to the case of a man whom he has not himself taken and imprisoned; --and, the reason of the principle not existing, the principle itself will not apply.
Astry v. Ballard, 2 Mod. 312.
3 Bl. Com. 414-15; Hobart 2; and 452. Foster v. Jackson.
The result is, that the defendant was not in execution by the mere render of the bail: he was in custody of the sheriff, but not in execution: and since he was not in execution, the consent to discharge in this case was not a discharge from execution. The act of the plaintiff's agent was therefore, in effect, a mere election not to charge in execution. This will be apparent, if we consider why the defendant is to be either charged in execution, or discharged, at once, if surrendered in court; and why he may remain twenty days in custody, if surrendered to the sheriff in pais. In the first instance, the plaintiff is in court, conusant of the surrender, and must elect at once; in the second, he is ignorant of the surrender; and the law gives him twenty days to receive notice of the fact, and make his election. But, because so much time may not in every case be necessary, the defendant may be discharged sooner, if sooner the the plaintiff determines his election. Int his case he did determine his election before the twenty days had expired, and consented to the defendant's discharge, not from execution, but from that custody of the sheriff in which the bail had placed him. In other words, he signified his refusal to charge him, in the words of the act of assembly. And, consequently, by the express provision of the act, which merely affirms the principle of the common law, as pronounced by Comyns & Hobart, the same defendant, and much more his codefendant, was left open to the plaintiff's execution. And so, the judgment was not satisfied, nor the bail released by that discharge.
III. It is contended that the scire facias is illegal and void; 1st. Because the recognizance, on which it is founded, having been to M'Credie, Higginbotham & Co., without specifying the names of the partners, was entirely void. But the recognizance is no part of this record. If the bail had a mind to take advantage of any defect in it, he should have craved oyer, and made it a part. Whether the original suit was in the name of M'Credie, Higginbotham & Company; and, if so, whether the declaration therein was defective, forms no part of the present enquiry. For the bail can take no advantage of errors in the original suit. The scire facias, as to him, is a new suit, and he cannot look farther back; even to the recognizance, unless he makes it a part of the record, by oyer. But, in this case, the bail, by pleading satisfaction in bar, have admitted the original right of the plaintiffs, founded on the recognizance, and relinquished such objections as that now in question. If, however, the recognizance had been part of the record, and given to M'Credie, Higginbotham & Co., would it have been void on that account? --Merchants gain, and give, credit in the name of their firm. In this there is no imposition, because they who deal with them know what persons constitute the firm. All bills and other contracts on the part of the firm are signed in that name; and all undertakings to them are constantly given to the firm in like manner. The principle contended for, on the other hand, goes to declare all such engagements void, because in the name of the firm. Such a principle would spread havock, far and wide, among the mercantile part of the community.
Wraight v. Kitchingham, 1 Stra. 197.
Ibid.
2dly. It is said, that the names of the partners at the time of the judgment, and the deaths of those who died, should have been specially stated in the sci. fa. But this objection is not founded in reason, or in law. In reason, saying that the plaintiffs are the surviving partners, is saying that the rest are dead. In law, a declaration is sufficient if it give the names of the surviving partners, and allege them to be so, without stating the deaths of the others; and a fortiori, where the plea admits the plaintiffs to be the surviving partners; as in this case.
Murdock v. Herndon's Exrs. 4 Hen. & M. 200.
IV. The recognizance is alleged to be defective in not following the form prescribed by law. To this objection, as to the former, the answer is conclusive; that the recognizance is no part of this record. It was not necessary to set it forth in haec verba; but only sufficiently to apprize the bail correctly of the case; and that this has been done is admitted by the plea. The nature of the undertaking of the bail is fixed by law, and not by the form of the recognizance: for the form prescribed in the Rev. Code, 1st vol. 113, does not, in terms, bind his goods and chattels, lands and tenements, but leaves that to the principles settled by law.
Wickham. It is unnecessary to crave oyer where the recognizance is truly set forth in the scire facias, or to plead that which appears by the plaintiff's own shewing. The defects in the recognizance in this case appear on the face of the scire facias.
Leftwich v. Berkeley, 1 Hen. & M. 61.
Williams. If a recognizance be good in substance, it is sufficient. The case of Read v. Charnley, 2 Ld. Raym. 1224, proves, that words to the same purport with those in the customary form will have the same effect.
OPINION
Judge Brooke
The first objection to the judgment of the County Court, in this case, arises out of the pleadings. The insertion of the word " defendant," instead of " defendants," in the demurrer, is supposed to restrict it to the plea of one defendant only. The plea is the joint plea of both defendants expressly, and the joinder in demurrer is by both defendants also. The court is of opinion, that the inference drawn from the insertion of the word defendant, instead of defendants, in the demurrer, (if not a mere clerical mistake,) is countervailed by the plea and joinder in demurrer.
The validity of the plea upon demurrer is next to be considered. It alleges, in substance, in bar of the scire facias, that Matthew Henderson, one of the obligors, was delivered up by his bail in due form of law, after the judgment was rendered, and, while in the actual custody of the sheriff, was, by the plaintiff's attorney, duly authorized for that purpose, discharged from custody by a written order, and recites the substance of that order.
The court is of opinion, that the surrender of one only of the defendants was not a full performance of the undertaking of the bail, and no bar to the scire facias. It is not analogous (as was argued) to the case of the discharge of one of two defendants in execution. In the latter case, the discharge of one defendant is the discharge of both, because the execution, being joint, is ineffectual as to one only. Nor is such surrender analogous to a discharge under a supersedeas in England, the effect of which there, is to deprive the plaintiff of his right to sue out a ca. sa., and operates as a penalty on him for permitting the defendant to remain in custody longer than two terms without charging him in execution. The surrender by the bail, both before and after judgment, produces no such consequence under our act: the defendant is still subject to a ca. sa., and, of consequence, the surrender of one defendant is not as effectual as the surrender of both in this case.
On these grounds, the court is of opinion, that the judgment of the County Court, sustaining the demurrer, was correct. The judgment of the Superior Court is therefore reversed, and that of the County Court affirmed.
BAIL AND RECOGNIZANCE.
I, Bail in Civil Cases.
A. Prior to July 1st, 1850.
1. Appearance Bail and Special Bail Compared.
2. When Bail Not Demandable of Right.
3. When Demandable of Right.
4. Endorsement of Attorney That Bail Is Required.
5. Bail Required for Good Cause Shown.
6. General Principles Touching Bail.
a. Need of Endorsement of True Species of Action.
b. Requiring and Receiving Bail a Judicial Act.
c. Bail Bond Should Be Made a Part of Record.
d. Judgment against Sheriff for Apparent Failure to Return Appearance Bail.
7. Execution and Sufficiency of Bail Bond.
a. Penalty.
b. Condition of Bail Bond.
c. Signature.
d. Variance from Writ.
e. Obligee.
f. Force of Sheriff's Return.
8. Waiver of Objection to Bail's Sufficiency.
9. Discharge of Bail.
a. Of Appearance Bail.
(1) By Appearance of Defendant.
(2) When Surrender Is Too Late.
(3) In Detinue.
10. Breach of Bail Bond.
11. Fixing Bail's Liability.
a. Steps Necessary.
b. When Defendant Dies.
c. Liability Limited by Penalty.
12. Equitable Relief to Bail.
a. Law Governing as to Bail.
b. Action Defended by Bail.
c. Procedure for Discharge of Bail.
13. Pleading and Practice.
14. Special Bail to Replevy Attached Effects. See note on " Attachments," XII.
15. Prison Bounds Bonds.
a. By Whom Given.
b. Operation and Effect.
c. Breach.
d. Procedure on Breach.
e. Measure of Damages.
B. Since July 1st, 1850.
1. In General.
2. Defendant Arrested by His Bail Is in Custody.
3. Breach of Bail Bond.
II. Bail in Criminal Cases.
A. When Bail Should Be Granted.
1. Before Conviction.
a. Jurisdiction to Admit to Bail.
(1) By Justice.
(2) By General Court.
(3) By Court of Appeals.
b. Bail in Murder Case.
c. What Evidence to Be Considered.
d. On Acquittal of One of Several Similar Indictments.
e. Illness as Ground for Bail.
2. After Conviction.
B. Form and Sufficiency of Recognizance.
1. What Recognizance Should Show.
2. Penalty.
3. Obligee--Description.
4. Condition.
a. Place of Appearance.
b. To Answer Offense Charged.
5. Recognizance for Infant.
C. Discharge or Exoneration of Bail.
1. Power of Courts over Recognizances.
2. Impossibility of Performance.
3. Duress as Ground for Exonerating Bail.
4. Immateriality of Accused's Guilt.
5. Evidence.
6. Discharge by Surrender of Principal.
D. Discharge of Accused from Bail's Custody.
E. Breach of Recognizance.
Cross References to Monographic Notes.
Assignments, appended to Ragsdale v. Hagy, 9 Gratt. 409.
