BkáNNON, Judge:
Sutton was under charge of felony. He gave a recognizance to answer the charge. Carr acknowledged the-recognizance as bail for Sutton. Carr took from Sutton, Davis and others a bond of indemnity to indemnify Carr against loss by reason of such recognizance. Sutton failed to appear. An execution was awarded by the circuit court, against Carr alone upon said recognizance. Carr brought, this chancery suit against Davis, upon said indemnity bond, to set aside a conveyance of real estate by Davis as made to-defraud creditors, among them Carr. The circuit court, dismissed the bill on demurrer.
The question is, Is the bond of indemnity valid so as to-create an enforceable demand in favor of Carr? It is said that the bond is void as against public policy in this — that, it tends to make the bail less watchful to prevent the-escape of the accused from trial than he would be, if not indemnified; that if not indemnified, the bail would keep strict watch on the accused, ' and on suspicion of escape, to save himself from loss, would arrest the accused and return him to prison to stand trial;, but being indemnified, he does not care. The authorities, are divided upon the question. None are binding upon us. No West Virginia or Virginia case sets the rule for us. We must choose between conflict among cases not binding us, and adopt the rule we think most reasonable and useful. Force there is, we must say, in the argument above stated that, indemnity tends to make the secured bail indifferent; but that rule would make it sometimes out of the power of the- [524]*524• accused, innocent or guilty, to give bail, and require him to .■languish, perhaps die, in prison. It is settled, it seems, that when the bail pays a recognizance the law does not imply • a promise by the accused to re-imburse the bail. Otherwise in South Carolina. Reynolds v. Harrol, 2 Strobh. 81. The books say that this is because there is no debt. Sometimes, often indeed, the very purpose on the part of prisoner and bail in seeking bail-.is to give the prisoner chance to escape. If the law would raise a promise by the accused to repay the bail it would do so in all cases, as well where there was such'in tent to secure bail to enable escape, as where there was not. Thus the law would aid the bad purpose to the defeat of public justice. So with subroga- ■ tion. It does by no means follow from the fact that the law raises no promises to pay, that neither will it allow an express contract of indemnity; for in case of an express contract, if such corrupt purpose were proven, it would avoid the contract. It is also settled that though a criminal re- ■ cognizance is a lien for the state on land, yet the bail suretjr cannot be substituted to the lien, and this for like reasons against raising an implied promise of repayment to the bail. But though there is no such implied promise to sustain an action by the bail against the principal in the recognizance, and no subrogation in equity, to the lien, can the • accused make an express contract by bond, deed of trust, •or oral promise to indemnify? This is denied in 3 Amer. & Eng. Ency. L. 684, and 16 Id. 172. In Simpson v. Roberts, 35 Ga. 180, it is held that a mortgage indemnity by the accused is valid. In U. S. v. Ryder, 110 U. S. 729, the syllabus states that “Without an express contract of indemnity a surety on a recognizance for the appearance of a person charged with committing a criminal offence against the laws of the United States, cannot maintain an action against the principal to recover any sums he may have been obliged to pay by reason of forfeiture of the principal, and he is not entitled to be subrogated to the rights •of the United States, and to enjoy the benefit of the gov•ernment priority.” It is true, this precise question was not involved, but it was a question of subrogation. The court held that there is no implied promise or subrogation, but «the syllabus imports that there may be an express contract [525]*525to indemnify. The opinion clearly imports this. It refers. approvingly to the Georgia case, and says that it accords with the English case of Chipps v. Hartnoll holding an-express contract good. In Maloney v. Nelson, 144 N. Y. 182, was such a mortgage of indemnity. The syllabus says:“It seems that such a contract of indemnity is not void as-against public policy.” The opinion by Peckham, now Mr.. Justice Peckham, says: “ This leaves it unnecessary to consider the other defenses set up in the answer of the defendant Nelson, although we must say that the claim that the defendant’s contract was void as against public policy, does not impress us as being a good defense, at least in this state.” In Maloney v. Nelson. 