While, as indicated by the title, the annotation is confined to cases involving lack of authority of the court or officer who assumed to take or require the bond, to the exclusion of cases involving defects of form or irregularities in other respects, it includes cases involving lack of authority in the particular circumstances, as well as those involving total lack of authority. Upon the analogous question as to the right to recover back cash bail taken without authority, see annotation in 26 A.L.R. 211.

As a general rule, a bail bond taken without authority, being void, does not bind the principal or his sureties.

United States. United States v. Rocafort (1901) 1 Porto Rico Fed. Rep. 318.

Alabama. Governor v. Jackson (1829) 15 Ala. 703; Antonez v. State (1855) 26 Ala. 81; Evans v. State (1879) 63 Ala. 195.

California. San Francisco v. Hartnett (1905) 1 Cal. App. 652, 82 Pac. 1064.

Colorado.-Haney v. People (1889) 12 Colo. 345, 21 Pac. 39; Huston v. People (1898) 12 Colo. App. 271, 55 Pac. 262; Thompson v. People (1912) 23 Colo. App. 204, 128 Pac. 863; Rupert v. People (1894) 20 Colo. 424, 38 Pac. 702.

Illinois. Solomon v. People (1853) 15 Ill. 291; People v. Cook (1896) 68

Ill. App. 202; Reardon v. People (1905) 123 Ill. App. 81.

Blackman

V.

Indiana. State (1859) 12 Ind. 556; Byers v. State (1863) 20 Ind. 47; State v. Wenzel (1881) 77 Ind. 428; State v. Winninger (1881) 81 Ind. 51.

Iowa.-State v. Hufford (1869) 28 Iowa, 391.

Kentucky. Harris v. Simpson (1823) 4 Litt. 165, 14 Am. Dec. 101; Basket v. Scott (1824) 5 Litt. 208; Com. v. Lee (1830) 3 J. J. Marsh. 698; Chinn v. Com. (1830) 5 J. J. Marsh. 29; Hostetter v. Com. (1851) 12 B. Mon. 1; Schneider v. Com. (1861) 3 Met. 409; Shaw v. Com. (1863) 1 Duv. 1; Com. v. Roberts (1864) 1 Duv. 199; Branham v. Com. (1867) 3 Bush, 3; Wallenweber v. Com. (1867) 3 Bush, 68; Thomas v. Mann (1836) 4 Dana, 452.

Minnesota.

State v. Bartlett (1897) 70 Minn. 199, 72 N. W. 1067. Mississippi.-Pace v. State (1852) 25 Miss. 54.

Missouri.-State v. Walker (1825) 1 Mo. 546; State v. Woodward (1900) 159 Mo. 680, 60 S. W. 1042; State ex rel. Owens v. Fraser (1901) 165 Mo. 242, 65 S. W. 569; State v. Crosswhite (1905) 195 Mo. 1, 93 S. W. 247; State v. Schmidt (1918) Mo. W. 1071.

200 S.

Dickenson v. State (1886) 20 Neb. 72, 29 N. W. 184.

(1806) 2 N. J. L. 55. New York. Bank of Buffalo v. Boughton (1839) 21 Wend. 57.

Ohio. Scio v. Hollis (1900) 10 Ohio S. & C. P. Dec. 99, 7 Ohio N. P. 281; State v. Clark (1846) 15 Ohio, 595; Powell v. State (1846) 15 Ohio, 579.

Oklahoma. rel. Territory ex Thacker v. Reynolds (1905) 15 Okla. 185, 82 Pac. 574; Territory ex rel. Thacker v. Woodring (1905) 15 Okla. 202, 82 Pac. 574.

Vermont.

Stevens v. Hutchins (1921) 95 Vt. 361, 115 Atl. 229. Canada.-Re Hopfe (1913) 22 Can. Crim. Cas. 116, 5 Alberta L. R. 398, 23 West. L. R. 751, 4 West. Week. Rep. 1, 10 D. L. R. 216.

In the following cases, the court, upon deciding that the bail bond was void because taken without authority, assumed that there was no liability thereon:

United States.-United States V. Case (1871) 8 Blatchf. 250, Fed. Cas. No. 14,742; United States v. Hudson (1894) 65 Fed. 68.

