The Montgomery advertiser., 1909-08-31

. was indicted by grand jury of Pickens County for mtsdemeanor and Gray became his surety as bail on bond giv- TOT shs ess so ed in Hale County, more than fifty | ems.
 Late one afternoon Gray ascertained that Strickland intended to forfeit his bond and leave on the train that night Tor parts unknown, Gray immediately proceeded to take physical custody of sheri of Haie ans county RHysS to take I n Rim so Pickens County sand surrender him to the Sherinf of Pfckens County which was done, 1t was. impossible to com municate with Pfekens County. Strick- land sued Gray for false imprisonment. The trial court held and charged the jury aifirmativelys that plaintiff was entitled to recover upon the ground into custody his principal except upon a copy of the ban bond certified to by the Clerk of the Court to which the defendant was supposed to appear.
 The supreines Court of Alabama af- n@sa the ns 5Sn this a ds dscison 'Dp pose to review
 That I may make no misstatement I Court in I'll The os s.ass sas oeiat Of aaSs iaySised
 Judicial Department. the Supreme Court of Alabama, November term, a190S-09.: End Div. 376.
 Appeal from Hale circuit Court. ANDERSON, J.
 The Judgment. .in this case having been rendered before the Code of 1907 year instead of six months within which to take his appeal. Howell Co. vs. Foy, Henderson Co., in MS.) The motion to dismiss the appeal is over
 Under the common law the sureties upon a defendants bail had the. un- questioned right to arrest him at pleas ure and surrender him Into the hands of the lay, and this could be done Am. and Eng. Ency.. Law. 7os; Bear den vs. State, ss Ala, 21; State vs. Crosby. 1I4 Ala. II; Cain vs. State, 55 Ala ssdt,on l5o Hawk sss, State s4 Anas AS 4ss 1907 provides for the discharge of the sureties'5 by surrender of the principal and also provides for the arrest of the defendant upon cer- fore, under the. statute. the sureties have the right. to, procure their dis charge by suIrendering the principal at any time before default just as they had under the co mon law, the only change being that the arrest must be made upon a certified copy of the bond. The statute does not give any additional right sor powers but really qualities the common law right of ar rest, and this method ns prescribed by statute must be exclusive. It gives no additional rights or powers but really be said to be in aid or cumulative to the common law, in this particular. and to give it any meaning or operation whatever, it must be construed as con- fining the right of arrest. by the sure ties. in the manner therein required. To hold otherwiye would render the statute meaningless as to the require ment in making arrests, and in effect stultify the lawsmakers. (David vs. Levy and Son. T 19 Ala, 241.)
 iterate the comn@p law, as to the sure ties right to aS&st the principal and did not attempt No construe the stat ute. in so far as 4t' relates to the point with the right fahe sureties to a dis charge and not the way in which they. could arrest the principal.
 We can readily conceive of instances where bondsmen should have the right to arrest a principal who is in the act of absconding or fleeing and who will be gone before they can obtain the cer- tified copy. but this oversight In the dress itself to the lawmakers. 1t is sufficient for us to say. that the stat ute as it now reads precludes any mode therein prescribed. Of course. exigon- cies could arise" sug gesting an arrest before a certified copy of the bond can be procured but ,1his would tend only to mitigate rather than justify, and which rule seems to have been follow ed by the trial court in the rulings up- on the evidence and charges.
 The briefs ofsappellant were also as In the Supreme Court of Alabama. J. E. Gray, Appellant. vs. James L. AppeaI from fine scsircuit Court oF Hale
 County, Alabama.
 Brief and argutnent of Mcqueen and
 Hawkins, attorneys forAappellant.
 There Is no controversy As to the facts that StrfSkland was under inc dictment in the Circuit Court of Pick ems County Ala, and that appellant, J. E. Gray. and sa1, others. others. were were his sureties troversy that these sureties, for the purpose of generating themselves from further liability or said bail, arrested iivered to the Shefifr of Pickens Coun- ty. at Carrollton. Ala.
 The controversy arises out of the 6353 of the Criminal Code. The trial court held that. the sureties of principal in a bail bond had no au- thority to arrest and surrender their principal. except1"upon a certified copy of the bond. There can be no ques- tion that the principle of law Is plain ly presented, and there can be no ques- tion that the court conducted the whole upon the bail bond were guilty of trespass and false imprisonment and that plaintiff was entitled to recover, because of his arrest by the sureties. without the suEeties having a certified copy of the bond We presume for the first time in the judicial history of the State the law has been so con- strued. Prior kg the adoption of the Code of 1852. the common law prevail ed, and since the"adoption of the Code of 1852 the statute law has remained unchanged. In the Code of 1852 there were two sections covering this point Sections 36S5 and 36S6, which subse- quently were changed into one. The clearly emphasizes the intention. Bail Is defined by Blackstone as "a delivery or bailment of the person to his sure ties, upon their giving (together with himselD sufficient surety for his ap- pearance; he being supposed to con tinue in their friendly custody, instead of going to goaf." The principal when released oh bail. is in the custody of his bail, and this custody continues to all time. and. extends to all places debtor to the executive officer of the law, or unless deferred by his arrest for some crime or misdemeanor :" (Kennedy vs. Rice. 1 Ala. IA: Reavis' deem 1t unnecesaAry to further cite the older decisions, under the common law. All of our decisions, since the adoption of the Code of 1852. have uniformly held. and applfsd to the. common law rule. as to the right of surety as against his principal in a bail bond. The practice of~the nisi prius. or trial courts, has been. universal and in har- mony with each other. and the decis- Ions of our Supreme Cout, heretofore, nd h n n fha nj