Attachments, appended to Lancaster v. Wilson, 27 Gratt. 624.
Executions, appended to Paine v. Tutwiler, 27 Gratt. 440.
False Imprisonment, appended to Jones v. Com., 1 Rob. 748.
Habeas Corpus, appended to Ex parte Pool, 2 Va. Cas. 276.
Injunctions, appended to Claytor v. Anthony, 15 Gratt. 518.
Scire Facias.
Sheriffs and Constables, appended to Goode v. Galt, Gilm. 152.Trespass, appended to Quarles v. Lacy, 4 Munf. 251.
I. BAIL IN CIVIL CASES.
A. PRIOR TO JULY 1ST, 1850. --Previous to the revisal of 1849, the writ of capias ad respondendum was the usual process in all kinds of personal actions. Though nominally a process of arrest, it was really so only where the plaintiff had a right to demand bail, either as of course--as in debt on a note in writing for the payment of money, and in the actions of covenant and detinue--or for special cause shown by affidavit, when an order would be entered requiring bail. Vol. IV., Minor's Inst. (3d Ed.) pp. 632, 654.
1. Appearance Bail and Special Bail Compared, --It will be noted that appearance bail was also known as common bail, and special bail was the same as bail to the action in Virginia. Keerle v. Norris, 2 Va. Cas. 217; Gilliam v. Allen, 4 Rand. 498.
Definition of Appearance Bail.--The condition of the appearance bail bond is, that the defendant do appear to answer the plaintiff of his plea. He must appear according to the exigency of the writ, and this appearance is effected by putting in, and justifying, bail to the action. The condition, then, of the bail, bond is complied with by putting in bail to the action, if done in due time. Keerle v. Norris, 2 Va. Cas. 217.
And the mere entry of special bail, though the defendant immediately confess judgment, discharges the common bail; and that, whether the common bail enter himself special bail, or some other person be entered. Gilliam v. Allen (1826), 4 Rand. 498; Bartle v. Coleman, 6 Wheat. 475, opinion of Ch. J. Marshall.
Definition of Special Bail.--Bail to the action, is what is known to the statutes of Virginia by the term special bail. His undertaking is different from that of the appearance bail; it is, in actions of debt, etc., where bail is required, that if the defendant be cast in the suit, he will pay and satisfy the condemnation of the court or render his body in execution, or that the special bail will do it for him. If this kind of bail be put in, in due time, the appearance bail is discharged. Keerle v. Norris, 2 Va. Cas. 217; Cloud v. Catlett (1833), 4 Leigh 462.
Same in Action of Detinue.--In actions of detinue, the statute directs that the recognizance shall be so changed, as to subject the bail to the restitution of the thing, or the alternative value, as the court may adjudge. * * * The bail, in detinue, undertakes that the defendant shall restore the specific thing, or pay the condemnation of the court, or render his body to prison in execution for the same, or that he will do it for him. Cloud v. Catlett, 4 Leigh 462 at 467. See post, " Condition of Bail Bond," I, A, 7, b, and " Fixing Bail's Liability," I, A, 11.
Special Bail Necessary When Appearance Bail Required.--In Bradley v. Welch, 1 Munf. 284, the lower court held that where appearance bail was required, the defendant could not appear at rules without first putting in special bail. Special bail was given and the case appealed by plaintiff on another point, and the higher court ignored this holding of the lower court. As to waiver of right to special bail, see post, " When Demandable of Right," I, A, 3.
2. When Bail Not Demandable of Right.
Debt against Endorsers.--In a joint action of debt brought against drawer and endorsers of negotiable note, the plaintiff cannot require bail of the endorsers as a matter of right, but must obtain bail from a judge or justice on proper affidavit, etc., and a proper showing of cause. Hatcher v. Lewis, 4 Rand. 152.
A negotiable note is not, as to the endorser, a note for the payment of money within the meaning of the act of 1804. Metcalfe v. Battaile, Gilm. 191.
Waiver of Right.--And even when the plaintiff may of right demand bail, if he does not require it by endorsement according to the statute (1 Rev. Code, 499), the defendant has a right to appear without giving special bail, unless required by the court, for good cause shown. Hatcher v. Lewis, 4 Rand. 152.
Appearance Bail--Debt on Bond with Collateral Condition.--Appearance bail is not required by law in actions of debt on bonds with collateral conditions, and not for the payment of tobacco or money only: Ruffin v. Call (1796), 2 Wash. (VA) 181; Nadenbush v. Lane (1826), 4 Rand. 413.
Such a bond is not one for the payment of money. Henderson v. Hepburn, 2 Call 232.
And in such cases it is error to enter a judgment by default against the sheriff for not returning appearance bail. Ruffin v. Call, 2 Wash. (VA) 181.
Trover.--Trover was one of the actions in which, by the act of 1777, appearance bail was not required. Williams v. Campbell, 1 Wash. (VA) 153.
For the Penalty of a Statute.--Under the act of assembly (1787, cap. 67), which was the law applicable to such action, both by the commonwealth and by the United States, no bail (appearance) was requirable in an action of debt by the latter for the penalty of a statute. United States v. Mundel, 6 Call 245.
Where there were two writs of capias ad respondendum, upon only one of which bail was requirable, and the marshal demanded bail upon both, the demand was unauthorized and the defendant justifiable in refusing it. United States v. Mundel, 6 Call 245.
Appearance without Bail, to Plead to the Jurisdiction.--In an attachment proceeding against one as an absconding debtor under Virginia act of 1792 (p. 116, § § 6-8), defendant was allowed to appear by attorney without bail and without discharging the attached effects and to plead to the jurisdiction. Locke v. Cannon, Fed. Cas. No. 8440, 2 Cranch C.C. 186.
3. When Demandable of Right. --Bail was requirable as of right in an action of debt by the United States for the unpaid duty on a still. United States v. Mundel, 6 Call 245.
And, where appearance bail was required, special bail must also have been given. See ante, " Appearance Bail and Special Bail Compared."
Chancery Attachment Bail.--Under Va. Act, 1792, ch. 78, defendant might not appear on a chancery attachment without giving bail. Mayor v. Cooke, Fed. Cas. No. 9358, 1 Cranch C.C. 160.
But the Right May Be Waived.--Where a defendant is permitted to appear and plead without giving special bail, and the plaintiff takes issue on the plea and joins in the demurrer without making any objection, the right to make such objection is waived by the plaintiff, and the appearance bail is discharged. Culpeper, etc., Soc. v. Digges, 6 Rand. 165; Grays v. Hines, 4 Munf. 437.
4. Endorsement of Attorney That Bail Is Required. --See ante, " When Bail Not Demandable of Right."
Debt on Judgment of Another State.--The requirement of special bail by endorsement of plaintiff's attorney in an action of debt on a judgment rendered in another state, is not authorized by the Virginia statute of 1792, p. 78. Wray v. Riley, Fed. Cas. No. 18,060, 1 Cranch C.C. 361.
Effect of Unauthorized Endorsement.--The endorsement of the true species of action on the writ being required by law in order that the sheriff may see whether bail is to be demanded or not, he must be the judge himself, and the endorsement by the attorney for the United States that appearance bail is required would not justify the United States marshal in requiring bail, when not authorized by the nature of the action. United States v. Mundel, 6 Call 245. Such an endorsement, even by the court itself, unless it had a discretion, being entirely extrajudicial, would not justify the marshal. Wray v. Riley, Fed. Cas. No. 18,060, 1 Cranch C.C. 361.
And where the defendant refused to give the bail demanded by the marshal, which he was not authorized to demand, as above stated, and resisted the marshal, who meant to imprison him for want of bail, the resistance was lawful, and an indictment therefor not sustainable. United States v. Mundel, 6 Call 245.
5. Bail Required for Good Cause Shown.
Rule for Special Bail during Progress of Trial--Must Show Good Cause.--When an action has been brought, of such nature that the plaintiff could not of right demand bail, and there has been no direction by a judge or justice for bail to be taken, the court may notwithstanding, under the act in 1 Rev. Code, ch 128, § 50, rule the defendant to give special bail. But before this rule is made, good cause must be shown; and this can only be done by affidavit, verifying the justice of the plaintiff's action, and showing probable cause to apprehend that the defendant will depart from the jurisdiction of the court, and the burden of proof is on plaintiff. Hawthorn v. Hunter (1836), 8 Leigh 411, citing Hatcher v. Lewis, 4 Rand. 152, as settling this question.
No alteration has been made in this matter by the statute abolishing appearance bail. Supp. to Rev. Code, ch. 208, p. 266. Hawthorn v. Hunter, 8 Leigh 411.
Immaterial That Defendant Resides in Another County of the State.--Where a suit is brought in a court of competent jurisdiction, and the defendant is held to bail by a justice of the peace, on the ground that he intends to remove out of the commonwealth, supported by full and proper affidavit, it is error in the court to dismiss the suit, although it appears that the defendant is a resident of another county in the state. Ashby v. Kiger (1824), 3 Rand. 50.