158 N. Y. 351, is a point, in the syllabus reading thus: “ Indemnity bail in a criminal case is not contrary to the public policy of this State; and-the fact that a bond and mortgage were given to indemnify bail does not render them void.” The opinion refers to the claim by some that such a contract is void, and quotes with-, approval what Judge Peckham had said, above quoted, and went on to disapprove the claim that such a contract is void.. When that case was in the Appellate Division, the court said that “ in view of the fact that contracts for the indemnity of sureties upon bail bonds have been frequently enforced in the courts, the fact that their validity has not been successfully attacked is of itself strong evidence that they have been presumed to be legal. In fact there is no case holding that a. contract made by a third party to indemnify a surety upon a recognizance is illegal, but all such contracts have been, sustained. The only case in which there has been a suggestion that such contracts are invalid is where they have been made by the principal himself. It is not perceived that there is any valid distinction in principle between a contract made by the accused and one made by somebody else for his benefit, but, nevertheless, that distinction seems to exist in the books, and to result in contracts on the one hand being held. valid, and on the other hand being disaproved.” Maloney v. Nelson, 12 Appell. Division, p. 548, It is suggested that, these New York cases are based on statute allowing an accused to deposit money instead of recognizance. How does, that affect the question? Where that is the case there is no-[526]*526•surety to be made careless. How does that change the question of public policy in case there is a surety?
The books say that whilst an indemnitjr given by an accused is bad, a friend may indemnifj'' the bail. 16 Am. & Eng. Ency. L. 172. It is not easy to see why the bail is uot made careless as well where the friend indemnifies as where the accused does. If such be law, this would not relieve Davis. This suit is against Davis. Does it make any differ-ence that Sutton signed the bond? If Davis had given a bond, Sutton not joining, it would be binding according to the rule or exception just stated.
I shall not review conflicting authorities. Judge Miller’s dissent will well obviate that labor. I will remark, as to U. S. v. Simmons, 47 Fed. 575, that the court had before it the question whether it would accept as surety a person who had taken indemnity. That was a matter within the court’s discretion.
The law allows bail.
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BkáNNON, Judge:
Sutton was under charge of felony. He gave a recognizance to answer the charge. Carr acknowledged the-recognizance as bail for Sutton. Carr took from Sutton, Davis and others a bond of indemnity to indemnify Carr against loss by reason of such recognizance. Sutton failed to appear. An execution was awarded by the circuit court, against Carr alone upon said recognizance. Carr brought, this chancery suit against Davis, upon said indemnity bond, to set aside a conveyance of real estate by Davis as made to-defraud creditors, among them Carr. The circuit court, dismissed the bill on demurrer.
The question is, Is the bond of indemnity valid so as to-create an enforceable demand in favor of Carr? It is said that the bond is void as against public policy in this — that, it tends to make the bail less watchful to prevent the-escape of the accused from trial than he would be, if not indemnified; that if not indemnified, the bail would keep strict watch on the accused, ' and on suspicion of escape, to save himself from loss, would arrest the accused and return him to prison to stand trial;, but being indemnified, he does not care. The authorities, are divided upon the question. None are binding upon us. No West Virginia or Virginia case sets the rule for us. We must choose between conflict among cases not binding us, and adopt the rule we think most reasonable and useful. Force there is, we must say, in the argument above stated that, indemnity tends to make the secured bail indifferent; but that rule would make it sometimes out of the power of the- [524]*524• accused, innocent or guilty, to give bail, and require him to .■languish, perhaps die, in prison. It is settled, it seems, that when the bail pays a recognizance the law does not imply • a promise by the accused to re-imburse the bail. Otherwise in South Carolina. Reynolds v. Harrol, 2 Strobh. 