Alabama.-Gray v. State (1869) 43 Ala. 41; Jones v. State (1879) 63 Ala. 161.

Arkansas.-Cooper v. State (1861) 23 Ark. 278; Blevins v. State (1876) 31 Ark. 53; Thomm v. State (1880) 35 Ark. 327.

Iowa. State v. Carothers (1860) 11 Iowa, 273.

Kansas.-Morrow v. State (1870) 5 Kan. 563; State v. Davis (1881) 26 Kan. 205; Cox v. State (1897) 5 Kan. App. 539, 47 Pac. 191.

Louisiana.-State v. Hebert (1845) 10 Rob. 41; State v. Harper (1848) 3 La. Ann. 598; State v. Hays. (1849) 4 La. Ann. 59; Louisiana v. Fay (1852) 8 La. Ann. 490; State v. Smith (1857) 12 La. Ann. 349; State v. Branner (1860) 15 La. Ann. 565; State v. Whitaker (1867) 19 La. Ann. 142; State v. Collins (1867) 19 La. Ann. 145; State v. Balize (1886) 38 La. Ann. 542; State v. Toups (1892) 44 La. Ann. 896, 11 So. 524.

Maine. State v. Berry (1831) 8 Me..179; State v. Young (1868) 56 Me. 219.

Mississippi. Smith v. State (1905) 86 Miss. 315, 38 So. 319.

Missouri.-Todd v. State (1825) 1 Mo. 566; State v. McGunnegle (1834) 3 Mo. 402; State v. Howell (1848) 11 Mo. 613; State v. Randolph (1858) 26 Mo. 213; State v. Nelson (1859) 28 Mo. 13; State v. Ferguson (1872) 50 Mo. 409; State v. Caldwell (1894) 124 Mo. 509, 28 S. W. 4; State v. Watson (1893) 54 Mo. App. 416.

Nevada. State v. Murphy (1897) 23 Nev. 390, 48 Pac. 628.

New Hampshire.-State v. Fowler (1854) 28 N. H. 184; STATE v. RICCIARDI (reported herewith) ante, 609. New Jersey. State v. Kruise (1867) 32 N. J. L. 313.

(1853) 2 Monaghan, 757.

Tennessee.-State v. Horn (1838) Meigs, 473; State v. McCoy (1873) 1 Baxt. 111.

Texas.-Busby v. State (1854) 13 Tex. 136; Jackson v. State (1854) 13 Tex. 218; Short v. State (1884) 16 Tex. App. 44; State v. Wren (1858)

21 Tex. 379; State v. Russell (1859) 24 Tex. 505; State v. Miller (1869) 31 Tex. 564; Moore v. State (1872) 37 Tex. 133; Harbolt v. State (1898) 39 Tex. Crim. Rep. 129, 44 S. W. 1110; Holmes v. State (1876) 44 Tex. 631; Leal v. State (1907) 51 Tex. Crim. Rep. 425, 102 S. W. 414; Ochoa v. State (1907) Tex. Crim. Rep. 102 S. W. 415; Morrow V. State (1919) 86 Tex. Crim. Rep. 354, 216 S. W. 1100.

Vermont.-State Treasurer v. Seaver (1835) 7 Vt. 480; State v. Lamoine (1881) 53 Vt. 568.

Virginia. Hamlett v. Com. (1846) 3 Gratt. 82.

II. As common-law obligation. It was sought in the following cases, for the most part unsuccessfully, to hold the sureties on an unauthorized bail bond liable upon the theory that the bond was enforceable against them as a common-law obligation:

Thus, in Com. v. Roberts (1864) 1 Duv. (Ky.) 199, where it was conIceded that a bail bond taken by a jailer without authority was not a good statutory bond, it was held that it was not good as a common-law bond, and that the sureties were not liable thereon. It was argued that the delivery from prison of the defendant and his enjoyment of his liberty by reason of the bond was a valid consideration, and rendered it obligatory, and the court stated that if the commonwealth was precluded from a recapture and reimprisonment of the accused by reason of the bond, there would be great force in the argument, but held that this was not so, because the order of the judge did not, in terms, direct who was to take the bond, and that, therefore, its legal import was that the bond was to be taken by the proper authority, and that, even if the court had, in terms, directed the jailer to take the bond, he was not authorized by law to do so, and his action could not bind the commonwealth, and the commonwealth, not being bound, could not insist that the other parties be bound, since that would destroy the mutuality of the bond.

