79 Ky. 400 | Ky. Ct. App. | 1881
delivered the opinion op the court.
L. M. Billington being in custody charged with “kukluxing," was admitted to bail in the sum of $300, with appellant as surety in the bond. On failure of the accused! to appear and answer the charge, the bond was forfeited,, and to a rule to show cause why judgment should not go on the forfeiture, appellant responded that he did not sign his name to the bond; that he did not make his mark to the signature appearing thereto, and that he never authorized any one in writing to sign his name to the bond. To this response a demurrer was sustained, and judgment rendered against appellant. It is agreed in the bill of evidence that appellant was examined as to his qualifications as bail, and that, in the presence of the judge who accepted the bond, he directed the attorney for the accused to sign his name to the bond; that the name was signed in. the presence of appellant as directed, and that thereupon, and by reason of the execution and delivery of the bond, the accused was released from lawful custody.
Counsel for appellant insists that no liability attaches by reason of the execution of the bond, because of the failure to comply with section 20 of chapter 22 of General Statutes, which is as follows:
“No person shall be bound as the surety of another, by the act of an agent, unless the authority of the agent is in writing, signed by the principal; or if the principal do not write his name, then by his sign or mark, made in the presence of at least one creditable attesting witness.”
The language of the section seems to be imperative, and without exception, that in all cases of suretyship, in order' that the act of one may bind another as surety, such act
The 85th section of the Criminal Code does not apply in a case like this, where the question is of execution or no execution of the bond. That section applies especially to the construction of the bond when its execution is not denied.
We think the court below erred in sustaining the demurrer to appellant’s answer.
Wherefore, the judgment is reversed, and cause remanded, with directions for further proceedings.