or justice, or to prevent injury and wrong, the King shall be bound by such act, though not particularly named therein. Willion v. Berkley, Plowd. 236, 237; Magdalen College Case, 11 Coke, 68; Case of

tives with it into another state, and the court said: "It is, we think, a sound principle that, when a government becomes a partner in any trading company, it devests itself, so far as concerns the transactions of that company, of its sovereign character, Ecclesiastical Persons, 5 Coke, 14; Case and takes that of a private citizen. Instead of communicating to the company its privileges and prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted." p. 907.

The same principle was stated by Chief Justice Marshall in 1829 in Bank of United States v. M'Kenzie, 2 Brock. 393, Fed. Cas. No. 927, where it was said to be "a wellsettled principle that, where a sovereign becomes a member of a trading company, it devests itself, with reference to the transactions of the company, of the prerogatives of sovereignty, and assumes the character of a private citizen." Syl. ¶ 4. See also United States v. Buford, 3 Pet. 30, 7 L. ed. 591; Briscoe v. Bank of Commonwealth, 11 Pet. 324, 9 L. ed. 735; Darrington v. Bank of Alabama, 13 How. 12, 14 L. ed. 30; Curran v. Arkansas, 15 How. 304, 14 L. ed. 705; Angell, Limitations, 6th ed. § 41.

of a Fine Levied by the King Tenant in
Tail, 7 Coke, 32; 8 Bouvier's Bacon, Abr.
title Prerogatives, p. 92. Laws imposing
taxes would rarely be applied to property
solely owned by the state, for the same
hand would both pay and receive. This
could not apply to the property of another
state found in this, for the recipient would
be different from the person paying. It
is questionable whether any other sovereign
can claim exemption from the laws of the
state which enacts them. If another state
or foreign sovereign sues to collect its
debts in our courts, it cannot claim immuni-
ty from the operation of the statute of
limitations. The doctrine of nullum
tempus, etc., only runs in favor of the local,
not the foreign, sovereign. It may be as-
sumed as a settled principle that, when a
sovereign becomes a member of a trading
company, he devests himself, with reference
to the transactions of the company, of
the prerogatives of sovereignty, and assumes
the character of a private citizen.
If the state of Maryland owned land in
Pennsylvania, the power of the latter state
to tax it could not be questioned; in fact,
it would be caxable by our general laws.
Why will not the same doctrine apply as
to its goods or choses in action? The ability
to collect the latter depends on our laws,-
resort must be had to our courts to obtain
redress for nonpayment. We protect the
property to which that state must look
for security of its debt. The loan is to
the corporation created by this state, re
ceiving its powers and franchises from
Pennsylvania, and why shall not the debt
of that state be taxed as well as that due to
a foreign subject, which has often been
decided to come within our tax laws? The
state of Maryland becomes a lender of
money, trades and deals with a Pennsyl-
vania corporation, brings itself thereby
down to the level of a private individual,
and its debt must bear the same burdens."
Pages 75-77.

The supreme court of Pennsylvania in Susquehanna Canal Co. v. Com. 72 Pa. 72, decided that the property of one state found in another was subject to taxation by the state in which it was located, and some portions of the opinion bear closely on the question involved here. It was said: "The only new and undecided point in the case arises on the money due to the state of Maryland. Is that subject to taxation by our laws? We cannot doubt the power of our legislature to tax the property of another state situated within Pennsylvania, or choses in action, bonds, or other claims, a lien on property protected by our laws or where they must be invoked to coerce payment of the debt. The only question is: Do the laws embrace the bonds due to a sovereign state? It may be conceded that here, as in England, laws which speak in general of inferior persons cannot properly be applied to superiors. Those which speak of the subject do not embrace the sovereign; or of the people do not include the state. It is well And so it may be said here that, when settled, however, that the statute may, by a city of the state of Missouri comes into express words, extend to the state, and Kansas, it comes as a private party, and where it does so it is binding. The statute brings with it none of the prerogatives of of limitations in general will not bar the sovereignty. The general rule is that all sovereign, yet it may be and often is made property not expressly exempted is taxable, so to do, both here and in England; and and the fact that the state does not tax itthis either by express words or necessary self and its municipalities to obtain revenue implication. It has also been held that for itself is no reason why a foreign municwhere an act of Parliament is made for the ipality, who is here in the capacity of a public good, the advancement of religion' private proprietor, and whose property re