Affidavit to Obtain Bail--In Writing--Filing.--It would seem that an affidavit before a justice to found an order requiring bail, ought to be in writing. Quoere, whether such affidavit ought to be filed with the process. Hawkins v. Gibson, 1 Leigh 476.
6. General Principles Touching Bail.
a. Need of Endorsement of True Species of Action. --See ante, " Endorsement of Attorney That Bail Is Required."
Trover being one of the actions in which by the act of 1777, appearance bail is not required, where the plaintiff did not endorse on the writ the true nature of the action, as required by said act under penalty of having his suit dismissed with costs, the court may, on inspection thereof, dismiss on motion made during the term next after an office judgment has been entered, but not afterwards. Williams v. Campbell (1793), 1 Wash. (VA) 153.
In such case there is no pretence for entering judgment against sheriff, either for want of bail bond returned, or for insufficient bail, he not being bound to take bail, and it not appearing that he had notice of the judgment, the court ought, before executing the writ of inquiry, to have set aside the judgment. Williams v. Campbell, 1 Wash. (VA) 153.
b. Requiring and Receiving Bail a Judicial Act. --The requiring and receiving bail is a judicial act. The clerk has no power to make the entry, unless directed by the court, or assented to by the plaintiff's counsel, even where the appearance bail is offered as special bail. In no case can he make the entry of his own mere motion. Gilliam v. Allen, 4 Rand. 498; Dunlops v. Laporte, 1 Hen. & M. 22, distinguished.
c. Bail Bond Should Be Made a Part of the Record. --Where a judgment was entered and confirmed by the clerk at rules against a defendant and another person as " security for his appearance," it was reversed because it did not appear, by the record, that the appellant was bail for the defendant, there being no bail bond, or copy thereof, which the law requires should be returned with the writ, and filed with the same in the clerk's office. Quarles v. Buford, 3 Munf. 487; Shelton v. Pollock, 1 Hen. & M. 423.
If the sheriff returns a writ executed, and the name of the appearance bail, but does not return the bail-bond, or copy thereof, to the clerk's office together with the writ, judgment ought not to be entered against the defendant and bail, but against the defendant and the sheriff. Shelton v. Pollock, 1 Hen. & M. 423.
d. Judgment against Sheriff for Apparent Failure to Return Appearance Bail, Relieved against for Surprise. --Where a sufficient bail piece was offered by the appearance bail, but rejected by the clerk under a mistake as to the law, the judgment entered against the sheriff in consequence, the clerk having entered a plea of payment for him, is relievable against in equity on the ground of surprise. The counsel having also agreed, though the court knew it not, that the bail piece might be filed. But the court said that the lower court might, and most certainly would, have corrected the mistake at any time, if it had been moved to do so, and the party was ill advised to apply for a supersedeas as he did, instead of doing so, but his negligence was excused by the agreement of counsel and the mistake which followed. Smith v. Wallace (1794), 1 Wash. (VA) 254. On nonliability of deputy for failure to take bail on mesne process, see monographic note on " Sheriffs and Constables" appended to Goode v. Galt, Gilm. 152.
7. Execution and Sufficiency of Bail Bond.
a. Penalty.
How Penalty of Bond Fixed.--In those cases where bail is demandable of right, the penalty of the bail bond is fixed by the sum claimed in the writ, being usually double that sum. Oxley v. Turner, 2 Va. Cas. 334.
In the case where bail is directed by the judge, or justice, on proper affidavit being made, it is his duty to ascertain the penalty of the bond. Oxley v. Turner, 2 Va. Cas. 334.
Penalty Blank.--A bail bond which is returned to the clerk's office, but which specifies no sum to be paid by the obligor to the obligee, is a mere nullity. Harrison v. Tiernans, 4 Rand. 177; Shelton v. Pollock, 1 Hen. & M. 423.
b. Condition of Bail Bond.
Time and Place of Appearance.--The condition of a bail bond need not designate the time and place of appearance. They sufficiently appear from the writ. Payne v. Britton, 6 Rand. 101.
What Unnecessary in Detinue.--Where, by recognizance of special bail in detinue, taken by a justice in the country, the bail is made to undertake, that in case the principal shall be cast, he shall restore the chattels sued for, or the alternative value thereof (without adding " as the court shall adjudge" ), or pay and satisfy the condemnation of the court, or render his body in execution, etc., or that the bail will do it for him, it is a good recognizance of special bail, according to the statute, 1 Rev. Code, ch. 128, § 53, and the words quoted from the statute refer to the alternative value as fixed by the court, and are not necessary. Cloud v. Catlett, 4 Leigh 462. See ante, " Appearance Bail and Special Bail Compared."
Bail Piece Mentioning Only One Defendant--Not Defective.--" It is no objection to a bail piece entered into by one defendant with the appearance bail that it does not mention the name of the other defendant on whom the writ had not been served." Smith v. Wallace, 1 Wash. (VA) 254. It would seem that " bail piece" here meant, not the certificate from the record that bail had been given, its usual meaning, but practically the equivalent of a bail bond, a paper containing the names of special bail, etc., to be filed in the record. See Wharton L. Tax.
c. Signature.
Bond Must Be Signed by Bail.--Where the name of a person is in the body of a bail bond, but the bond is not signed by him, it is error to take judgment against him. Goode v. Galt, Gilm. 152.
Name Omitted from Body of Bond--Validity Unimpaired.--A bail bond executed by the principal and the bail, though the name of the bail is not inserted in the body of the bond (there being a blank left for his name), which, in other respects, is regular, on which the plaintiff proceeds and recovers judgment against the bail as well as principal, which stands unreversed, is the bond of the bail, though his name is not inserted in the body of it. Raynolds v. Gore, 4 Leigh 276.
Name Omitted from Body of Bond--Waiver.--And even if it were a defective bond, the plaintiff having a judgment on the bond against the bail, in full force, could not maintain an action against the sheriff for returning a defective bail bond. Raynolds v. Gore, 4 Leigh 276.
d. Variance from Writ. --A bail bond which recites a writ at the suit of A. B., administrator, etc., while the writ is at the suit of A. B., executor, etc., is not an error for which a judgment against the bail and the defendant will be reversed. Payne v. Britton, 6 Rand. 101.
e. Obligee--Proper Designation of Sheriff. --A bail bond given to the sheriff of county, without naming the county, is good. Payne v. Britton, 6 Rand. 101.
f. Force of Sheriff's Return--Governs on Question of Whether a Bond Was Taken, When Inconsistent Therewith. --Where the sheriff's return on a writ in an action of covenant is " executed and committed to jail for want of bail," and also return a bond purporting to be a bail bond, there should be no judgment against the bail therein, but against the defendant only, for the return should govern where there is inconsistency. Henry v. Green, 4 Munf. 227, citing Quarles v. Buford, 3 Munf. 487.
8. Waiver of Objection to Bail's Sufficiency. --Where plaintiff in an action of debt did not except to the person offered as appearance bail, but afterwards objected to his admission as special bail, on the ground that no proof was exhibited as to his sufficiency, though not urging any specific objections to his sufficiency, the lower court overruled the objection, because (as stated by the reporter), the plaintiffs had not excepted to him as appearance bail, and therefore were bound to receive him as special bail. The opinion of the court of appeals was that the supersedeas asked by plaintiff was refused without difficulty, assigning no reasons. It would seem that it may have merely intended to hold that it was an admission of sufficiency so far as to relieve the party offering him as special bail from any further proof thereof, and to shift the burden of proof to the plaintiff to show ground of objection.
This would have been ample ground for the refusal of the supersedeas, and is the view taken of the decision by the later case of Gilliam v. Allen, 4 Rand. 498, cited infra. Dunlops v. Laporte, 1 Hen. & M. 22, cited with approval in Hatcher v. Lewis, 4 Rand. 152.
Quaere, as to whether by failing to object to the sufficiency of one as appearance bail the plaintiff is concluded from objecting to the same party's sufficiency under all circumstances when offered as special bail. Opinion expressed that he would not be so concluded. Gilliam v. Allen, 4 Rand. 498, distinguishing Dunlops v. Laporte, 1 Hen. & M. 22.
Where Two Persons Go Bail. --Where, as in this case, there were two persons taken as appearance bail, though it should be said that by failing to except, the sufficiency of these two, as special bail, is admitted, it cannot follow that the sufficiency of one of them is admitted. Gilliam v. Allen, 4 Rand. 498. See, as to waiver of recourse against sheriff, the references at end of " General Principles Touching Bail."
9. Discharge of Bail.
a. Of Appearance Bail.
(1) By Appearance of Defendant.--The condition of the appearance bail bond was, that the defendant do appear to answer the plaintiff of his plea. He must appear according to the exigency of the writ. Keerle v. Norris, Va. Cas. 219; Culpeper, etc., Soc. v. Digges, 6 Rand. 165; Grays v. Hines, 4 Munf. 437.
All that was required of the appearance bail was that the defendant should appear. Keerle v. Norris, 2 Va. Cas. 217.
