Dick v. Stoker, 12 N.C. 91, 1 Dev. 91 (1826)

Dec. 1826 · Supreme Court of North Carolina

12 N.C. 91, 1 Dev. 91

John Dick v. Allen Stoker, John Culpeper, sen. and Dempsey Honeycut.

From Montgomery.

To arrest and surrender the principal as agent of the bail, requires, at least, a -written authority; but the principal may make a voluntary surrender of himself, without the agency or even knowledge of his bail, and placing himself in the power of the Sheriff, (though at the time under moral coercion,) for the purpose of being detained, is an effectual surrender by the principal to discharge the bail.

This was a sci.fa. against the Defendants, as bail of one Cooper. The Defendants pleaded several pleas, and among them, a surrender by them of their principal to the Sheriff; and on the trial before Daniel Judge, the case turned wholly upon this last plea. In support of it, the Defendants examined John Culpeper the younger, who testified that when the Defendant, Culpeper, became bail for Cooper, the latter deposited with him sundry notes and judgments, as counter security s and the De« fendant being a member of Congress, and about to attend his duties in Washington, gave to the witness, by parol, a general authority to attend to and transact his [,usjness. At March term 1825, of Montgomery Superior Court, the Defendant being still absent in Congress, Cooper procured from the witness the notes and judgments, assuring him that he liad settled the matter with the Plaintiff. During the same Court, the witness, becoming alarmed in consequence of a communication from the Defendant Stoker, took Cooper with him, went into the Court-House, called the Sheriff to him, stated that his father (the Defendant Culpeper,) was the bail of Cooper, and informed the Sheriff that he then surrendered Cooper to him. The Sheriff said, your father is secured, and left him. Cooper was then standing by his side, and very near him, and Honeycut, one of the Defendants, was at the time in the Court room, but whether in the same part of the room, the witness was unable to state. It also appeared in evidence, that Cooper immediately after went "away, and the Sheriff sent persons in pursuit, who failed to arrest him.

His honor, the presiding Judge, charged the Jury, that as the Sheriff cannot arrest the principal, a surrender involves in it the putting the principal, by the bail, into the custody of the Sheriff; or arresting the principal, and offering him to the Sheriff in such manner that the Sheriff can secure him : But that if the bail use words importing a surrender, the principal being present, but not so offered to the Sheriff, the latter ought at tfie time, to object for that reason, else it will be a good surrender to discharge the bail, and charge the Sheriff. The Judge further instructed the Jury, that the authority given by law to the bail, to arrest the principal, cannot be communicated by the bail to another by parol: for this purpose a written deputation is necessary, in order that the authority of the agent to arrest, and of the Sheriff to detain, may appear with certainty; but that dearly, if an authority merely verbal be suffi-dent, it must be a special authority for that particular purpose, and cannot be deduced from a general agency to transact the business of the bail.

The Jury, under these instructions, found a verdict for the Plaintiff; and a motion for a new trial being made on the ground of misdirection, and overruled, the Defendant appealed.

In this Court no counsel appeared, and the opinion of the Court was delivered by

Hbederson, Judge.

If the principal is brought by a stranger, by physical force, and offered to be surrendered to the Sheriff, who receives him into his custody against the will of the principal, there is no doubt, I presume, but both the stranger and the Sheriff are trespassers, unless the stranger had an authority from the bail to make the arrest and surrender; and that authority should be given by writing at least. But the principal himself may, without the agency or knowledge of his bail, surrender himself, and the Sheriff is as much hound to receive him, as if surrendered by the bail. When, therefore, the principal comes into the presence, and places himself in the power of the Sheriff, with an intention of going into Ids custody, in discharge of his bail, and his purpose is made known to the Sheriff, either from bis own lips or, by the words of another, which he recognizes as evidencing his intention; — this amounts to as full a surrender as if the words declaring that intent had issued from his own mouth. The surrender becomes completely his own, and all pretence of charging the Sheriff as a trespasser, is taken away by his own voluntary act. I call the act voluntary, notwithstanding the moral force which the stranger may have used, to induce the principal to accompany him to the Sheriff for that purpose, suchas persuasions, representations, and the like. ,

I think that the Judge erred in passing over this view of the case, and presenting another, which did not arise until this was disposed of; for the Jury must necessarily have understood that the surrender amounted to nothing, unless young Culpeper had an authority in writing from his father. There should, therefore, be a new trial.

Judgment reversed.