81. The books say that this is because there is no debt. Sometimes, often indeed, the very purpose on the part of prisoner and bail in seeking bail-.is to give the prisoner chance to escape. If the law would raise a promise by the accused to repay the bail it would do so in all cases, as well where there was such'in tent to secure bail to enable escape, as where there was not. Thus the law would aid the bad purpose to the defeat of public justice. So with subroga- ■ tion. It does by no means follow from the fact that the law raises no promises to pay, that neither will it allow an express contract of indemnity; for in case of an express contract, if such corrupt purpose were proven, it would avoid the contract. It is also settled that though a criminal re- ■ cognizance is a lien for the state on land, yet the bail suretjr cannot be substituted to the lien, and this for like reasons against raising an implied promise of repayment to the bail. But though there is no such implied promise to sustain an action by the bail against the principal in the recognizance, and no subrogation in equity, to the lien, can the • accused make an express contract by bond, deed of trust, •or oral promise to indemnify? This is denied in 3 Amer. & Eng. Ency. L. 684, and 16 Id. 172. In Simpson v. Roberts, 35 Ga. 180, it is held that a mortgage indemnity by the accused is valid. In U. S. v. Ryder, 110 U. S. 729, the syllabus states that “Without an express contract of indemnity a surety on a recognizance for the appearance of a person charged with committing a criminal offence against the laws of the United States, cannot maintain an action against the principal to recover any sums he may have been obliged to pay by reason of forfeiture of the principal, and he is not entitled to be subrogated to the rights •of the United States, and to enjoy the benefit of the gov•ernment priority.” It is true, this precise question was not involved, but it was a question of subrogation. The court held that there is no implied promise or subrogation, but «the syllabus imports that there may be an express contract [525]*525to indemnify. The opinion clearly imports this. It refers. approvingly to the Georgia case, and says that it accords with the English case of Chipps v. Hartnoll holding an-express contract good. In Maloney v. Nelson, 144 N. Y. 182, was such a mortgage of indemnity. The syllabus says:“It seems that such a contract of indemnity is not void as-against public policy.” The opinion by Peckham, now Mr.. Justice Peckham, says: “ This leaves it unnecessary to consider the other defenses set up in the answer of the defendant Nelson, although we must say that the claim that the defendant’s contract was void as against public policy, does not impress us as being a good defense, at least in this state.” In Maloney v. Nelson. 158 N. Y. 351, is a point, in the syllabus reading thus: “ Indemnity bail in a criminal case is not contrary to the public policy of this State; and-the fact that a bond and mortgage were given to indemnify bail does not render them void.” The opinion refers to the claim by some that such a contract is void, and quotes with-, approval what Judge Peckham had said, above quoted, and went on to disapprove the claim that such a contract is void.. When that case was in the Appellate Division, the court said that “ in view of the fact that contracts for the indemnity of sureties upon bail bonds have been frequently enforced in the courts, the fact that their validity has not been successfully attacked is of itself strong evidence that they have been presumed to be legal. In fact there is no case holding that a. contract made by a third party to indemnify a surety upon a recognizance is illegal, but all such contracts have been, sustained. The only case in which there has been a suggestion that such contracts are invalid is where they have been made by the principal himself. It is not perceived that there is any valid distinction in principle between a contract made by the accused and one made by somebody else for his benefit, but, nevertheless, that distinction seems to exist in the books, and to result in contracts on the one hand being held. valid, and on the other hand being disaproved.” Maloney v. Nelson, 12 Appell. Division, p. 548, It is suggested that, these New York cases are based on statute allowing an accused to deposit money instead of recognizance. How does, that affect the question? Where that is the case there is no-[526]*526•surety to be made careless. How does that change the question of public policy in case there is a surety?
The books say that whilst an indemnitjr given by an accused is bad, a friend may indemnifj'' the bail. 16 Am. & Eng. Ency. L. 172. It is not easy to see why the bail is uot made careless as well where the friend indemnifies as where the accused does. If such be law, this would not relieve Davis. This suit is against Davis. Does it make any differ-ence that Sutton signed the bond? If Davis had given a bond, Sutton not joining, it would be binding according to the rule or exception just stated.