to take a new bond or to direct that the principal shall stand under his former bond, upon an indictment being found, the court, since the provisions of the statute that, if the defendant be on bail, may order a bench warrant to issue, or commit him to custody and fix the amount of bail to be given by him, leave the action to be taken

ceives protection from the state, should, from liability thereon after the indictment contribute nothing toward that protection, of his principal, by the failure of the court or should escape paying the taxes imposed upon other owners of property. It is clear that the exemptions from taxation provided for the state, and for cities and municipalities of the state, are only declaratory of the immunity that would be granted on fundamental principles of government, and that the cities and municipalities referred to in the statute and Constitution are those of our own state.

The fact that municipalities of another state, which become proprietors in Kansas, are not accorded exemption from taxation, is no basis for the claim that the interpleader is denied the equal protection of the laws, or deprived of property without due process of law, in violation of the Federal Constitution.

The peremptory writ of mandamus will be issued in accordance with the prayer of plaintiffs' petition.

Petition for rehearing denied.

Petition for writ of certiorari dismissed by the Supreme Court of the United States, October 28, 1912, in 226 U. S. 599, 57 L. ed. 375, 33 Sup. Ct. Rep. 112.

KENTUCKY COURT OF APPEALS.

COMMONWEALTH OF KENTUCKY,
Appt.,

indictment failure to require new bond liability of surety. 1. A surety on a bail bond is not released Note. - Liability of bail where principal fails to appear from no fault of

his own.

This note is supplementary to notes covering the same subject attached to Hargis v. Begley, 23 L.R.A. (N.S.) 136, and State v. Funk, 30 L.R.A. (N.S.) 211.

It will be noticed that in the note in 23 L.R.A. (N.S.) it was stated that sureties will not be liable where the principal subsequently appears and shows that his nonappearance was caused by his sickness, citing Texas cases.

|

within the discretion of the court.
Same

terms of obligation.

2. A surety on a bail bond who covenants that his principal shall appear before the grand jury to answer the charge against him, and shall at all times render himself amenable to the orders and process of the court in the prosecution of said charge, and if convicted shall render himself in execution thereof,-continues bound after indictment for the future appearance of his principal, until the court requires a different bond, or his liability is terminated by surrendering his principal to the au

thorities.

Same

effect of insanity of principal. 3. The insanity and disappearance of his principal do not release the surety on a bail bond.

A

(January 16, 1914.)

PPEAL by the Commonwealth from a judgment of the Circuit Court for Shelby County in favor of the surety in a proceeding for the forfeiture of a bail bond. Reversed.

The facts are stated in the opinion.

Messrs. Charles H. Sanford, James Garnett, Attorney General, and C. H. Morris, Assistant Attorney General, for appellant:

If the bail permits the principal to go into another state, and he is arrested there by the authorities of the other state, and is

one for the trial court, upon the return of an order to show cause why a conditional judgment entered against the obligors should not be made absolute, under a statute providing that, if the defendants appear and show sufficient cause for default, to be determined by the court, the conditional judgment may be set aside; but if the excuse is not sufficient, or if they fail to appear, the judgment must be made absolute. Carson v. State, 5 Ala. App. 280, 59 So. 718; 5 Ala. App. 283, 59 So. 719; 5 Ala. App. 194, 59 So. 720. In these cases the appellate court refused to disturb the finding of the trial court against the obligors, the only evidence of the principal's sickness being his own testimony, the testimony of other witnesses that he looked de-sick, and what purported to be a physician's certificate dated four days after appearance day, it appearing that the principal left the state a few days before appearance day.

In Holley v. State, Tex. Crim. Rep. 157 S. W. 937, it was held that where, by statute, sureties are exonerated from liability if the principal is prevented from appearing by reason of sickness, such fense, to be available, must be pleaded.

The question of the credibility and sufficiency of the evidence as to sickness excusing the principal's failure to appear pursuant to the condition of the bail bond is

If, by illness or accident, a defendant is

thus prevented from appearing for trial, this is no excuse for the surety, and he is liable under his bond.