Appearance by Attorney and Confession.--Where defendants appear by attorney and confess the plaintiff's action, the appearance bail is thereby discharged, and no judgment ought to be rendered against him. Fisher v. Riddell, 1 Hen. & M. 330 (note).
(2) Giving Special Bail Discharges Appearance Bail without Plea.--If after office judgment against the defendant and bail, the appearance bail, or any other person, becomes special bail, the judgment against the said appearance bail may be set aside, without the defendant's pleading to issue; and the judgment stands confirmed against the defendant, although set aside as to the bail. Keerle v. Norris (1820), 2 Va. Cas. 217; Gilliam v. Allen, 4 Rand. 498. See ante, " Bail, in Civil Cases."
Entry of Order Relieving Appearance Bail.--The clerk ought to make an express entry in the order book, that the judgment is set aside as to the bail; but an omission to do so will not charge the bail, and the entry of special bail by the appearance bail, does virtually set aside the judgment against the said appearance bail. Keerle v. Norris, 2 Va. Cas. 217 (1820).
(3) On Ground That It Was Required on Insufficient Affidavit--When Too Late.--After judgment by default, two years having elapsed since writ of inquiry, defendant appearing to have left state, it is too late to seek the discharge of the appearance bail on the ground that no sufficient affidavit had been filed to authorize its requirement. Indicated that it would be too late after the writ of inquiry. Hawkins v. Gibson, 1 Leigh 476. See post, " Pleading and Practice," for proper proceeding for discharge, and also, post, " Fixing Bail's Liability."
b. Of Special Bail.
(1) By Surrender of Principal.
Surrender of Principal to Sheriff without Return of Receipt to Clerk--Effect (Obiter).--If the special bail, before or after judgment, surrender the principal to the sheriff, his discharge is complete by the surrender, whether he return the receipt forthwith to the clerk or not; and if any injury from an omission so to return it, result to the plaintiff, his remedy is by action against the bail, the clause of the statute as to the return of the receipt being merely directory. Cooke v. Beale, 1 Wash. (VA) 313 (1794).
Quaere, Whether Exhibition of Bail Piece Is Necessary.--It seems that a special bail's surrender of his principal to the sheriff is effectual, without his exhibiting a bail piece or other written evidence of his being bail; if the surrender be made in the county, in the court of which he was accepted and entered as special bail in open court, and it appear that the fact was known to the sheriff, who nevertheless refused to accept the surrender and hold the principal in custody. The court did not decide the case on this point, but merely expressed the impression that under the actual circumstances of the case, the exhibition of a bail piece was unnecessary. Evans v. Freeland, 3 Munf. 119 (1812). See note by reporter that " it appeared in evidence that the sheriff was influenced by improper motives in refusing the surrender."
Surrender May Be Made before Return Day of 2d Sci. Fa.--The surrender of the principal made before the return day of the second sci. fa. was in good time At first, the bail was allowed to discharge himself by bringing in the body before, or upon, the return day of the first scire facias; afterwards greater liberality prevailed, and the indulgence was extended to the return day of the second writ. Bogle v. Fitzhugh, 2 Wash. (VA) 213 (1796).
And There Must Be a Proper Interval between Them.--Where two writs of sci. fa. against special bail were successively issued, with defective returns on both, the court should not have permitted the amendment of both returns, but only the first, quashing the second writ, for the defendants had the right to surrender their principal until two writs of sci. fa. should have been severally issued and returned nihil, with a proper interval between them, and the permission to the sheriff to amend could not, by relation to the time of making the returns, deprive them of this right. Lee v. Chilton, 5 Munf. 407.
Surrender of One of Two Defendants, No Discharge of Bail.--If special bail be bound in a recognizance for two defendants, the surrender of one only of the defendants is not a full performance of the undertaking of the bail, and no bar to the sci. fa. against him. Higginbotham v. Browns, 4 Munf. 516.
Where Afterwards Discharged, No Bar to Ca. Sa. or the Judgment.--And the surrender of a defendant by the bail, before or after judgment, and his discharge from custody, without being charged in execution, is no bar to a ca. sa. against him, or satisfaction of the judgment, whether such discharge from custody was by the plaintiff's order or not. Higginbotham v. Browns, 4 Munf. 516.
To Whom Surrender Might Be Made.--By the act of 1792, ch. 66, § 31, the surrender might have been made to the sheriff. Ross v. Randolph, 5 Call 296.
When Surrender Might Be Made.--And by that clause and ch. 67, § 59, of the same act, it would seem that surrender might have been made at a monthly court, as well as at a quarterly session. Ross v. Randolph, 5 Call 296.
(2) When Surrender Is Too Late.
Surrender of Principal on Return Day of Sci. Fa. Too Late.--When a scire facias against special bail is returnable at rules on the first Monday of the month, the return day is the appearance day, and the process being returned executed, a surrender of the principal on the return day is not in time to discharge the bail, under the statute. 1 Rev. Code, ch. 128, § 54. Branch v. Webb, 7 Leigh 371 (1836). See post, " Fixing Bail's Liability."
(3) In Detinue.--If the principal in detinue either restored the specific thing, or paid the alternative value, or rendered his body to prison in execution for the same, the special bail was discharged. He had to do one of these three things. Cloud v. Catlett (1833), 4 Leigh 462.
10. Breach of Bail Bond.
Imprisonment of Principal in Another State No Excuse for the Breach.--Plea by the special bail that the principal was, at the time of the issuance of the ca. sa. against him, confined by legal process in Philadelphia, which confinement existed at the time the bail was entered (though this would seem to be immaterial as he went out of the state voluntarily), is unavailing. Ross v. Randolph, 5 Call 296.
It is doubtful even if such imprisonment creates such an impossibility of surrendering the principal as might excuse in a proper case, for the bail might have paid the debt and released the principal, or bailed him. Ross v. Randolph, 5 Call 296.
Imprisonment of Principal in Another State No Excuse for the Breach. --What Plea Should Allege.--It should cover the whole time in which surrender might have been made, up to the day of the issuance of the ca. sa., for it must answer the whole matter contained in the plaintiff's allegation. Ross v. Randolph, 5 Call 296.
11. Fixing Bail's Liability.
a. Steps Necessary. --In actions of debt, etc., where bail is required, the bail is never considered as fixed for the debt, unless the debtor has failed both to pay and to render his body.
The emanation of a ca. sa., and a return to that writ of non est inventus, is necessary to forfeit the recognizance and fix the bail in legal contemplation, and is an indispensable prerequisite to the commencement of proceedings by debt or scire facias. Green v. Thompson, 1 Patton & H. 427; Cloud v. Catlett, 4 Leigh 462.
The apparent conflict in the English authorities is explained by Tyler, J., by the fact that in England there were, strictly speaking, two returns to a ca. sa., the one of non est inventus made in a public book in the sheriff's office whereby the ca. sa. is then " returned" in the sense spoken of in the elementary writers and the bail fixed; and the other the return of the writ itself, with the sheriff's endorsement thereon, to the custos brevium, a mere matter of form and unnecessary to fix the bail. But in our practice we have nothing corresponding to the former return. Green v. Thompson, 1 Patton & H. 427.
Quaere, if the sheriff's endorsement of non est inventus, without actual return of the writ so endorsed, to the clerk, is sufficient to fix the bail. Green v. Thompson (1855), 1 Patton & H. 427.
What Return on Ca. Sa. Sufficient to Entitle to Recourse against Special Bail.--To entitle a judgment creditor to recourse against special bail, it is sufficient that a ca. sa. against the debtor has been directed to the sheriff of the county where the action was brought and judgment recovered, and returned by him non est inventus, though the debtor resides in another county. Branch v. Webb (1836), 7 Leigh 371.
Invalid Discharge in Bankruptcy--Ca. Sa. Rightfully Issued.--A debtor and his rightful bail moved to quash a ca. sa. against the debtor (and thereby avoid the bail's liability), on the ground that before it issued, and since judgment, the debtor took the oath of insolvency at suit of another creditor, and that ca. sa. issued without the order of the court. Except the justice's warrant for the debtor's release, reciting that he had complied with the law for the relief of insolvents, the jailor's receipt for his body to the special bail in the other debt, the warrant bringing him before the justices and the schedule subscribed by him, no evidence was adduced that the debtor was ever charged in execution by any of the creditors mentioned in the warrant of discharge, and hence he was not duly discharged and the ca. sa. was rightfully issued. Turner v. Harris, 1 Rob. 475.
What Necessary in Detinue.--But it is necessary, to charge the special bail in detinue, that the execution against the principal should be superseded as to the specific thing and given for the alternative value, and that a ca. sa. should be sued out against the principal, without effect. Cloud v. Catlett, 4 Leigh 462. Though if these proceedings be omitted, it is matter of defense for the bail, of which he can avail himself only by plea: dissentiente Tucker, P. Cloud v. Catlett, 4 Leigh 462. See ante, " Appearance Bail and Special Bail Compared," and ante, " Discharge of Bail."
b. Where Defendant Dies.
