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done is prescribed, and it cannot be enforced as a common bond in a done by the act of the party himself, proper proceeding for such purpose, or in any mode but the one pointed because that question was not before out by statute; that, if not done it. rightly, and the person is discharged,

III. Estopped. it may be treated as an escape and

Another theory upon which it has the person be reimprisoned; that if

been endeavored to hold liable the the recognizance taken is not a re

sureties on a bail bond taken without cognizance, it is nothing at all, binds

authority is that of estoppel. nobody, and secures to nobody any

Thus, in People v. Cook (1896) 68 new right, and hence it is without consideration or power in any sense,

Ill. App. 202, a bail bond taken with

out authority by a police magistrate, and would have nothing to give it ef

where two justices were required by fect, even at common law.

statute to release a prisoner commitBut a bail bond taken by a sheriff

ted to jail upon a criminal charge, without authority was held good as a

was held void, and the sureties therevoluntary bond, and the sureties thereon held liable, in Colquitt v.

on were held not liable, against the

contention of the people that alBond (1882) 69 Ga. 351. And a recognizance to appear and

though the statute was not followed,

and only one justice acted, the bailanswer to a criminal charge, taken

bond was entered into by the sureties without authority because the one

voluntarily, and was, therefore, good taking it was not a magistrate, and,

and that they should be estopped therefore, not technically a recog

from denying its validity. nizance, is in fact a bail bond taken

And a bail bond taken by a magisunder the common and statute law of

trate without authority because of England, which entitles a party ar

lack of jurisdiction over the defendrested to give bond with security for

ant, who had committed a crime in his appearance, and as such is good

another state, on account of the abas a contract between the sureties

sence of a charge against the defendand the state, and they are liable

ant in such other state, is void, and thereon. Dennard v. State (1847) 2 Ga. 137.

is not enforceable against the sure

ties, who are not estopped to deny the In sustaining a demurrer to the

jurisdiction of the magistrate becomplaint in an action upon a bail bond taken by a justice of the peace

cause they voluntarily executed the

bond. State v. Hufford (1869) 28 without authority, because taken for

Iowa, 391. the appearance of the prisoner for another than the first day of the

A bail bond taken by a sheriff withterm, the court said in Hostetter v.

out authority, because taken out of

his county, is void, and the sureties Com. (1851) 12 B. Mon. (Ky.) 1, that it did not express the opinion that

are not estopped from setting up

such want of authority as a defense the bond might not be considered ob

to an action on the bond. Harris v. ligatory as a common-law bond, but

Simpson (1823) 4 Litt. (Ky.) 165, 14 that it would be time enough to de

Am. Dec. 101. cide such question when it arose.

And in United States v. Rocafort And in Schneider v. Com. (1861) 3 (1901) 1 Porto Rico Fed. Rep. 318, Met. (Ky.) 409, holding that a bail holding that a bail bond taken by a bond taken by a sheriff without au- court commissioner without authorthority, because taken after he had ity, for appearance before a court arrested the accused a second time without jurisdiction to try the ofupon his surrender by his former fense, is void, and that the sureties bail, is not good as a statutory bail are, therefore, not liable, the court bond, and that the sureties are, caid that it was true that the giving therefore, not liable, the court said of the bond secured the release of the that it expressed no opinion as to defendant, but that he was entitled to whether or not such bond could be it without giving any bond, because the officer who took it had no authori- statute only applied to irregularities ty to hold or try him, and that there of form, omission of recital, condiwas no consent, and had it been tion of undertaking therein, or neggiven it would not have been binding lect of a justice or a clerk to note of upon the parties, and that the bond record the default of any principal or partook little of the nature of a con- surety at the time or term when such tract, and in any event there was default should happen, etc., and that nothing of the kind in this instance, the fixing of the amount of bail and as there was no adequate or legal the taking of a bond by some person consideration, and the doctrine of es- not authorized to do so, as in the case toppel could not properly be invoked. at bar, was not among the irregulari

The sureties on a bail bond taken ties enumerated in such statutory proby a municipal court in a case in vision, nor, indeed, could such be rewhich it has no power to take bail garded as merely an irregularity, and are not estopped from question- that the bond would have been just ing the power of the court to act as binding if taken by some private upon the subject-matter involved, by person, and that it would not be conreason of the fact that they took ad- tended that such a bond would have vantage of the exercise of such pow- any validity whatever. er, and they are not liable upon the The invalidity of a bail bond taken bond. STATE V. RICCIARDI (reported without authority by the court in a herewith) ante, 609.