Taylor v. Taintor, 16 Wall. 366, 21 L. ed. 287; Yarbrough v. Com. 89 Ky. 151, 25 Am. St. Rep. 524, 12 S. W. 143.

It was incumbent on the bail to have notified the proper officer that the defendant, Will Allen, was of unsound mind, and either have him placed in custody, or have an inquest held and have him put in the lunatic asylum.

Weddington v. Com. 79 Ky. 582; guire v. Com. 3 B. Mon. 349.

Messrs. P. J. Beard and George Pickett also for appellant.

Al

L.

Mr. E. B. Beard, for appellee: The surety is released for the failure of the principal to appear, when that failure is caused either by the act of God or by the

act of the law.

Com. v. Fleming, 15 Ky. L. Rep. 491; Wood v. Com. 17 Ky. L. Rep. 1076, 33 S.

W. 729.

Messrs. Edwards, Ogden, & Peak and Holland & Davis also for appellee.

the county court he was held to answer said charge before the grand jury, and executed a bond in the sum of $500, with Thomas Allen as his surety, for his appearance before the grand jury at the January term, 1911, of the Shelby circuit court. At that term the grand jury returned an indictment against Allen for grand larceny. The record fails to show that any order was made at the January term, either upon the subject of the return of the indictment by the grand jury, or upon the subject of bail. At the May term, 1911, an agreed order term, the "defendant to remain on the same was entered, continuing the case to the next At the September

bond as heretofore."

term, 1911, the case was again continued up

on the motion of the commonwealth to the

January term, 1912, of the court, the “de

fendant to remain on the same bond as heretofore." On the night of December 17, 1911, Allen disappeared, and has not been heard of since. At the January term, 1912, his bond was forfeited, a bench warrant was issued for his arrest, and the case continued to the May term. Subsequently a summons

Miller, J., delivered the opinion of the was issued against appellee, Thomas Allen,

court:

J. Will Allen was arrested in December, 1910, on a warrant charging him with grand larceny. Upon an examination in prevented from attending court, his recognizors should be relieved from liability; but such excuse is only available during the term of court at which the forfeiture is taken, upon an application for discharge therefrom as contemplated by statute; and is not available as a defense in an action in the district court upon the bail bond being declared forfeited by the county court. State v. Hines, 37 Okla. 198, 131 Pac. 688; State v. Hines, Okla. Pac. 592.

136

And in an action on bail bond duly declared forfeited by a court having jurisdiction of the criminal action, sickness of principal on the day of forfeiture constitutes no defense against either the liability of the sureties or of the principal. Ibid.

In the former case the court said that it had "no hesitancy in saying that in the call of a criminal case, either for hearing, arraignment, trial, or judgment, or upon any other occasion when his presence in court may be lawfully required, if a defendant, on account of illness, is unable to be present, and such fact is made to satisfactorily appear, it would be either error or an abuse of discretion to refuse either to pass the case or grant a continuance, or upon sufficient showing to vacate and set aside the order of forfeiture. If, by illness or accident, a defendant is prevented from attending court, his recognizors should be relieved from liability on account thereof. But this contemplates that the relief sought be presented at the proper time, and in

the surety in the bond executed in the
county court, to show cause why judgment
should not be rendered against him for $500,
the amount called for by the bond. In his
the proper court; otherwise, as in all other
cases, the judgment of forfeiture would
become final. In such cases the sureties
must take timely notice of the fact of the
default of their principal. They have volun-
tarily become his jailers,
and if,
by reason of illness or unavoidable casual-
ty, their principal has been prevented from
being present at court, it is their duty to
see to it that excuse be rendered at the
same term of the court at which the for-
feiture was taken."

And death of principal is no defense to suit on forfeiture bail bond, where virtually all the testimony offered to prove the death is hearsay. Heiman v. State, Tex. Crim. Rep. 158 S. W. 276.

Nor is a letter received by the surety from his principal, stating that he was sick, but expressing willingness to come to trial, with the further testimony that he had not been heard of for two years, evidence of such force and cogency as to present the issue of death. Ibid.