Where the Defendant (in Covenant) Dies.--If the defendant in an action of covenant die, after judgment by default against him and the bail for his appearance, and before a writ of inquiry executed, the plaintiff cannot have a scire facias against the bail, but only against the executors or administrators of the defendant. Saunders v. Gaines, 3 Munf. 225.
(Note by Reporter.) " The bail in such case appears to be discharged altogether, as no mode of proceeding against him is given by law; the writ of inquiry, being against the defendant and the bail, cannot be executed as to the bail alone, and judgment entered against him thereupon, separately from the defendant (see Wallace v. Baker, 2 Munf. 334); neither can he be included in the judgment against the executors or administrators, because the judgment against them is de bonis testatoris or intestati, and that against the bail de bonis propriis, which two different modes of recovery would be incongruous, and cannot be joined in one judgment.
" But where the bail has defended the suit and pleaded, if the defendant die at any time pending the suit, I apprehend the bail is not discharged; because the act of assembly declares 'he shall be subject to the same judgment and recovery as the defendant might, or would be subject to if he had appeared, and given special. bail.'
" And if the defendant die between the verdict on the writ of inquiry, and the judgment thereupon, it seems that judgment is to be entered against him and the bail, in like manner as if he were living. See Revised Code, 1st vol. p. 110, the latter part of the 20th section.
" Where the bail, having defended the suit, and pleaded while the defendant was living, waives his plea after the defendant's death, I presume the writ of inquiry is to be awarded, and judgment entered against the bail alone; because, in that case, it cannot be entered against the defendant, as in Wallace v. Baker." Saunders v. Gaines, 3 Munf. 225.
c. Liability Limited by Penalty.
Where Verdict Is Larger Than Penalty--Judgment.--The bail, however, is only responsible for the amount of the penalty of his bond, and the judgment, where verdict is for more than the penalty, ought to be rendered against the defendant and bail, for the penalty, and against the defendant alone, for the residue of the said damages. Oxley v. Turner, 2 Va. Cas. 334. See post, " Penalty."
12. Equitable Relief to Bail. --Bail cannot be relieved in equity against a judgment at law by default, without assigning some good cause why he did not defend himself at law. Brown v. Toell (1827), 5 Rand. 543.
So, upon a scire facias against special bail, he obtained a bail piece, arrested his principal, surrendered him to the jailor, and took the jailor's receipt for his body, and gave notice thereof to the attorney of the plaintiffs, they not residing in the county. Notwithstanding all this, there was an office judgment upon the scire facias against the bail, and he not appearing to defend the case at the next term, the office judgment was confirmed. Equity will not relieve the bail, he having been guilty of laches is not making this defense at law to the sci. fa. Allen v. Hamilton, 9 Gratt. 255 (1852).
So, in debt upon a bill penal, if, through a mistake of the clerk, the writ be issued for dollars when it should be pounds; and (the plaintiff's declaration being filed, conformably with the bill penal), judgment by default be entered against the defendant and his appearance bail, for so many pounds; the bail, being informed of the mistake before he signed the bail bond, and having made no defense at law, is not entitled to relief in equity. Carter v. Cockrill, 2 Munf. 448 (1811).
But where the plaintiff, induced by the defendant's promise to give security for the debt, gives a written order to the clerk to dismiss suit, and on defendant's failure to fulfill his promise countermands same, but meanwhile defendant absconds and the court discharges the bail, and plaintiff on appeal secures reversal of order discharging the bail and a judgment is entered there (in circuit court), against defendant and bail, on a bill filed by the bail, showing that the defendant had just set-offs against the debt, which, if he had not been precluded, by the course of the proceedings at law, from defending the suit, would have been shown and have extinguished the debt, he is entitled, on the ground of surprise and inability to make his defense at law, to an injunction against the judgment and an account. Carr, J., dissenting on both grounds, on the authority of Carter v. Cockrill, 2 Munf. 448, and Brown v. Toell, 5 Rand. 543. which last he considered directly in point. Mann v. Drewry, 5 Leigh 296.
And a person returned as appearance bail, who denies that he ever executed the bail bond, is not precluded from obtaining relief in equity, by his failing to appear and plead non est factum at law, after being informed that his name was subscribed to such bond; for if, in fact, he did not execute the bond, he had regularly no day in court, and was therefore not bound to take any step for his relief in the action at common law, and as the remedy at law was at least doubtful. Spotswood v. Higgenbotham, 6 Munf. 313.
Equity Loath to Deprlve Plaintiff of His Advantage.--It is a general rule, liable to very few exceptions, that where a right to claim satisfaction of his debt from the appearance bail has inured to the plaintiff by operation of law, without any agency or participation on his part, as is the case here where judgment was entered in due course against the appearance bail--it not appearing that he had ever had himself entered as special bail--no tribunal has a right to take from him his advantage, though the bail claims to have taken all proper steps to have himself entered special bail and that the nonentry was due to misprision of the clerk. Gilliam v. Allen (1826), 4 Rand. 498, approving Dickinson v. Sizer, 4 Rand. 113, where the appearance bail, who had become special bail before a judge in the country and delivered the recognizance to a lawyer who promised but neglected to deliver it to the clerk and have proper entry made, was refused relief against the judgment which in consequence went against him and the defendant for whom he was appearance bail. That case distinguishes Smith v. Wallace, 1 Wash. (VA) 254, and was decided by two judges, Coalter, J., dissenting, saying that to refuse to grant relief would be to overrule Smith v. Wallace, 1 Wash. (VA) 254. For holding in that case see ante, " Judgment against Sheriff for Apparent Failure to Return Appearance Bail."
13. Pleading and Practice.
a. Law Governing as to Bail.
Action by United States for Penalty--State Law Governed as to Bail.--In an action of debt in the state court for penalty incurred under a law of the United States, the law of Virginia concerning the requisition of bail in such cases. is, under the act of congress, (§ 34 of acts of the first congress), referring to the laws of the states as rules of decisions in the United States courts unless otherwise provided by the constitution, laws or treaties of the United States--there being no such provision at that time (1795)--the law which should govern. United States v. Mundel, 6 Call 245.
b. Action Defended by Bail. --Appearance bail, becoming special bail, should be allowed to prove the similiter to a replication was added by the clerk, without his authority and against his consent; and in such case, the bail should be allowed to rejoin, demur, etc. Nadenbousch v. McRae, Gilm. 228 (1821).
Appearance Bail May Withdraw His Plea, Defendant Appearing. --After the appearance bail has defended the writ and pleaded, the defendant may, at a subsequent term, be admitted to appear, give as special bail the same person who was appearance bail, file a plea and go to trial, the appearance bail being permitted to withdraw his plea. Dunlops v. Laporte (1806), 1 Hen. & M. 22; Mann v. Drewry (1834), 5 Leigh 296 (dissenting opinion of Carr, J.). See Keerle v. Norris, 2 Va. Cas. 217.
Appearance Bail--Plea Waived--Judgment.--If an office judgment be set aside and the suit defended by the appearance bail, and he afterwards waives his plea, judgment is to be entered against the defendant as well as the bail. Vanmeter v. Fulkimore, 1 Hen. & M. 329; Wallace v. Baker, 2 Munf. 334; Lee v. Carter, 3 Munf. 121.
c. Procedure for Discharge of Bail.
Rule Proper Proceeding to Discharge Bail.--The procedure for appearance bail seeking to be discharged from his obligation on ground that justice's order requiring bail was not based on proper affidavit, should be a rule to show cause why the bail should not be discharged, and could not be by motion. Hawkins v. Gibson, 1 Leigh 476. See ante, " Fixing Bail's Liability."
Non Est Factum by Person Returned as Appearance Bail.--A plea of non est factum, in behalf of a person returned as appearance bail, who denies that he ever executed the bail bond, is regular and proper. Spotswood v. Douglas (1819), 6 Munf. 312. See ante, " Fixing Bail's Liability," as to plea. Also, ante, " Breach of Bail Bond." See monographic note on " Injunctions" appended to Claytor v. Anthony, 15 Gratt. 518, for injunction by bail.
14. Special Bail to Replevy Attached Effects. --See monographic note on " Attachments" appended to Lancaster v. Wilson, 27 Gratt. 624.
15. Prison Bounds Bonds.
a. By Whom Given.
Validly Could Be Given Only by Prisoner Lawfully Confined.--By the voluntary return of a prisoner after a voluntary escape, he was again in execution as completely as before the escape; except that the plaintiff might elect to consider him at large, by proceeding against the sheriff. The imprisonment, therefore, in this case, as set forth in the pleadings was lawful, and the bounds bond, with sureties given by him after his return, a legal bond, and binding on the obligors therein. Carthrae v. Clarke, 5 Leigh 294. See monographic note on " Executions" appended to Paine v. Tutwiler, 27 Gratt. 440.
