Butler v. Foster

14 Ala. 323 | Ala. | 1848

DARGAN, J.

The laws of this State do not permit the circuit judges to clothe the clerks of the circuit courts with authority to admit to bail, in vacation, those who may be imprisoned for alledged crimes; for a judicial officer cannot delegate to another the powers and authority by law intrusted to him. Although the circuit judge could himself have admitted McAlister to bail, he could not authorize the clerk of the circuit court of Monroe to do it. The order that was made at the fall term of the circuit court of Clarke county, authorizing the clerk of the circuit court of Monroe to admit McAlister to bail, on the conditions recited therein, was null and void, and gave the clerk no authority to take the recognizance, or to receive from McAlister the $500, which was one of the conditions upon which he was to be admitted to bail.

The nature of bail, is, that the accused is delivered from the custody of law, into the custody of his bail, who become sponsors for his appearance, to answer the charge for which he was arrested, and although the circuit judges, justices of the peace, sheriffs, and other officers, in the various instances prescribed by law, are authorized to admit to bail, taking bond or recognizances for the appearance of the accused, yet no statute permits any, or either of these officers to receive from the accused a deposit of money, in lieu of bail, or to order him to pay a sum of money into court, as a substitute for bail; and as the circuit court had no authority to make the order, by which the circuit clerk of Monroe received the sum of $500 from McAlister, the money was not received by the clerk in the discharge of any official duty prescribed by law, and consequently neither he nor his securities are liable to the treasurer of Monroe county for it. The money was paid by McAlister to the clerk, under an order that was void, it still belongs to McAlister, and has not become the property of the State, nor of the county of Monroe. The circuit court therefore erred in permitting the record to go to the jury as evidence to charge the clerk and his sureties with this sum.

As this view is decisive of the cause, at least to the extent of the $500 paid by McAlister to the clerk, it is unnecessary to examine the other questions raised by the assignment of errors.

Let the judgment be reversed and the cause remanded.