In Edwards v. Hennepin County, 116 Minn. 101, 133 N. W. 469, it was held that forfeiture of cash bail was properly vacated where the failure of appearance was due to the fact that while plaintiff was awaiting trial he was taken into custody and sentenced to the reformatory for violating his parole on a former sentence.

As to taking accused into custody as release of surety, see note to Com. v. Skaggs, 44 L.R.A. (N.S.) 1064. J. H. B.

The circuit court was of opinion that the proof did not show that Allen was dead; but that it did show he was insane at the time of his disappearance. Allen left the state with-court, and this had the effect of leaving the out telling anyone of his intention of leaving, and in such a way and under circumstances that fully justified the conclusion reached by the circuit court. Treating those findings of fact as established, it becomes necessary to consider only the first and third defenses presented by the response.

failure of the principal in the bond to appear was caused by the act of God; and in support of this contention he relies upon Com. v. Fleming, 15 Ky. L. Rep. 491, and Wood v. Com. 17 Ky. L. Rep. 1076, 33 S. W. 729. But in both of those cases the defendant had been adjudged a lunatic by a court of competent jurisdiction; and in the Wood Case the defendant was actually confined in the asylum at the time his bond was forfeited. In that case the court said: "The lunatic was held by the state as such, and in charge of an officer refusing to deliver him up, and the penalty should not have been enforced against the bail in such a state of case, as was held by this court in the cases of Alguire v. Com. 3 B. Mon. 349, and Kirby v. Com. 1 Bush, 113."

dition seem all to point to an ancient and extremely rigorous form of suretyship or hostageship, which would have rendered the surety liable to suffer the punishment that was hanging over the head of the released prisoner. In Normandy these sureties are compared to jailers, and a striking phrase speaks of them as 'the duke's living prison.' In England when there is a release on bail, the sureties are often said to be bound corpus pro corpore." Vol. 2, p. 589. The bail being thus bound for the production of his principal, he can excuse himself for a failure to do so only upon showing that his principal, if living, is in the custody of the state, and therefore beyond the control of the bail. If he permits his principal to escape beyond the jurisdiction of the court, he takes the responsibility; and, being in law the custodian of the principal, the bail must produce him either for trial or for surrender, as provided by the statute.

In holding that the appellee was released by the insanity of his principal, we are of opinion the circuit court was in error.

Judgment reversed, and cause remanded for further proceedings.

In the Fleming Case, the defendant made his escape while being conveyed to the asylum by the officer having him in charge; and, in releasing his surety, the superior court said: "In the case before us the principal's appearance was prevented by the act of the commonwealth, superinduced by the act of God. In the interest of its citizens the commonwealth saw fit to have the accused confined in an asylum. This was, perhaps, as much for the security of other citizens of the state as it was for the safekeeping of the lunatic himself. When the accused was thus confined he was beyond RE PROCEEDINGS TO ENFORCE COL the reach of the supervision of his sureties. They were powerless to take his body and present it to the court. He was, to use an old legal phrase, civilly dead. His responsibilities as a man had for the time being, ceased."

In Taylor v. Taintor, 16 Wall. 366, 21 L. ed. 287, the court said that when bail is given the principal is regarded as delivered to the custody of his sureties.

And in Yarbrough v. Com. 89 Ky. 151, 25 Am. St. Rep. 524, 12 S. W. 143, this court said: "It is no defense to a proceeding upon a forfeited bail bond that, at the time of the forfeiture, the accused was confined in prison in another state for a crime there committed, he having voluntarily left this

state while out on bail." The decision was

rested upon the ground that the bail, having the virtual custody of the accused, might have prevented his departure from the state by a surrender of him at any time.

This rule has ever been the law in this country and in England. In treating of mainprise and of bail, Pollock & Maitland, in their History of English Laws, say: "There was some difference between these two institutions, but at an early time it became obscure. Bail implied a more stringent, mainprise a laxer, degree of responsibility. English, Norman, and French tra

MINNESOTA SUPREME COURT.

LECTION OF PERSONAL PROPERTY
TAXES WITHIN THE COUNTY OF ST.
LOUIS.

STATE OF MINNESOTA, Respt.,

V.