civil action, because the court had no In State v. Crosswhite (1906) 195 jurisdiction of the subject-matter of Mo. 1, 93 S. W. 247, holding that a such action, can be set up by the bail bond taken in a felony case, by a surety as a defense to an action upsheriff without authority, because he, on the bond, and, the bond being void, instead of the court, fixed the amount the surety is not liable. Stevens v. of the bail, is void, and that the sure- Hutchins (1921) 95 Vt. 361, 115 Atl. ties are, therefore, not liable, the 229. state contended that the sureties But though a bail bond, because could not be heard to complain of any taken before a magistrate in a differtechnical error in the giving of the ent county from that in which the bail bond, by reason of the statutory crime was committed, is taken without provision that no proceeding upon a authority, where the defendant did recognizance shall be defeated, nor not raise such question at the time the shall judgment thereon be prevented, bond was taken, but voluntarily gave on account of any defect of form, it, and thereby was released from cusomission of recital, condition of un- tody, the bond is good as against him dertaking therein, neglect of the and his sureties. Jones v. Gordon justice or clerk to note or record the (1888) 82 Ga. 570, 9 S. E. 782. default of any principal or surety at And a bail bond taken without authe time or term when such default thority in violation of the statutory shall happen, or of any other irregu- provision that no officer authorized to larities, so that it shall be made to take bail shall take as bail an attorappear from the whole record or pro- ney, sheriff, or justice of the peace, ceeding that the defendant was le- but which does not declare such bail gally in custody, charged with a bond void, is enforceable against the criminal offense, that he was dis- sureties, since, if such persons, by charged therefrom by reason of the becoming bail, procure

the disgiving of the recognizance, and that it charge of a person accused of crime, can be ascertained from the recog- they will not be heard to say that nizance that the sureties undertook they are not bound because they viothat the defendant should appear be- lated the law. Holandsworth v. Com. fore a court or magistrate, at a term (1876) 11 Bush (Ky.) 617. or time specified, for trial. The court In Adee V. Adee (1878) 16 Hun said that it was plain from the lan- (N. Y.) 46, where, in an action for guage used in such provision that the limited divorce, the sheriff, after arresting defendant's husband, took no jurisdiction of the case, is withwithout authority the bail bond with out any binding force. Solomon v. one surety, when the statute required People (1853) 15 Ill. 291. The court two, at the request of the surety and said that the defendant, because of with the approval of the plaintiff's at- the lack of jurisdiction of the committorney, it was held that there was no ting officer, was illegally restrained oppression or corrupt use of official of his liberty, and that the bail bond power which would avoid the bond, subsequently taken by the court that as between the plaintiff and the was an involuntary obligation taken, defendant or his surety any kind of without authority of law, and could bond or agreement would suffice, if not be enforced against the sureties, the same was good at common law, and a judgment against the sureties and that the surety, having, with full was reversed. knowledge of the facts, in the ab- And in Com. v. Otis (1819) 16 sence of fraud, corruption, or deceit, Mass. 198, the court upheld a demurvoluntarily executed the bond, and rer to a declaration upon a bail bond thereby secured the release of the taken by a justice of the peace withperson arrested, was estopped from out authority from one convicted of setting up the invalidity of the bond. a felony in the supreme court and

And in State v. Cannon (1872) 34 brought back to the state upon the Iowa, 322, holding that a bail bond application of the executive authorfor the appearance of one charged ity, after his escape, before sentence, with a felony before a justice of the

into another state. peace, taken without authority by a A bail bond taken without authorjustice of the peace of another coun- ity by the municipal court, because ty is inoperative as a statutory bond, the offense is one for which it does but that the sureties may be held lia- not have power to take bail, being ble thereon as their voluntarily as

punishable by imprisonment for more sumed obligation, the court said that than twenty years, is a nullity and while the bond was not binding as a the sureties are not liable. STATE v. statutory bond, and the remedies RICCIARDI (reported herewith) ante, thereon which were purely statutory