A bail bond to secure the appearance of a prisoner to answer to the charge of grand larceny in the police court, taken without authority because the clerk illegally fixed the amount of the bail, is entirely void, and unenforceable against the sureties as a common-law obligation or bond. San Francisco v. Hartnett (1905) 1 Cal. App. 652, 82 Pac. 1064.

And a bail bond taken by only one justice of the peace without authority, because the prisoner had been committed for want of a bond, is void as a common-law obligation, and the sureties thereon are, therefore, not iiable. Huston v. People (1898) 12 Colo. App. 271, 55 Pac. 262; Thompson v. People (1912) 23 Colo. App. 204, 128 Pac. 863.

And in People v. Cook (1896) 68 Ill. App. 202, it was held that a judgment against the sureties could not be sustained upon the theory that the bail bond was valid as a common-law obligation.

In State v. Walker (1825) 1 Mo. 546, holding a bail bond taken by a sheriff without authority in a criminal case void, and the sureties not liable, it was contended by the attorney general that the bond was binding, having been given for a good and valuable consideration and for a legal act, and that, if there was no statute forbidding the bond to be taken by the sheriff, it was a lawful contract and binding by all the principles of the common law; but the court said, in answer to this argument, that the state was not in all respects like an individual in respect to its capacity to take rights; that it had no capacity to take a chose in action, unless it was given by express law, and that it had no natural rights, being an artificial being; that it, of necessity, must act by agents, and no one can be its agent without express authority from it, and that the sheriff has his duties prescribed by law, and, if he transcend them, his act is entirely void; and that if the prisoner goes at large on taking a void bond, it is a voluntary escape, for which the state has its remedy, and that it will not do to say that the

state affirms the transaction by suing on the bond, since it is the act of the officer only, as the consent of the state can only be evinced by a legislative act.

A bail bond taken without authority by a sheriff, because taken for the appearance of one who has been committed to jail on a criminal charge, is void as a common-law obligation. Rupert v. People (1894) 20 Colo. 424, 38 Pac. 702.

And a bond in a bastardy case to save the defendant from imprisonment, taken by the magistrate without authority of law, and in violation. of law, because the statute authorizing it was unconstitutional, and the bond was forbidden by the Constitution, is void, and cannot be enforced against the sureties as a common-law bond. Byers v. State (1863) 20 Ind. 47.

And in Reardon v. People (1905) 123 Ill. App. 81, a bail bond taken by a police magistrate alone, for the appearance of one committed to jail to answer a criminal charge, without authority, because the statute requires in such case two justices, was held void, and a judgment against the sureties not sustainable, even on the theory that the, bond would be valid as a common-law obligation.

A bail bond taken by a sheriff without authority in a felony case, because the amount of the bond was not the amount indorsed and specified on the warrant of commitment, is of no validity as a common-law obligation, and the sureties are, therefore, not liable. State ex rel. Owens v. Fraser (1901) 165 Mo. 242, 65 S. W. 569. Upon the argument that the bond was good as a common-law bond, the court said that, while the authorities upon this question were somewhat in conflict, the decided weight seemed to be that the bond was not good as a common-law bond; that the rules as to bonds which may be enforced as common-law obligations between individuals do not apply to bonds executed to the state for the appearance of persons charged with criminal offenses, for in criminal cases they are purely statutory,

A bail bond taken by the circuit judge without authority prior to the pendency of the case before him is void, and, therefore, creates no liability under the common law as against the sureties. Clute v. Ionia Circuit Judge (1902) 131 Mich. 203, 91 N. W. 159.

