Register v. BartonRegister v. Barton
- Reporters:
- Before:
- Thomas
The appellant filed a complaint against the appellee, Philip Bаrton, an attorney, Frank Sexton, individually, and as sheriff of Alachua County, and Capitol Indemnity Insurance Company, alleging that the apрellees had willfully and maliciously and without probable cause or legal authority brought about his arrest, and his retention in jail for sixteеn hours. Such mistreatment, so he charged, damaged his business, his reputation, his body and his mind.
The defendant, Philip Barton, answered the complaint and then moved to strike it as sham in point of fact. The court entered a judgment dismissing the complaint as to him with prejudice, and in this aрpeal we are concerned solely with his conduct in causing appellant to be taken in custody.
The attorney, aсting as attorney in fact for the corporation which had become surety on state and federal criminal appeаrance bonds of the appellant, decided to surrender the appellant in order to relieve the surety of responsibility on the bonds, so he had a deputy sheriff arrest the appellant and place him in jail. After remaining in jail overnight, the appellant obtained a new bond on the state charge. Later the same attorney representing the same corporation caused the appellant‘s continued retention in jail until appellant procured a new bond on the charge in the fеderal court. The second imprisonment lasted approximately three hours.
Neither of these incarcerations was, in thе opinion of the circuit judge, a basis for an action because the surety was “entitled to arrest the principal directly, or through
As we understand the judge‘s order, he felt that compliance with the Florida statute, which we will presently quote, was “immaterial” beсause the surety, having the right to arrest the appellant and to delegate the right to another, could select a deputy shеriff as such agent and the latter could act in that capacity without observing the formality set out in the statute.
The statute providеs that “For the purpose of surrendering the defendant, the surety may arrest him before the forfeiture of the undertaking, or, by written authority indorsed on a certified copy of the undertaking, may empower any peace officer to make arrest, first paying the lawful fees thеrefor.” (Italics supplied.)
We do not know as a matter of fact whether there was compliance with the statute, although the answer of the sheriff, one of the original defendants, who is not a party to this appeal, contains the averment that the аppellee furnished him a copy of the bond properly endorsed.
Inasmuch as the judge held, in effect, that the statute need not have been followed, we will confine our observations to that sole question.
Under the common law the surety could arrest and surrender the principal at any time before default, and he could cause the arrest and surrender to be made by his agent. Was the common-law right then abrogated by the provision that the power to arrest might be delegated to a peace officer in the way specified in the statute? The appellant largely relies upon a decision of the Supreme Court of Alabama, Gray v. Strickland, 163 Ala. 344, 50 So. 152, construing a similar statute and holding that the common-law right of the surety was not extended by the statute but was modified and that, therеfore, the statute now controls.
The Alabama decision is not precisely in point because in the statute of that state it was expressly provided that arrest by the surety himself be made “on a certified copy of the undertaking” and that the surety “may authorizе another person to arrest [the principal] by an indorsement in writing on such copy.”
One under bail is in the vicarious custody of his bondsman whose “dominion is a continuance of the original imprisonment,” and thе principal may be apprehended by his bondsman even under extreme circumstances. Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 21 L.Ed. 287. Also the surety may delegate to аnother person the right to make the arrest. Taylor v. Taintor, supra; Cartee v. State, 162 Miss. 263, 272, 139 So. 618, 620.
From our study of the authorities we conclude that, although at a glance the first pаrt of the Florida statute seems to be a reiteration of the common law and only the second part a modification, the statute when read as a whole is in derogation of the common law. If such an interpretation is not given then the second pоrtion becomes meaningless. If it is held that a surety may appoint anyone, including a peace officer, to apprеhend the principal and that in such case the second part of the statute may be ignored, then we might as well strike that portion.
We are unable to follow the appellee‘s reasoning to a conclusion preserving all the act, especially as a word of great significance is used, “empower“. We conclude that the surety, under whose
In other words, we hold that compliance with the law must be established and that the judgment should be reversed and the cause remanded for the purpose of hearing testimony and considering evidence on this issue. If it appears that the statute was tracked, judgment may be entered for the appellee; if not, the cause should proceed to trial on the other issues.
Reversed.
ROBERTS, C.J., and HOBSON and DREW, JJ., concur.