People v. Eaton
Before: Crockett
Synopsis
Complaint on Becognizance—Name of Accused—Demurrer fob Ambiguity.—Where a complaint on a forfeited recognizance set forth that the name of the accused for whose appearance to answer it was given, and the name by which he was indicted, was Antonio Martini, but that it was given in the recognizance as Antonio Martinez, and that the same person was intended: held, that a demurrer on the ground of ambiguity and uncertainty as to the person accused was properly overruled.
Suit on Becognizance—Variance in Name of Person Accused.—In an action on a recognizance, where it appeared that the accused was named Martini in the indictment and Martinez in the recognizance, and there was testimony that the same person who was held to answer by the name of Martinez was indicted by the name of Martini: held, that a motion for nonsuit on the ground of the variance of names was properly overruled, and that a finding that’the person indicted was identical with the person held to answer, was justified.
Baising of Bail—Liability of Sureties on Becognizance.—It is no defense to an action on a forfeited recognizance, that after it was given the bail was raised, and a new order of arrest issued, without notice to the sureties, and that the ofiieers were so negligent in their proceedings that the accused heard of them and absconded before he could be rearrested.
By the Court, Crockett, J.: The demurrer to the complaint and the defendants’ motion for nonsuit were properly overruled. The complaint, though somewhat inartificially drawn, is substantially good, and states a cause of action. The variance between the name of the accused, as stated in the indictment, and in the recognizance, was sufficiently accounted for to justify the' Court in finding that the person indicted was identical with the person charged before the Justice, and for whose appearance the recognizance was given. Ror did the Court err in refusing to permit the defendants to prove the affirmative matter set up in the answer. If proved, it would have constituted no defense to the action. In substance it amounted only to an averment that after the accused had been released from custody on the recognizance of bail here sued upon, his bail was raised by the Court, and an order for his arrest was issued, hearing of which he absconded, and cannot now be found. The answer, it is true, avers that the officers of the law negligently permitted the accused to hear that the order of arrest was issued, whereby he was afforded an opportunity to escape; and that they willfully concealed from these defendants the fact that such an order had been issued. But if true, this would not exonerate the bail. When higher bail is required, there may, in many cases, be very sufficient reasons why the former bail should not be informed of the fact until after the accused is arrested; and I am not aware of any rule or principle of law which relieves the former bail from liability on the ground that the officer requiring additional bail had conducted himself so [661].negligently as to permit the accused to hear of the fact before his arrest. There would be hut little chance to fix the liability of bail if they could escape on such pretexts as this.
Judgment affirmed.
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