Compton v. Williams

27 Ga. 29

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

[1.] If Cross was discharged, the Court was clearly right, in refusing the first motion. lie was discharged. The surrender of Williams, the principal, by Lassiter, Cross’s co-snrety, took Williams out of the custody of Cross. That was sufácient to discharge Cross from the bond. The case was the same in principle, as if Williams had been arrested for a crime, which would have discharged the bail, and, for the reason, that such arrest would take their principal out of their custody.

[2.] If Brpwn was not bound, the Court was also clearly right, in refusing the second motion. And Brown was not bound. By the terms of his contract, he was merely to be bound, in Lassiter’s stead ; that is, was to be bound, in the same manner as that in which Lassiter had been bound. And Lassiter had been bound, only along with Cross. Then, Brown, by the terms of his contract, could only be bound along with Cross. But Cross not being bound, he, Brown, could uot be bound.

On these two motions, then, we think that the Court was right.

If Williams, the principal, was still liable on the bond, the Court was wrong in overruling the third motion; for he was in Court, and that was a compliance with the condition of the bond, and the motion was the one called for by the state of the case — called for by the absence of preparation, on the part of Williams, to entitle himself to take the oath. The condition of a ca. sa. bond, is, not, that the defendant shall appear and take the oath-, but, that he shall appear and “ abide by such proceedings as may be had by the Court, in relation to his, her or their taking the benefit”' of the Act. Consequently, if he appears, and abides by the proceeding that may be had in his case, whatever that may be, whether an order of discharge, or an order of imprisonment, he has complied with the condition of his bond. Williams, then, being in Court, he had performed the condition of his bond, and the motion being the regular one, the state of the case considered, it should have been granted, unless something had happened by which, Williams had been discharged from the bond. This seems manifest.

Now had any thing happened to discharge Williams from (he bond, or to reader it null, as to him? Nothing, as far as we can see. Things had happened by which, his sureties were discharged; but these things did not extend to him, and his liability. Tho discharge of the principal, is the discharge of tho surety; but the discharge of the surety, is not the discharge of the principal. Suppose Williams had given the notices, &c., to his creditors — had done all that the law required him to do, would he not have been entitled to the benefit of the Act, notwithstanding the fact, that his sureties ■were discharged ? Can there be a doubt of it?

True, tho Sheriff discharged him out of his custody, when. Brown stipulated to take Lassiter’s place. But what of that? Could the Sheriff discharge him from his bond ? The Sheriff had no power to do such a thing. Besides, that was not the intention of the Act, hut was just the reverse; the intention was, that Williams should comply with the condition of the bond — was, that the bond should still be binding on him* Tho act may have been one by which, the Sheriff himself became subject to a liability, but we do not see how it could be one, to discharge Williams from his liability.

[3.] We think, then, that, as nothing had happened to discharge Williams from the bond, and as he was in Court, the Court should have granted this third motion — the motion to order Williams into custody.

Judgment reversed.

McDonald J. absent.