Two Debtors May Give Joint Bond.--When there is a joint judgment and execution against two, who have been arrested and committed to prison, they might jointly execute a prison bounds bond. McGuire v. Pierce, 9 Gratt. 167.
b. Operation and Effect.
How Long to Be Detained if Not Charged in Execution.--A debtor, being surrendered to the sheriff by his special bail (after judgment against him in a county court), could not legally be detained in jail, or within the prison bounds, on a bond given for that purpose, more than twenty days from the time of such surrender, if the creditor, his attorney, or agent, did not, within that time, charge him in execution in writing. Green v. Garrett, 3 Munf. 339.
Still a True Prisoner.--A prisoner who gives security for the prison bounds, was from thenceforward not otherwise in the custody of the sheriff, than as might be sufficient to protect the sheriff, against any suit which the creditor might bring against him for not confining the debtor within the walls of the prison. He was in the eye and contemplation of the law, a true prisoner; being, as was said in the case of Lyle v. Stephenson, 6 Call 54, in the custody of the law; but the sheriff had no longer any power over him, either to restrain him or to discharge him, if he resided not within the prison. Meredith v. Duval, 1 Munf. 76.
The sheriff has no power to prevent an escape of the debtor who has given such bond. McGuire v. Pierce, 9 Gratt. 167.
c. Breach. --If a debtor committed to the prison rules, under a prison bounds bond, departed thence, however innocently, from ignorance of the real boundaries, however short the distance and sudden his return, his bond was forfeited. McGuire v. Pierce, 9 Gratt. 167.
So, in an action on a prison bounds bond, the plaintiff was only required to show a departure from the rules; the burden of proof then devolved on the defendant to show that the prisoner was discharged by due course of law. Meredith v. Duval, 1 Munf. 76.
The illegal discharge of a prisoner for want of security for prison fees was not a discharge by due course of law; and the voluntary departure of the prisoner from the prison bounds (within which he actually rented and occupied a house for accommodation, instead of being shut up within the walls of the prison), under color of that discharge, was a breach of the condition of the bond, as much as if he had departed without one Meredith v. Duval, 1 Munf. 76.
But his departure, upon discharge by the sheriff after the time had elapsed for which he can lawfully be confined (see supra, this title), was not a breach of such prison bounds bond. Green v. Garrett, 3 Munf. 339.
When Sheriff Could Discharge for Nonpayment of Prison Fees.--The creditor of an insolvent prisoner, who had the liberty of the rules, was bound to give security for the prison fees: but the sheriff could not legally discharge prisoner unless he was actually insolvent, and unless the plaintiff, having notice of the insolvency, refused to pay his fees, or to give bond for the payment thereof. Meredith v. Duval, 1 Munf. 76; Rose v. Shore, 1 Call 540.
d. Procedure on Breach. --It was the duty of the sheriff, when a person in execution escaped from the prison bounds, immediately to obtain an escape warrant, and give notice thereof to the execution creditor, and assign to him the bounds bond, which he was obliged to receive; and the sheriff was then free from all liability, unless the security in the bond was insufficient at the time it was taken. McGuire v. Pierce, 9 Gratt. 167. The creditor might, at his election, proceed to retake the debtor if he could, or sue upon the bond for the recovery of his debt. McGuire v. Pierce, 9 Gratt. 167. If the debtor should be retaken and committed to jail, his securities were discharged from their bond. McGuire v. Pierce, 9 Gratt. 167.
The Assignment of the Bond to the Creditor upon Breach.--A prison bounds bond taken payable to the sheriff, his certain attorney, his heirs or assigns, the execution debtor having broken the bounds in the time of the same sheriff, was by him assigned to the creditor. Such bond and assignment were good and sufficient in law to render the obligors responsible to the creditor, and the sheriff was not liable for the escape. Vanmeter v. Giles, 1 Rob. 328, citing Meredith v. Duval, 1 Munf. 76.
Quaere, whether, the bond being payable, instead of to the sheriff and his successors in office as it properly should be, to him, his executors, etc., it would be assignable by the succeeding sheriff, as it is by him or by his personal representative, after an escape of the debtor from a succeeding sheriff. Meredith v. Duval, 1 Munf. 76; Vanmeter v. Giles, 1 Rob. 328. See monographic note on " Assignments" appended to Ragsdale v. Hagy, 9 Gratt. 409.
e. Measure of Damages. --The measure of damages in an action on a prison bounds bond was the debt, interest and costs. McGuire v. Pierce, 9 Gratt. 167.
B. SINCE JULY 1ST, 1850.
1. In General. --It will be observed, of course, that many of the general principles touching bail, laid down by the cases decided under the law of bail as it existed before 1850, not having been abrogated expressly or by necessary implication in the change which then took place, are still in force, and as good law as they ever were. But it were vain to repeat them here, even if it were possible in every case to say authoritatively which are still good law until the courts shall have passed thereon. So, reference should be made to the foregoing head in connection with what now follows.
Bail in Civil Cases Since 1850--Construction of Code and Statute Supplemental Thereof.--The Code, which went into effect a few months before the passage of the act, had abolished bail in civil cases as a consequence of the abolition of the writs of capias ad respondendum and ad satisfaciendum ; and instead of the benefits afforded by the writ of ca. sa., had very much extended the lien of the fi. fa. ; and to make that extended lien effectual, had provided means of compelling the judgment debtor, by attachment if necessary, to discover and surrender his estate. Code, ch. 188, p. 716-719. But the debtor could not be so compelled, unless he were within the jurisdiction of the state; and it might happen that after being sued, he might remove from the state, and thus evade the law. The legislature designed to remedy this defect by the act of March 31st, 1851; and for that purpose restored the right to sue out a capias, and require bail on affidavit verifying the cause of action, and showing probable cause for believing that defendant would quit the state unless forthwith apprehended. They did not intend to restore the writ of ca. sa. in such cases, nor require that the bail should be bound to render the body of the principal in execution for the debt. Levy v. Arnsthall, 10 Gratt. 641.
They did not intend to change the law in regard to executions, but merely to insure the personal appearance of the debtor after judgment, in order that the lien of the fi. fa. might be enforced. Therefore the obligation of bail, as it formerly existed, was so varied as to conform to the existing law. Levy v. Arnsthall, 10 Gratt. 641 (1854).
The present law on the subject of bail in civil cases is embraced in sections 2991-2997, inclusive, of the Code of Virginia, and in ch. 106, § § 30-37, inclusive of the West Virginia Code (1899).
Recognizance--Joint or Several.--A recognizance may be joint and several or merely several. It is usually several, binding each cognizor in a specific sum. State v. Lambert, 44 W.Va. 308, 28 S.E. 930.
2. Defendant Arrested by His Bail Is in Custody. --By the act of April 16th, 1852, Sess. Acts, ch. 92, § 4, p. 77, which authorizes the plaintiff to file interrogatories to a defendant in custody, and authorizes the court upon notice to the plaintiff or his attorney, to discharge a defendant from custody, applies to a defendant in custody of his bail, as well as a defendant in jail. Levy v. Arnsthall, 10 Gratt. 641 (1854).
If, after defendant has been arrested under an order pursuant to § § 30, 31, and 32 of ch. 106 of the Code, he gives the bond required, he is relieved from the necessity of going to jail but is still regarded as in custody of his sureties under their covenant that he will be in the county, etc., to answer interrogatories, etc. State v. Peck, 32 W.Va. 606, 9 S.E. 919, citing Levy v. Arnsthall, 10 Gratt. 641.
Bail and Principal--Statute Authorizing Security from Defendant--Effect.--The act of March 31st, 1851, Sess. Acts 1850-51, p. 36, which authorizes a plaintiff in an action to require security in certain cases from the defendant, constitutes the relation of principal and bail between the defendant and his surety; and it is the right of the surety to surrender his principal. Levy v. Arnsthall, 10 Gratt. 641 (1854). On evidence of such surrender, see post, " Discharge by Surrender of Principal."
As to effect of failure to comply with all the requirements of the statute, see monographic note on " Trespass" appended to Quarles v. Lacy, 4 Munf. 251; and on probable cause for holding to bail, see monographic notes on " False Imprisonment" appended to Jones v. Commonwealth, 20 Gratt. 716, and " Attachments" appended to Lan caster v. Wilson, 27 Gratt. 624.
3. Breach of Bail Bond.
Failure to Answer Interrogatories a Breach.--Where defendants had given bail, conditioned according to law, to obtain their release from arrest on a ca. sa., their failure to answer interrogatories filed before a commissioner within the time specified in the summons therefor, is a breach of the bail bond. Trimble v. Shaffer, 3 W.Va. 614.
And this though they were absent from the county when summons issued and were never served therewith, for the absence from the county at the time the summons issued was in itself a breach of the condition of the bond. Trimble v. Shaffer, 3 W.Va. 614; State v. Peck, 32 W.Va. 606, 9 S.E. 919.
And it is immaterial that the suit had been removed to the United States court and no decree had ever been entered in the state court. State v. Peck, 32 W.Va. 606, 9 S.E. 919. On evidence of breach, see post, " Breach of Recognizance."
