Flemming v. Shockley

Russell, J.

1. A surety upon a criminal recognizance who, in order to protect himself from a forfeiture of the bond and the liability consequent thereon, is forced to procure the issuance of a requisition and to expend money to compel the presence of the principal in accordance with his obligation, may recover of the principal on the- appearance bond any expense necessarily incurred by himself as security in preventing a breach of the bond by his principal and in enforcing the presence of the principal, in accordance with latter’s obligation to be present and to abide the judgment and sentence of the court in the criminal ease against him. Erom the promise of the principal to be present, without expense or trouble to his surety, there arises an implied promise on the part of the principal to pay his surety any loss or damage the surety may sustain by reason of the violation of his promise.

2. In a proper case the surety need not wait until the bond has been finally forfeited; he may diminish his damages by producing the principal, and prevent the bond from being estreated. Judgment reversed.