I shall not review conflicting authorities. Judge Miller’s dissent will well obviate that labor. I will remark, as to U. S. v. Simmons, 47 Fed. 575, that the court had before it the question whether it would accept as surety a person who had taken indemnity. That was a matter within the court’s discretion.
The law allows bail. We may say that the law favors bail as a relief from prison in cases where bail is grantable, and it would tend to defeat this merciful provision of law, if we should adopt the harsh rule that a man, perhaps, innocent, ■cannot use his property to indemnify his friend to relieve him from prison bars. We do not see that the matter is so far against public policy as to impel us to adopt so severe a rule. Pingree on Suretyship, section 416 says: “ In view of the fact that contracts for the indemnity of sureties upon bail bonds in criminal cases have been frequently enforced in the courts, it is strong evidence that they have been presumed, by the bar and bench, to be legal.’’ So far as we know the understanding of our state bar accords with this view. We think such indemnity contracts are often made in West Virginia.
Is it seriously suggested that Carr cannot sue in equity before payment of the recognizance debt by him? The bond of indemnity is a contract liability, which would support such suit. But there is the award of execution against Carr on the recognizance. That fixes a debt and liability. In case of a bond to indemnify that judgment is conclusive of liability and binding on Davis. See cases as to effect of judgment upon indemnitor or in a bond of indemnity 4o indemnify against a judgment against indemnitee [527]*527in State v. Abbott, (61 S. E. 369,) 63 W. Va. 189. This bond was to indemnify Carr against a judgment •or award of execution on the recognizance. It could have no other meaning, and in such case the cases say that the judgment or award of execution fixes the debt. State v. Nutter, 44 W. Va. 388; 7 Rob. Prac. 150; 22 Am. St. R. 203. “A bond to save harmless against judgment is broken the moment a judgment is.recorded against the •obligee.” 16 Am. & Eng. Ency. L. 177. Even though by default. Payment not necessary. 4 Am. & Eng. Ency. E., bottom p. 695. Having thus a demand Carr can go into equity to set aside a fraudulent conveyance. Our fraudulent conveyance statute, Code, chapter 74, section 9, says that any one is a “creditor” under it who, but for the bad deed, would have right to subject the property. The statute “ embraces all who have a valid cause of action.” 1 Moore, Fraudulent Conveyances, p. 198. “Under this statute any creditor at large of the fraudulent debtor, without respect to the form or character of the debt, may maintain a suit to set aside a conve,yance as fraudulent as to him, even though the claim be an unliquidated one founded upon no certainty as to the amount of the damages claimed, for instance, damages from a breach of promise to marry.” Hogg’s Eq. Princ., sec. 183. We find in 20 Cyc. 421, this: * ‘ Existing creditors are, as the words imply, persons having subsisting obligations against the debtor at the time the fraudulent alienation was made or the secret trust created, although their claims may not have matured or been reduced to judgment until after such conveyance. A contingent liability is as fully protected against fraudulent and voluntary conveyances as a claim certain and absolute, and whoever has a claim or demand arising out of a pre-ex-isting contract, although it may be contingent, is a creditor whose rights are effected by such conveyances and can avoid them when the contingency happens upon which the claim depends.” “If A. gives a mortgage to C. to indemnify C. against his endorsement for A. a bill of quia timet may be brought by C. against A’s. representatives, for a decree that they shall pay B. and indemnify C. against his endorsement. ” Gail v. Scott, 4 Call., 402, cited 40 W. Va. 47. A principal undertakes to indemnify his [528]*528surety by payment. So does one who undertakes to indemnify a bail in a recognizance. Both stand alike as to the right to call on the principal or indemnitor to pay to the relief of the principal and indemnitee. It is thoroughly settled that a surety may, before payment, in equity, compel the principal to pay in exoneration. It is believed that the law cited in Neal v. Buffington, 42 W. Va. 827, will verify the above proposition. Such is the general law. 27 Am. & Eng. Ency. L. 475. It is also clear that equity will place a liability where it- ultimately • s.
We reverse the decree, overrule the demurrer, aud remand the case.
Reversed.