State v. Frith , 14 La. 191 ( 1839 )

Martin, J.,

delivered the opinion of the court.

This is a civil proceeding against sureties on their bail bond. They were regularly called on their recognizance at the proper term of court, and failed to appear. A judgment, ni si, was entered, and a rule taken to show cause why final judgment should not be entered up.

The defendants showed for cause, why judgment should not be entered on their recognizance for the appearance of the principal, who was charged with an assault and stabbing with an intent to commit murder, the following grounds :

Where a bail bond is taken in pursuance of an order of court, the entry on the minutes requiring bail in seven hundred dollars, ■when the bond is taken in the penalty of seven thousand dollars, and the judge, at a subsequent term, corrects and alters the minutes to seven thousand dollars : Held, That the bond is not thereby invalidated; and the sureties can only be relieved on the score of error in signing it, which does not result from altering the minutes, whether done le-gallyorillegally. The sureties in a bail bond are not entitled to an exoneratur when they have made no formal surrender of the principal, even if he be confined in prison for a subsequent of-fence not bailable, and after-wards makes his escape.

1. The illegality of the bail bond.

2. The state cannot recover, and the bail are entitled to an exoneratur, because they were disabled from surrendering the principal, in consequence of his close confinement in prison for an offence not bailable.

3. The sheriff and coroner having resigned, there was no officer or person to whom the bail could surrender the principal.

I. It is contended that the bond was illegal, because there was no order of court or any competent authority to take it; the order of court requiring a bond being for the sum of seven hundred dollars, as appears from an inspection of the record. That the records o'f the court, as they appeared for six months after taking the bond, exhibited the order of bail in the sum of seven hundred dollars only; and if this entry was afterwards altered or erased, it was done illegally, and without the knowledge or notice to these defendants ; and if the bond is good for any sum, it can only be so for the sum of seven hundred dollars, agreeably to the order of court, or authority under which it was taken.

It appears from the record and evidence of the case, there was an order of court requiring the principal charged with the offence, to give bail for his appearance at court. The fact further appears that this order, as entered on the minutes of the court, directed the penally of the bond (o be in the sum of seven hundred dollars; and at the next term, the court ordered the entry to be amended, by the insertion of the sum of seven thousand dollars. The defendants had, in the meanwhile, given bond in the penalty of the latter sum.

Admitting the amendment of the order to be illegal, it cannot affect a bond which was given previously thereto. And if the defendants can be relieved at all, it must be on the ground of error. Nothing shows this to be the case. If there be no error, the bond must be valid for the sum mentioned therein. And when we consider the smallness of the sum of seven hundred dollars, demanded as a penalty from the principal offender, in an indictment for an assault with an intent to murder, in connection with the fact of two thousand dollars having been demanded of the accessory, under t,be same charge ; and also the circumstance of the principal and his sureties having signed the bond, with a penalty of seven thousand dollars, and likewise from the additional fact of the district judge making the amendment or alteration in the original entry, from seven hundred to seven thousand dollars, whether done illegally or not, we are forced to the conclusion that there was no error in the execution of the bond.

are not exonerated when they have made no surrender of the principal, even where the sheriff andcoronerboth resign; for these officers are required to act until their successors are appointed .

II. The bail are not entitled to an exoneratur in this case, because they have made no formal surrender. The principal being confined or imprisoned for an offence not bailable, did not prevent a formal surrender, which might have been made. The principal being in the custody of the sheriff, by a formal declaration to that officer, that the bail wished to surrender him, and did not consider themselves any longer bound for his appearance, they might have been exonerated.

III. In relation to the other ground relied on, the defence is equally untenable. The sheriff and coroner, even after having resigned, were empowered by law to act, and to continue their respective functions and duties until their successors were appointed. Their resignations, therefore, did not prevent the surrender of the principal offender into the custody of the law and its officers.

It can hardly be doubted that before the passage of the law by the legislature, requiring sheriffs and other officers to act after their term of service has expired, until their successors are appointed, or without it, the bail could not be discharged by the resignation of the sheriff and coroner; although itmight be inconvenient, and their liability extended beyond their wish to retain the principal offender, until a new officer should be appointed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.