Matoon v. Eder

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.

This was an action in the Court below upon a bail bond. Several questions are raised by the record which I propose briefly to examine, with no expectation, however, of reconciling the apparent contradictions of the statute, which have hitherto been a stumbling block to the profession, and defied judicial exposition.

The first point is, as to the sufficiency of the affidavit, and whether the bail can take advantage of any informality or defect in it.

An examination satisfies my mind that the affidavit, on which the order of arrest was issued, is sufficient, and this would dispose of the point, were it not desirable that some rule should be established to govern future cases.

Whatever doubt may have heretofore existed in the minds of this Court or the bar, we are satisfied, upon the weight of authority, that this defence cannot be set up by third parties, and not even by the defendant himself after judgment. By putting in bail and neglecting to move to be discharged, he consents to process and waives all irregularities in this respect. 1 East., 81; 6 Taunton, 185; 10 Bingham, 506; 24 Wend., 275; and 19 Wend., 122.

The next question is how and when the bail becomes charged. The obligation of the bond is, that “the defendant shall at all times render himself amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein, or that they will pay to the plaintiff the amount of any judgment that may be recovered in the action.” In ordinary cases, the defendants would only be bound by the conditions of the bond, but the principle is now familiar, that where parties contract in respect to a law, the law itself becomes a part of the contract, and they are bound thereby; Russell v. Elliott, 2 Cal., 245; so that the whole statute must be examined to determine the defendants’ liability.

From the conditions of the bond, it would seem that some final pro[60]cess should issue against the judgment debtor before the bail became finally charged; and in the absence of any other provision, it would probably be necessary that a ca. sa. should issue, and be returned non est inventus, before the bail would be liable; but, while such process seems to be contemplated by the eighty-first section of the statute, the implication is denied or destroyed by the eighty-second and eighty-third sections of the same act, which provide, that unless the debtor is surrendered within ten days after judgment, the bail shall be finally charged.