Howell v. . Jones ( 1893 )

Burwell, J.:

We do not think that the facts found by his . Honor justify the conclusion that the defendant Sheriff is not liable to plaintiffs as special bail, according to the provisions of section 313 of The Code.

The defendant was not to be discharged from arrest until he had given bail or deposited the amount mentioned in the order. The Code, §298. ' No one but “a resident and freeholder within the State” is qualified to act as such bail. The Sheriff should not have accepted an undertaking that did not show on its face that the surety thereon had those qualifications, or if he did so, he should have required that the surety’s justification should have established those facts. It was most reasonable that plaintiffs should except to such an undertaking. When notified by plaintiffs that they excepted to the undertaking given by defendants, it was his duty to give notice to plaintiffs as required in section 305. The evident intent of the statute is that it shall be a written notice, in which shall be mentioned the time when and the place where the bail will justify. It is not found that any such notice, oral or written, was given to plaintiffs. The fact that one of the plaintiffs was near the place where the alleged justification took place and knew what was doing there, cannot, we think, exonerate the Sheriff from liability. This second omission of duty prescribed for him by the law confirmed his liability to plaintiffs as special bail. He failed to carry out the plain mandates of The Code, made for his guidance and the protection of plaintiffs’ rights, and the “goodfaith” with which he acted cannot shield him from liability.

We confine ourselves to the consideration of the facts found by his Honor. It was unnecessary to send up in the record the various affidavits offered by the parties, since we cannot examine them to ascertain other facts that might tend to the Sheriff’s exoneration. Error.