Commonwealth v. Johnson

57 Mass. 454

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1849
• Status: Published

Opinion

Fletcher, J.

This was an action of assumpsit on a promissory note made by the defendant, dated July 22d, 1846, for $200, payable to William E. Goddard, or order, on demand, and by him indorsed and delivered to the commonwealth’s attorney for the county of Suffolk. The suit was originally brought in the court of common pleas, and comes to this court by exceptions.

[Here the judge repeated the facts as already stated on pages 455 and 456.]

Upon the trial of this action in the court of common pleas, it was maintained, on the part of the defendant, that Goddard, as the surety of Hadley, in a criminal matter, had no right, under the circumstances of this case, to surrender Hadley in order to exonerate himself as surety, and could not therefore arrest or imprison him for that purpose; and that as the release of Hadley by Goddard, when he had no right to retain him in his custody, formed the consideration of the note, the note was without consideration and void, and could not be enforced against the defendant.

In reference to this defence, the court below ruled as follows : [Here the judge stated the ruling of the court of common pleas, as above mentioned on page 457.] To this ruling the plaintiff excepts. But in the opinion of this court the ruling was perfectly correct and unexceptionable.

What may be the rights of a surety in a recognizance in a criminal prosecution, in regard to the custody of the principal, for the purpose of having him in court according to the tenor of the recognizance, so as to prevent a forfeiture, and thus save the surety from liability, the court is not called on in this case to consider. No opinion on that point therefore is expressed.

. In the present case, before the principal took the surety into custody, the former had avoided and failed to comply with his recognizance, and both principal and surety had Been defaulted and the recognizance forfeited of record. It was then manifestly too late for the surety to save his liability by a surrender of the principal. The time for the surrender was past; the record of the forfeiture of the recognizance was made up; and the consequent liability of the surety was fixed. At this stage of the proceedings, there is no provision of law, by which the surety, as a matter of right, can discharge himself from liability by a surrender of the principal, though the court may have power to receive a surrender, and to remit the penalty in whole or in part; but that is wholly a matter of discretion, and recognizes no right to make a surrender after a forfeiture.

In civil suits, the principal may be surrendered at any time before final judgment against the bail. The statute provides very particularly as to the time and place and manner of the surrender of the principal in civil suits; but its provisions are confined to civil suits, and do not extend to criminal prosecutions. The only legal purpose known to the law, for which the bail may take the principal into custody, is to surrender him, and thus discharge himself from liability as bail. When, therefore, there is no legal right to surrender the principal, there is no legal purpose for which the bail can take and keep him in custody.

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It was contended by the counsel for the commonwealth, that the bail had a right to take the principal, so long as the bail could be benefited by so doing. There is certainly no such principle as this recognized any where in the law; and it would be a very dangerous one, particularly if the bail was allowed to judge, whether or not he would be benefited by taking the principal. The bail might arrest under an expectation that he would be benefited, but be disappointed in the result. Is the principal to be made the subject of these experiments, on the part of the bail ? How long shall the principal be kept in custody, in order to have the question solved, whether or not his confinement will be beneficial to the bail, and at length be discharged on the ground that his arrest and imprisonment were of no use ? In the present case, if Goddard had committed Hadley to jail, as he was about to do, how long might he have kept him there ? There was no legal purpose, which could be accomplished by his arrest and imprisonment. If he could be kept in prison one night., why not for an indefinite period ?

In short, the only purpose known to the law, for which the bail may take the principal, is to surrender him in discharge of himself. There can, therefore, be no right to take the principal, when there is no right to surrender him. Goddard, in the present case, had no right to hold Hadley in custody, and his releasing him formed no consideration for the note in suit; and the note could not have been enforced by Goddard against this defendant. It being a note on demand, the indorsee has no better right than the payee.

Exceptions overruled.

It is now provided, by the act of 1851, c. 92, § 1, that “The bail in criminal cases, at any time before default, may exonerate themselves from further liability, by surrendering their principal to the jailer of the county where the offence of such principal was committed or is punishable.’