King v. State, 81 Ala. 92

81 Ala. 92 | Ala. | 1886

STONE, C. J.

— The Circuit Court erred in sustaining the demurrer to the plea in this case. If that plea be true, the sureties, by whom it was interposed, became such on condition that Lindsay, the acting sheriff, would become co-surety with them. Considering this question on demurrer, we are bound to regard and treat the averment as true. If true, it is a defense to the action. — Bibb v. Reid, 3 Ala. 88; Robertson v. Coker, 11 Ala. 466; Fi eman’s Ins. Co. v. McMillan, 29 Ala. 147 ; Guild v. Thomas, 54 Ala. 414; Smith v. Kirkland, MSS.

When this bond was taken, the coroner of Etowah was the acting sheriff. He it was who took and approved the bail bond. It is, at least, a bad practice for any officer of the law to become surety on a bond it is his official duty to approve. If there was any agreement that he should become surety, he must have made that agreement, and hence had knowledge it had been made. If the bond is correctly copied in the record, there was a time when his name was signed to the bond. He appears as the third in the order of the signatures. Three names — three of the four who pleaded in this case — are signed below, and presumably after his signature, as the same appears to us. If, when those three signed, his name, unerased, appeared as one of the sureties, it is difficult to reconcile its subsequent erasure with good faith, on his part, towards them as his co-sureties; and, as an official act, it was certainly reprehensible.

Another reflection. Having Poe, the prisoner, in custody for a bailable offense, it was bis duty to keep him until he executed a good and sufficient bail bond, for his appearance to answer to the charge preferred against him. If he gave him his liberty without a bond which reasonably appeared to be valid and sufficient, and if Poe failed to make his appearance, it might present a grave inquiry whether he was not guilty of, at least, a negligent escape.

It is not our intention, in what we have said, to pronounce unqualified judgment on the conduct of the officer. We do intend, however, to express unqualified disapprobation of the course pursued, if the averments of the plea are true.

Reversed and remanded.