609. could not be enforced,-as, for in- And in Com. v. Cheney (1810) 6 stance, it did not become a lien upon Mass. 347, a demurrer to a declarathe property of the sureties, as pro

tion to enforce against the accused a vided by statute, there was no legal bail bond taken by a justice of the reason why the sureties should not peace without authority, because the discharge their voluntarily assumed offense was one for which he could obligation, since it was voluntarily not take bail, was sustained, and it executed by them, at the request of was held that the commonwealth the accused and for his benefit, and could take nothing in the action. under it he had been discharged from

A bail bond taken by a county custody, and had derived all the ad- judge without authority, because vantages which he could have had taken after the commencement of the under a bond taken in the manner

first term of the circuit court, is a prescribed by the statute.

nullity and does not render the sure

ties liable upon its forfeiture. BranIV. Bond taken by court or judge. ham v. Com. (1867) 2 Bush (Ky.) 3. A bail bond taken without author- And a bail bond taken by a justice ty because of the absence of jurisdic- of the peace without authority, betion of the court over the person of cause permitting one accused of a the defendant cannot be enforced crime punishable with imprisonment against the sureties. State v. Wenzel for a term exceeding seven years, to (1881) 77 Ind. 428.

be released pending an adjournment And a bail bond taken by a court of the hearing, was held void in State without authority, because the offi- v. Bartlett (1897) 70 Minn. 199, 72 N. eer who committed the defendant had W. 1067, it being therein conceded by the state that the sureties were not v. State (1915) 46 Okla. 487, 149 Pac. liable if the bond was taken without 154: authority.

- by a district court, because it A bail bond taken without authori- had no jurisdiction in criminal matty by justices of the peace in a capi- ters, in State v. Branner (1860) 15 tal offense is void, and the sureties La. Ann. 565; are, therefore, not liable. Re Hopfe

- for

the appearance of one (1913) 22 Can. Crim. Cas. 116, 5 brought before a police judge of a Alberta L. R. 398, 23 West. L. R. 751, 4 city upon the charge of a crime comWest. Week. Rep. 1, 10 D. L. R. 216. In mitted outside of the city, because of this case the sureties were placed in the want of jurisdiction in the police jail by the sheriff because he could not judge to examine the accused and find any property belonging to them commit him to jail in default of bail, to satisfy the bond, and the court in State v. Davis (1881) 26 Kan. 205; said, upon their application for their — by a justice of the peace after discharge, that no liability was im- his jurisdiction of the case had terposed under the bond upon them-.at minated, in Cox v. State (1897) 5 least, no liability which could be en- Kan. App. 539, 47 Pac. 191; forced in such summary manner; but -- by a justice of the peace, bethat perhaps there might be some cause taken in a case in which he had civil liability attaching to the sure- not the power to take bail, in State v ties in an action brought for such Toups (1892) 44 La. Ann. 896; purpose, but that the court expressed - by a justice of a county court, no opinion as to that.

because not authorized to let to bail And special bail in a civil action, be- a person indicted for a bailable ofing taken without authority, because fense, where the indictment is not taken upon the mere filing of an pending in his county, in State v. affidavit, has no force, and does not Nelson (1859) 28 Mo. 13; subject the sureties thereon to liabil- — by a justice of the peace, beity. Thomas v. Mann (1836) 4 Dana cause the accused was charged with a (Ky.) 452.

crime punishable by a term of more In the remaining cases under this than seven years' imprisonment, in subdivision, involving the liability of State v. Hebert (1845) 10 Rob. (La.) sureties on a bail bond, the question 41; State v. Harper (1848) 3 La. discussed was whether the bond was Ann. 598; State V. Hays (1849) 4 taken without authority by the court La. Ann. 59, and State v. Whitaker or judge, it being assumed that, if it (1867) 19 La, Ann. 142; was so taken, the sureties would not - by a single justice of the peace be liable.

in a felony case, in Com. v. Fisher Thus, in Haney v. People (1889) (1866) 2 Duv. (Ky.) 376; Murphy v. 12 Colo. 345, 21 Pac. 38, the court Com. (1875) 11 Bush (Ky.) 217; said-citing authority for the propo- - by a single justice of the peace, sition—that it would assume that a from a person arrested under a cabail bond taken by a court having no pias issued on indictment found in jurisdiction, or by an officer destitute the circuit court, in State v. McGunof legal authority, was void as to negle (1834) 3 Mo. 402; both principal and sureties, and that — by a county judge alone, in Bowsuch facts, when shown by the sure- man v. Com. (1854) 14 B. Mon. (Ky.) ties, constituted a good defense to an 390; action against them for the penalty.