And a bail bond taken without authority, after conviction, on the allowance of a writ of error, is void, and a demurrer to the declaration in an action against the sureties on the bond is well taken. State v. Clark (1846) 15 Ohio, 595. The court said that if the bond was not good as a statutory bond, it was not good in common law.

a

In Dickenson v. State (1886) 20 Neb. 72, 29 N. W. 184, holding a bail bond taken by a sheriff without authority, because the accused had been indicted and arrested, and had appeared and pleaded to the indictment, and stood ready for trial, void, and the sureties, therefore, not liable, it was unsuccessfully contended. that the bond was good as a commonlaw bond, and enforceable as such against the sureties. The court said that it had found only two cases in which it was clearly held that a recognizance taken without authority in a criminal case could be enforced as common-law bond; that these two cases-namely, State v. Cannon (1872) 34 Iowa, 325, and Dennard v. State (1847) 2 Ga. 137-were not reasoned at all, and did not cite authorities; and that the rule that in matters between individuals a bond or other obligation given by one to the other, upon a lawful and adequate consideration, is binding, according to its terms, although such bond or obligation may be deficient in matter of form, or in the manner and time of its execution, acknowledgment, delivery, or filing, where it is sufficient to serve its beneficial purpose to the party at whose instance or for whose avail the same is Igiven, did not apply to a case like the one at bar. The court further said that to hold that an unauthorized

person may accept a recognizance running to the state, which would bind the person entering into it, was to hold that one private, unauthorized person may make another a debtor of the state, a proposition illogical in theory and dangerous in practice, and that while the court desired to place the decision rather upon principle than upon authority, yet it had to be admitted that the weight of authority was in line with the holding that such a bond would not be good as a common-law bond.

A bail bond taken in a criminal case, without authority, by a deputy clerk of the district court, is void, and the sureties are, therefore, not liable. Territory ex rel. Thacker v. Reynolds (1905) 15 Okla. 185, 82 Pac. 574; Territory ex rel. Thacker v. Woodring (1905) 15 Okla. 202, 82 Pac. 574. Upon an affirmance of the first case upon a rehearing in (1905) 15 Okla. 186, 82 Pac. 575, it was held that such bond could not be enforced as a common-law obligation. And upon an affirmance of the second case on a rehearing in (1905) 15 Okla. 203, 1 L.R.A. (N.S.) 848, 82 Pac. 572, 6 Ann. Cas. 950, it was contended that the bond was good as a common-law bond, but the court said that a statutory bond which was void for want of authority to execute it could not be enforced as a commonlaw obligation.

A bail bond taken by the mayor of a city without authority, after conviction and sentence, without an order of the court of common pleas or a judge thereof on granting leave to the accused to file a petition in error in the court of common pleas, was held void, and a demurrer to the petition to recover upon the bond against the sureties was sustained, in Scio v. Hollis (1900) 10 Ohio S. & C. P. Dec. 99, 7 Ohio N. P. 281, where it was urged that the bond was enforceable as a common-law obligation, inasmuch as the defendant was released in consequence of the bond, and that the obligors therein should be required to discharge their voluntarily. assumed obligations, and the court said that there seemed in criminal

cases to be some difference of opinion as to whether the bond taken for a prisoner's appearance without authority of any statute could be good as a common-law bond, but that, whatever might be the holding in other states, there was no doubt as to the ruling in Ohio that such a bond was not good as a common-law bond.

A bail bond in a felony case, taken without authority by a justice of the peace for the appearance of the accused before a justice of the peace, instead of, before the circuit court, as required by statute, is void and the sureties are not liable. Williams v. Shelby (1865) 2 Or. 144. The lower court held that, while this bond was not good as a statutory bond, it might be sustained and held valid as a common-law bond, and the sureties held liable thereupon, but the appellate court overruled this holding and held it erroneous.

And in holding a bail bond, taken without authority by a single judge of the court of common pleas to release a person in custody charged with a criminal offense, void, and the sureties, therefore, not liable, in Powell v. State (1846) 15 Ohio, 579, the court said that it might be claimed that the bond, although not a statutory recognizance, might take effect as a common-law bond, but that, in matters of criminal procedure the law tolerated no mongrel of such sort; that construing a matter to be another thing because it is not what it purports to be, in order to give it effect and at all events to keep it alive, leads to the production of a kind of judicial hybrid, which has no name or place among the clear, wellknown, and well-defined principles of the law, and introduces confusion and doubt as to what the law really is, and that while the law will not permit lack of form, or failure to accomplish an intent, to work a fraud, that class of cases has nothing to do with this; that the object of the state is not money, but to secure the punishment of crimes and to release the accused from unnecessary rigor of confinement; that how this is to be