II. BAIL IN CRIMINAL CASES.
A. WHEN BAIL SHOULD BE GRANTED.
1. Before Conviction.
a. Jurisdiction to Admit to Bail.
(1) By Justice.
In a Felony Case.--A justice of the peace, before whom is brought a prisoner charged with a felony, has power to bail him, where only a slight suspicion of guilt falls on the party; and a recognizance taken before such justice, conditioned for the appearance of such prisoner before the examining court, is good, and a recovery may be had thereon, if the party makes default. Tyler v. Greenlaw, 5 Rand. 711.
Authority of Justice to Grant Bail after Trial by Examining Court.--A justice of the peace has no general authority to admit to bail after an examining court has sent the prisoner to the superior court, for trial. If the examining court refuses to bail, or is silent, the justice has no right to admit to bail; though any judge of the general court may. In taking a recognizance the justice can only rightfully act as the agent of the examining court, in execution of its judgment, and after it has judicially decided that the prisoner is bailable, and fixed the amount of bail. Hamlett v. Com. 3 Gratt. 82.
Justice's Authority, When Special, Must Appear on Face.--The recognizance of bail taken by a justice, of a prisoner sent on for trial by the examining court, must shew on its face that the examining court had entered of record that the prisoner was bailable; and had fixed the amount in which bail should be taken, for the authority of the justice, on which the validity of the recognizance depends, being special, must appear. Hamlett v. Com., 3 Gratt. 82 (1846); Saunders' v. Com., 3 Gratt. 214.
Limitation on Justice's Authority in Granting Bail.--A justice had no power under 1 Rev. Code, ch. 169, § 2, to bind the party in a recognizance to do more than to answer the particular charge of which he was accused. His demanding and taking a recognizance of a more general character was without authority, and therefore void. Bias v. Floyd, 7 Leigh 640.
Unauthorized Condition Void.--Upon complaint of breach of the peace before a justice of the peace, he cannot recognize the party accused to appear before the circuit court to answer the charge, and such condition is void. Com. v. Bartlett, 1 Leigh 586.
(2) By General and Circuit Courts.--The general court had original concurrent jurisdiction with the circuit superior court, and with the judge thereof in vacation, to admit the prisoner to bail for good cause to it shewn. Com. v. Semmes, 11 Leigh 665.
And any judge of the general court may do the same. Hamlett v. Com., 3 Gratt. 82.
(3) By Court of Appeals.--It would seem that the supreme court of appeals can admit to bail on habeas corpus. Ex Parte Eastham, 43 W.Va. 637, 27 S.E. 896. See doubt expressed as to felony in Quarrier's Case, 5 W.Va. 49.
And it is intimated in Ex Parte Hill, 51 W.Va. 536, 41 S.E. 903, that in a proper case the court of appeals would grant bail upon a habeas corpus seeking bail alone, it having original jurisdiction of that writ which has been long used as a process to obtain bail.
And again (obiter), that the court has power, when it has before it a habeas corpus seeking discharge on the claim of unlawfulness of imprisonment, and refuses discharge, to grant bail in a proper case. Ex Parte Hill, 51 W.Va. 536, 41 S.E. 903. See W.Va. Code (1899), ch. 111, § 6, expressly recognizing that court's power in the latter case either to discharge, or remand, or admit to bail. The corresponding section of the Va. Code, § 3034, as amended by acts of 1895-6, omits this reference to the power to admit to bail, which it contained prior to that amendment.
b. Bail in Murder Case.
West Virginia.--The general rule is that a capital case is not bailable, except under strong showing of no probable cause to charge the accused, and in a murder case where the prisoner acknowledges the homicide, the rule is nearly or quite universal. The almost universal practice in West Virginia is to refuse bail in murder cases. Ex Parte Eastham, 43 W.Va. 637, 27 S.E. 896.
c. What Evidence to Be Considered by the Court in Application for Bail. --When a prisoner, who has been remanded for trial by the examining court to the superior court, on a charge of felony, and against whom a bill of indictment has been found by the grand jury, applies to the superior court to be let to bail, on the ground that there is only a slight suspicion of guilt against him, that judgment, and the finding of the bill, are not conclusive evidence against the application, but the court may examine other evidence. But it is a question for the exercise of the sound discretion of the court, and if the court is satisfied that there is material evidence for the commonwealth that is not before the court, was not before the examining court, or spread on the record, the court ought not to sustain the motion. Com. v. Rutherford, 5 Rand. 646.
d. On Acquittal of One of Several Similar Indictments--Prisoner Bailable. --Where twenty-four indictments were preferred against the prisoner for aiding and abetting a bank officer to embezzle, and for larceny of, twenty-four several sums of money, at several times, as several and distinct offenses; and prisoner was brought to trial on one of the indictments, and acquitted, it appearing, that the indictments were founded on a single criminal transaction, and though the acts charged in the indictments might be prosecuted as several offenses, yet they might all have been included in one indictment the acquittal of the prisoner in one case, which it is fair to presume was the strongest, furnishes such presumption of his innocence in the others, as entitles him to be bailed. Green v. Com., 11 Leigh 677 (1841).
But a prisoner, having been examined by the county court, was remanded for trial for the offense of feloniously passing two counterfeit half eagles, one of them to J. C. and the other to W. M., and two indictments found against him, in one of which he is charged with passing one of the counterfeit coins to J. C. on the 13th of October 1842, in the other with passing the other coin to W. M. on the same day. Upon a trial of one of the indictments, the jury find the prisoner not guilty, but his acquittal in that case does not entitle him to be let to bail in the other. No reasons given, and Green's Case, relied on by petitioner, decided two years before, ignored. Summerfield v. Com., 2 Rob. 767 (1843).
It would seem that in the prinoipal case the offenses were not sufficiently intimately connected, for the acquittal of the accused in one to furnish any presumption of his innocence in the other, as they probably could not have been embraced in the same indictment. Hence the decision.
e. Illness as Ground for Bail. --It is good cause for admitting to bail a prisoner confined in close jail upon an indictment for murder, that he is labouring under a present painful, severe, and dangerous disease contracted since his confinement, caused by his imprisonment and likely to be so aggravated by a continuance thereof as probably to terminate fatally. Com. v. Semmes, 11 Leigh 665. See ante, " Bail in a Murder Case." A prisoner indicted for a felony, will be let out on bail, when there is strong ground for the opinion that continued confinement would cause the disease under which the prisoner labors, to determine fatally. Archer's Case, 6 Gratt. 705 (1849).
2. Bail after Conviction. --After conviction of felony there can be no allowance of bail by the court of appeals or a circuit court, except for some cause extraordinary, not growing out of, but independent of, the criminal act, as for sickness, pending a writ of error, and before actual commitment to the penitentiary. The party must be laboring under a present, painful, severe, and dangerous disease, either caused or aggravated by his imprisonment, and there must be strong probable reason, not mere fear, but based on facts, to apprehend that continued imprisonment will be fatal, or at least cause permanent grave injury to health. Ex Parte Hill, 41 S.E. 903, 51 W.Va. 536, citing Semmes Case, 11 Leigh 665, and Archer's Case. 6 Gratt. 705.
B. FORM AND SUFFICIENCY OF RECOGNIZANCE.
1. What Recognizance Should Show--Generally. --When a recognizance is taken, it should show on its face that the condition it contains is to do some act, for the performance of which, such an obligation may be properly taken, and that the court or officer before whom it is taken has authority to act in cases of that general character. Cannon's Case, 96 Va. 576, 32 S.E. 33, citing Archer v. Commonwealth, 10 Gratt. 627.
That It Was Entered into in Proper County.--See Wood v. Com., 4 Rand. 329, where it is said that where nothing appears upon the recognizance of its being entered into in the county to which the justices taking it belonged, that fact is an important one and cannot be supplied by averment.
Intelligible Abbreviation of Name of County in Caption Sufficient Identification.--But where the justice in putting the name of his county in the caption uses a contraction, obviously intended for his county, though it is not stated in the body of the recognizance, of what county the justice was, yet as it states that he was a justice of the said county, that refers to the county named in the caption, and is sufficient. Gedney v. Commonwealth, 14 Gratt. 318.
2. Penalty. --Where the statute expressly provides that a justice shall not admit to bail a person charged with an offense punishable by confinement in the penitentiary, in a less sum than $ 500, such a recognizance taken for a less sum is null and void, and the surety in it cannot be held liable. State v. McCown, 24 W.Va. 625. See ante, " Liability Limited by Penalty."
3. Obligee--Description.
Recognizance to " Commonwealth" of West Virginia--Valid.--A recognizance given in a criminal proceeding in this state, reciting that proceeding, and conditioned for the appearance of the accused to answer it before a circuit court of this state, is valid, though payable to the " commonwealth" of West Virginia. State v. Lambert, 44 W.Va. 308, 28 S.E. 930.