- by a county judge, for the apA bail bond was held void, and the

pearance for examination of a prissureties, therefore, not liable, where oner upon a charge of felony commitit was taken without authority — ted in another county, in Com. v. Sal- by a magistrate or justice of the

yer (1871) 8 Bush (Ky.) 461; peace, because of lack of jurisdiction - by a magistrate, because the over the case, in Com. v. McLane crime was committed in another par(1855) 4 Gray (Mass.) 427; Melton ish, and a statute prohibited him Com. v.

from admitting the accused to bail in an examining court had sent the prissuch case, and required him to com- oner to the superior court for trial, mit him to jail until he was trans- in Hamlett v. Com. (1846) 3 Gratt. ferred to the other parish, in State v. (Va.) 82; Collins (1867) 19 La. Ann. 145;

by a county judge after the case -by a justice of a county court had gone on exceptions to the suother than the county where the in- preme court, in State Treasurer V. dictment was pending, in State v. Seaver (1835) 7 Vt. 480; Ferguson (1872) 50 Mo. 409;

- by the trial court for the pur- by the probate court, after the in- pose of appeal after the conviction of dictment of the accused without first the accused, because he had not yet issuing a writ of habeas corpus for appealed, in State v. Murphy (1897) him, not being the court in which the 23 Nev. 390, 48 Pac. 628; indictment is pending, in State v. - by a justice of the peace, beWatson (1893) 54 Mo. App. 416; cause taken for the prisoner's ap

- by a justice of the peace, be- pearance · upon an adjournment of cause taken after the accused had his examination, in State v. Kruise been committed by another justice, (1867) 32 N..J. L, 313; State v. Jones in State v. Berry (1831) 8 Me. 179; (1888) 100 N. C. 438, 6 S. E. 655;

Canada (1832) 13 Pick. – by a mayor in a felony case, sit(Mass.) 86;

ting as an examining court during -by a police court, because taken the examination, in Com. v. Moore while the prisoner was in the hands (1861) 3 Met. (Ky.) 477; of an officer to be committed accord- - by the examining magistrate, ing to the order of the police court, after the adjournment of his court, in State v. Young (1868) 56 Me. 219; in State v. Russell (1859) 24 Tex.

- by a justice of the peace, be- 505; Moore v. State (1872) 37 Tex. cause he had not acted in the case

133; and was not in any manner connected – by a justice of the peace, from with the examination and commit- one charged as the receiver of stolen ment of the accused, in State v. Ran- goods to the party from whom the dolph (1858) 26 Mo. 213;

goods were stolen to secure to him - by a circuit judge in term time the payment of treble damages given in his chambers, in Com. v. Littell by statute, in Vose v. Deane (1811) 7 (1819) 1 A. K. Marsh, (Ky.) 566;

Mass. 280; -by a judge of the county court

- after conviction and sentence in vacation, when the accused had

for an infamous crime, pending a not been committed to jail for trial,

writ of error in the United States Suin State v. Lamoine (1881) 53 Vt. preme Court by an associate justice

of such court, because taken by the - by a justice of the peace, be

wrong associate justice and pursuant cause requiring the accused to ap

to a rule which the Supreme Court pear before the circuit court on

had no power to make, in United charge of a misdemeanor which the

States v. Hudson (1894) 65 Fed. 68, justice was himself required to try,

appeal dismissed without opinion in in Thomm v. State (1880) 35 Ark.

(1897; U. S.) 41 L. ed. 1178, 17 Sup.

Ct. Rep. 994; 327; Smith v. State (1905) 86 Miss. 315, 38 So. 319;

- by a justice of the supreme - by a justice of

the peace

court in a felony case, in Todd v. throughout the state, because taken

State (1825) 1 Mo. 566; for the appearance of the accused be

— by a justice of the peace, from fore a justice of peace of the county

one charged with homicide, in Com. in which the crime was committed,

v. Loveridge (1814) 11 Mass. 337; and not, as required by statute, be

– by a mayor in a felony case, in fore the court of common pleas, in

Holmes v. State (1876) 44 Tex. 631, State y. Fowler (1854) 28 N. H. 184;

V. Bond taken by officer. - by a justice of the peace after A bail bond executed before an offi

568;

а

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