The Montgomery advertiser., 1909-08-31
ReUieD of Court Decision And
 Some Needed Legislation
BY THOMAS w. COLEMAN.

right. at any time to arrest and sur
 render him again. to the custody O.
 the law; In discharge of their oblisa
 his jailers. Without process espec
 ially addressed to them in person, ol
 by agent. they could pursue and tak'
 him in his own house. though vtb Sabbath, or follow him into anothei State. They were said tn have tn. principal always upon the string ana they may pull 1t when they p.ease te This right of bail is of such impor tance. that 1t has been introduced in. to. affirmed and regulated by. oui Statutes" Tn this case it Is distinct and arrest. without process. by becom' ing bail, it Is declared. the surety "ac. quired custody" of the principal. And We submit that this has been the law from time immemorial. =,
 In Hawk ct als. ys. the State. 8. Ala. 460-466-46s. Judge Sommerviile lays down the principle that the prin- cipal Is in the continued" custody ol his sureties. until duly discharged "rhe theory of the law is. (not wasl that when bail is given. the principal is at once placed in the custody of his sureties such custody being really continuance of his imprisonment. The
 
 any time to arrest their principal a. his jai .ors, whenever they see fit, for the purpose of delivering him into the custody of the sheriff. or other lay. the attention of the Court to the use and significance of the word "contin- ued.' as here used. While in jail the party charged would be in the custody is continued" in the sureties. :.
 In Bearden vs. the State 89 Ala, Fl 23 Judge Stone defines bail. and the relation that principal in a bail bond said in this case, Bearden supra. that the rights of a surety are (not were) common law rights, "o.der and inde- pendent of our Statute on the sub tect Of course: we know tns. that nass 1uqss thst the Legislature could not change the common law-the meaning Is, that the rights of surety were derived ron the common law. and were not depenu- ent upon the Statute. and necessarily it follows that the common law rights were not abridged. and were not in tended to be abridged by the Statute. The fact is the Statute enlarges thf right of the surety in authorizing him to endorse the bond, and thus empow- CT a sheriff. anywhere, to arrest the principal. The provision in regard to the endorsement of the bond. was ln- tended to serve merely as an indefn- nity to the sheriff, or agent but by no manner of construction can 1t be made to take any common law rights of a citizen, and the above authorities show this abundantly. The dissent or or Judge Mcclellan, In this case, as will be seen. was not in regard to the def milton of bail, or rights of the sure. ties as contained in the opinion or Hale Court, but as to the discharge of the sureties. after conditional judg- ment was rendered against them. Up-
 TY -%sr tsaNH sad I'm A Ho o at bar. the Court was in harmony.
 The next adjudication upon the sub tect to. which the attention of the Court is called. is the case Of the state vs Crosby dit Ala is fnr by the Appellant. and every rule de- cfared in the foregoing eases was re- stated, emphasized and re-affirmed 3ses also 3 Amer; $ 1Sn Eng; ,,Ey Epcyc' os
 It will be seen from these decisions all of which have been made under tho act as it now stands, that all of them laid down and adhered to the com. in the custody of," under the domin- ion of"-"the custody continued''- "the right to surrender at any time" -"pursue and arrest anywhere"-- without process" and that the same are utterly inconsistent with the con- tention that upon the execution of bail such ''contro!." "custody," and "do4 minion." and bail could no longer art rest without certified copy of bail bond. We assert that the liability of the sureties on a bail bond has always been, based upon these- authoritiesg F+
 We. deem it unnecessary to pursue this feature of the case any further and we submit that the authorities are uniform and overwhelming that the sureties had the right 'to continue the custody of the principal" and surren- der him to the Sherin of Pickens county, and that the entire trial of this case. was conducted under a mis- of the law, and contrary to the universal practice in this Court for more than half century.
 Brief on Rehearing.
 J. E. Gray vs. Jas. L. strickland in
 the Supreme Court of Alabama:
 Brief and argument of Thomas W. Coleman and Mcqueen and Hawkins attorneys for Appellant. J. P. Gray, on Judgment rendered on the 22nd day of April, 1909, affirming on appeal, the judgment of the Circuit Court of Hale county, Alabama.
 With profound respect for the judg- ment rendered by our Supreme Court on appeal, in this case, we respectful ly request reconsideration of the principles of law involved in the case and the reasons given for the con- clusion reached by the Court:
 We agree fully with the Court in the statement, That at common law the sureties upon defendants bail bond, had the unquestioned right to arrest him at pleasure, and surrender him into the hands of the law, and this coulQ be done without the issu- ance of process" The authorities cit is respectfully submitted that the word arrest" does not occur in many of the authorities cited. and where it does occur it Is in the sense of a jail the bail. The whole idea is, having the custody. the surety may "surrend- er." The surety is tHe "jailor" of the ball. the custody being a '.contin- uance of the Imprisonment" Process authorities as are cited by the Court t in the judgment of affirmance (Bear- den vs. State, S9 Ala, 21: State vs. Crosby, 114 Ala, II; Cain vs. State 55 Ala, ITO; Hawk vs. State. S4 Ala, The second proposition of the court is. thar since the adoption of the Code of 1852. tsection $685. and 36s6), before the the surety can sur surrender the ball, they of the undertaking. Here we. have the substitution of. the word must" by the court. in place of the word may" lv submit that the change by the court in the phraseology of the statute strikes down the principle. of the law V 3n evarv ana so ms It shfetieS, ret court itself, supra and all rules of construction of statutes affecting the rights of persons derived and held negative words in the statute under consideration. that the arrest of bail cannot be had except upon a certified any words of express limitation in the statutes
 The true rule IS "All statutes are construed in reference to the principle nreaumed that there is an intAntinn to