Slocomb v. Robert

16 La. 173

• Court: Supreme Court of Louisiana
• Decided: October 15, 1840
• Status: Published

Opinion

Marlin J.,

delivered the opinion of the court.

T|us is an action on a bond, taken by the sheriff, from P. W. Robert, against whom a writ of arrest had issued. This suit is brought against the defendant, as surety in said bond, who resisted the claim, on the ground that, before any judgment was obtained against him, he had surrendered the principal to the sheriff. There was judgment in his favor, and the plaintiffs appealed.

The conditions of the bond are, that “ the said P. W. Robert shall appear at the next term of the court, or satisfy any such judgment as may be rendered against him.”

The appellants’ counsel has contended, that the conditions of this bond are very different from those of the bond required by the Code of Practice, which provides for the discharge of the surety, on surrendering the principal. The condition of the latter bond is, “ that the defendant shall not depart the state, or leave the jurisdiction of the court; and that he shall appear to answer to the judgment.” Code of Practice, 230. It 11 i e ... has been urged, that we have orlen said, “in whatsoever manner a man binds himself, he shall remain bound.” This may true in mere conventional obligations, but not in judiJ ° 9 J cial bonds taken by the sheriff from persons in Ins custody, such a case, the sheriff has no power to lake any other bond but that, which he is authorized by law to take. Any clause which is superadded must be rejected, and any that is omitted supplied.

The bond under consideration is evidently a bail bond, taken to secure the appearance of the defendant., and his forthcoming after judgment if a capias be taken against him. The surety, in such a bond, is the friendly keeper of the principal, and may be relieved at any time, by surrendering him ^g sheriffbefore he is fixed by a judgment on the . J ‘ . . . bond; notwithstanding, it provides that the principal debtor sball appear at the next term of the court, or satisfy any judgment which may be rendered against him.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.