, 1881-05-29
FORFEITED BONDS.
Numerous Applications to Have
the Judgments Set Aside.
Judge Hawes Decide that the Court Has
Not the Power.

Judge Hawes was engaged yesterday fn hear
ing motions to set aside judgments recently Gu
tered on bonds In tho Crimiual Court, oil OF
which were sustained by atIidavits. It was
tedious work. and nothing was accomplished be-
yond the filing and reading OF documents
The question involved was whether or not the
Court had the right to set aside defaults and
judgments in bail cases, and the atEidavits wero
BY the parties in interest Some Of them claimed
release on the ground that they had. prior to de-
fuult being taken. arranged with the States AT
torncy for the dismissal of the cases: others
asked relcnse because they had surrendered the
prisoner utter dcfuu:t was taken md be-
fore Judgment bad been entered; others
wanted tu be let oil for tho reason thnt they
bud returned the prisoner after The Judgment:
nnd still Others thought they should be excused
becnusa they had spent time and money In try
ing to got the princlpuls. and had fniicd.
The Court. IN reply to the athdayits. announced
as his position thAt under tue law rs It stood up
to lsG9 surety might surrender his principal In
exoucratlon at amy time before tinnl Judgment
on tho sctre facias. but as tho law now stood he
could OAly surrender his principal tn exoucra-
ton prior to default being cntered on the bond,
except i'll certain cases covered by Sees. 3l0 and
3le Of the Criminal Code. IN u case where the
principal hnd uhsconded, and default wus regtl-
iarly entered upon tho bond, he held that
surety could not be released from liability by
bringing in nnd surreulering his principal either
and that the Court had liz equitable Jurisdiction
III the matter. The provisions OF tile statute rc-
lating to tho discharge OF the surety III cxoncra-
ttOn III certain eases he construed is II lftntN-
in any other way. When Il surety executed a
bond, he regarded him us having
ENTERED 1Sro \ COVENANT
With tho people of the State that if the principal
did not appear ut the time required to answer
the charge he would pay tho amount Of the
bond. When default was entered OH the bond.
IL debt OF record, and he quoted, in
support Of bis position. Judge Walker in
"eesa vs.. The People. who said: when tho
uefendlnt IND tho security entered iuru the
reco::nizHnce they acknowledged on the record
OF the court that they were indebted to tho peo-
pie III the sum Of 900 the amount Of the bond,
nnd when tho forfeiture took place 1t thereby
becAnlc an absolute Judgment ng.sinst tho de-
PENDANTS" From this he went on to sny that,
although the statute required that scire fAcias
should issue after dcluult, and before final
judgment, it did not require thnt personal sery
icc should be had On either the principal or
surerics, or thut any actual notice should be
given them before the entry of Judgment The
surety wAs bound to see to 1t that his principal
was present when called and If he allowed
his to 70 by default, he did SO at his peril.
Tho surety way the jaier Of tho principal and
must produce him when he WIS wanted for trinl,
nnd the Court had no common law jurisdiction
to relieve against tho penalty of bond. 1t
common law, By the forfeiture tho debt became
absolute and courts could not relieve until tho
power was given by statute OF George, 8 cl.
10, which statute had never been adopted In
this State.
TIE POSITION TAKEN
by Judge Hnwes was u complete surprise to the
attorneys and they expressed their surprise BY
calling his attention to the fact that it had
been tho custom in the past to set
aside judgments for the reasons given, and
contended that to change tho rule would bc
hardship. He replied that be hud looked up the
law pretty thoroughly. and had been unable to
find anything to Justify tho rule or custom re-
ferred to. In Some OF the cases equity would
seem TO demand that tho bondsmcn should be
released. and If he had any discretion in the
matter ho would be inclined to rcicuse them,
but tho law wns plain and would hive to be
given precedence. lie WIS open to conviction,
however, and might be wrong In his conclusions,
yet he did not think be WIS. He would be glad
to hear the arguments of attorneys on tho sub
jcct, nevertheless, and to examine any author
titles they might present. But they were not
rendy with their law points, and, by
agreement, the whole question went
over until Thursday, when it will be ug:1in
opened up, though it may be considered to have
been already substantially settled.
ln the utlitlavits presented one fact came out
which is mol generally KNOWN, aud may prove of
great interest to Mayor Harrison Wherever 1t
was claimed thut money had been spent In try
in. to apprcheud prisoners it appeared that tho
city detectives had been employed Another
point appeared also, which has wider interest,
md exposes what is growing to be a great abuse
in connection with apprchending prisoners: 1t
appeared that wherever q bondsman had de-
lyercd his principal to the custody Of tho Sheriff
1t had been done upon requisttfou and at the
expense OF the State.