4. Condition.
a. Place of Appearance. --Although the condition of a recognizance does not specify the courthouse of the county as the place at which the prisoner is to appear, and the declaration on the recognizance avers that such was the condition, yet on nul tiel record pleaded, judgment ought to be rendered for the plaintiff, because the statute points out that as the only place where the examination shall be had. Tyler v. Greenlaw, 5 Rand. 711.
b. To Answer Offense Charged.
No Reference to Offense Charged--Void.--A recognizance taken by a county court from a principal and sureties with a condition that the principal shall " personally appear in this court on the first day of the next term and surrender himself into custody and not depart thence without the leave of this court," is a void recognizance because the condition is not substantial compliance with § 4093 of the Code, which prescribes that the condition, when it is taken of a person charged with a criminal offense, shall be, that he appear " to answer for the offense with which such person is charged." It is not " substantially sufficient" as is required by § 4100 of the Code. Commonwealth v. Fulks, 94 Va. 585, 27 S.E. 498.
Interlineation Should Be Stricken Out-Effect.--After a recognizance had been taken, words were interlined by the justice, specifying the charge against the accused, without which it would have been invalid, and the scire facias upon the recognizance described it as though the interlined words had formed a part of it originally. Upon a rule for the purpose, the recognizance may be amended by striking out the interpolated matter, and then, upon a plea of no such record to the scire facias, judgment will be given for the defendants, because of the variance between the recognizance as amended and the recognizance as described in the scire facias. Bias v. Floyd, 7 Leigh 640.
But where the condition of recognizance of one accused of a felony was for his personal appearance " to answer the charge against him," it was held sufficient, no formal language being prescribed for a recognizance. Allen v. Com., 90 Va. 356, 18 S.E. 437, citing Archer v. Com., 10 Gratt. 627, and Bolanz v. Com., 24 Gratt. 31.
In the last case the condition was for his appearance " to answer the indictment; and not to depart, etc.," and was good.
5. Recognizance for Infant. --An infant prisoner being admitted to bail, his sureties were required to enter into the recognizance of bail, without his joining therein himself. Com. v. Semmes, 11 Leigh 665 (1841).
C. DISCHARGE OR EXONERATION OF BAIL.
1. Power of Courts over Recognizances. --Our courts, at common law, prosecuted and exercised a power of discharging recognizances before the same were adjudged to be forfeited. The statute has extended this power, and provided that " when, in an action of scire facias on a recognizance, the penalty is adjudged to be forfeited, the court may, on application of a defendant, and in a county or corporation court, with the consent of the attorney prosecuting, remit the penalty, or any part of it, and render judgment, on such terms and conditions as it deems reasonable." Code, ch. 211, § 10, p. 785. Caldwell v. Commonwealth, 14 Gratt. 698. See Va. Code, § 4099, as amended, and West Va. Code (1899), ch. 162, § 9. The courts of this state, by analogy to the practice in England, have certainly the power to spare the recognizance, at least at any time before the sci. fa. awarded. Com. v. Craig, 6 Rand. 731.
2. Impossibility of Performance--Excuse for Breach. --If the court, at a subsequent term after default of principal had been recorded, was satisfied by competent evidence, that the recognizor was disabled by his wounds from attending the court, it is reasonable and just that his misfortune should not be visited upon him, and his sureties; particularly, as by his appearance afterwards, the ends of public justice will be answered; and in such case, the court ought not to award any sci. fa. against them on a rule for that purpose. Com. v. Craig, 6 Rand. 731.
But, while it is true that the bail may be excused for his default in performing the condition of the recognizance, when it becomes impossible of execution by the act of God or of the law, or of the cognizee, it is not competent for the accused to absolve himself or his bail by accepting office under the government of the United States. Bolanz v. Commonwealth, 24 Gratt. 31.
Performance Rendered Impossible by Act of the Law.--The prisoner's confinement in the penitentiary under sentence for another felony, having rendered it impossible for him to appear at the court to answer a charge of felony at the time prescribed by the recognizance, it constitutes a good defense for the bail to the scire facias against him. Caldwell v. Commonwealth, 14 Gratt. 698.
How Defense Made.--And the defense may be made by plea; but it may also be made by petition or motion. Caldwell v. Commonwealth, 14 Gratt. 698.
But see United States v. Van Fossen, 28 F. Cas. 357, citing principal case, but holding that confinement in penitentiary of a state is no excuse for breach of a recognizance given to the United States.
3. Duress as Ground for Exonerating Bail. --The jurisdiction and authority of the court by whose order he was detained in custody being shown, the officer detaining him in custody would be protected by the order. And a recognizance entered into (before a court of competent authority) for his ease and to procure his enlargement from custody, could not be regarded as obtained by duress. Archer v. Com., 10 Gratt. 627. But the opinion disclaims the intention to hold that under a proper state of facts, of which duress of imprisonment might be predicated, it might not be pleaded that the recognizance was given to procure the enlargement of the principal from all unlawful custody. Archer v. Com., 10 Gratt. 627.
4. Immateriality of Accused's Guilt. --The bail has no legal concern in the acquittal or condemnation of his principal, the condition of the recognizance being, not that the principal shall make good his defense, but that he shall appear and answer to it, and he cannot avoid his liability on the recognizance, arising from the principal's failure to comply with its condition, by showing that the principal was armed with a defense which, if he had appeared and presented it, would have protected him against further prosecution for the offenses with which he was charged. Archer v. Com., 10 Gratt. 627.
5. Evidence.
Principal Incompetent to Prove Inability to Attend--Interest.--The principal in a recognizance of bail entered into by him, with sureties, for his appearance to answer an indictment, was not a competent witness in behalf of his sureties, who were seeking a discharge from their liability by proof of the principal's inability to attend. This was on account of interest. Com. v. Craig, 6 Rand. 731 (1828).
But Affidavits Admissible.--In showing cause, to-wit, the inability of the principal to attend and surrender himself in time, against a rule for a sci. fa. against them, affidavits are admissible, without requiring the presence of the witnesses in court, if the court be satisfied that they have been fairly taken, the motion being addressed to the sound discretion of the court, and there being yet no suit depending in which witnesses could be required to attend by compulsory process. Com. v. Craig, 6 Rand. 731.
6. Discharge by Surrender of Principal. --See Va. Code, § § 4101, 4102, and W.Va. Code (1889) ch. 162, § § 11, and 12.
Section 11, ch. 162, Code, gives surety right at any time to take his principal and surrender him to certain officials there specified, and its operation is to discharge the surety upon such surrender of his principal to the custody of the law. State v. Lambert, 44 W.Va. 308, 28 S.E. 930.
And the bail may arrest the principal and surrender him by common law, and he may, though not necessary, get a bail piece, under Code, ch. 156, § 8, for his arrest. State v. Lambert, 44 W.Va. 308, 28 S.E. 930.
Certificate of Surrender Not Sole Evidence Thereof.--If a surety in a recognizance surrenders his principal to a justice, the failure of the justice to give a certificate of the surrender will not prevent the use of other evidence to prove the surrender. The certificate is not the sole evidence. State v. Lambert, 44 W.Va. 308, 28 S.E. 930.
Though made of a criminal recognizance, this statement would seem to be of general application.
D. DISCHARGE OF ACCUSED FROM BAIL'S CUSTODY.
Being Discharged of the Crime.--Where, upon the adjournment of a certain term of court, a prisoner became entitled, by operation of law, to be forever discharged of the crimes with which he stood charged, the number of terms allowed by law for his trial having passed, and on the last day of that term had entered into a recognizance for his appearance at the next term: he was entitled, upon a habeas corpus, to be discharged from the custody of his bail, which ought no longer to be allowed after the law has discharged him of the crimes. Green v. Com., 1 Rob. 731.
The adjournment of the court, which made his right to this discharge complete, deprived it of its capacity to order the discharge to which the prisoner became entitled. Green v. Com., 1 Rob. 731.
E. BREACH OF RECOGNIZANCE.
Departing without Leave of Court.--Where recognizance provides that the accused shall appear, etc., * * * and " not depart without the leave of the court," the prisoner did not fulfill the condition by merely appearing and pleading, for this provision was inserted for the express purpose of keeping him there to answer any other information that might be exhibited against him before he received his discharge, and from this liability he cannot discharge himself and sureties by any mere act of his own. Allen v. Com., 90 Va. 356, 18 S.E. 437; Archer v. Com., 10 Gratt. 627.
Evidence of Default of Appearance--Record.--If the accused fail to appear before a court as required by a recognizance, his default must be entered of record, and that record is the only admissible evidence of the fact. There need be no calling of the sureties to produce their principal, or any entry of their default. State v. Lambert, 44 W.Va. 308, 28 S.E. 930.
For a recognizance is a contract of record like a statute staple, and the surety must keep watch on his principal, without warning or notice from the creditor, as he has undertaken to guarantee his promise. State v. Lambert, 44 W.Va. 308, 28 S.E. 930.
[*]For monographic note on Bail and Recognizance, see end of case.