Stewart v. Warfield

R. W. WALKER, J. The condition of a bail-bond may be broken, not only by the principal obligor’s passing beyond the prison bounds, that is, the boundary of the county, but also by his failure to surrender himself to the jailor at-the expiration of the term of sixty days. — Code, §§ 2734, 2737, 2740. “If the debtor is guilty of an escape, by passing beyoiid the prison bounds,” without payment of the judgment, interest, and costs, the obligee in the bond is entitled to a summary remedy, by notice and motion, against the debtor and his sureties on the bail-bond.— Code, § 2737. But no such summary proceeding is authorized in case the debtor is guilty of an escape, not by passing beyond the prison bounds, but by failing to surrender himself to the jailor at the end of sixty days. As the debtor may -be guilty of -an escape in either of the two ways above specified, and as the summary remedy by motion is only given in case the escape is “ by passing beyond the prison bounds,” it .follows that, in order to sustain a judgment against a surety, in a summary proceeding under section 2737 of the Code, the record must affirmatively show that the debtor was guilty of an escape “by passing beyond the prison bounds.” This is not done in the present case, and the judgment must be reversed, -and the cause remanded. — See Underwood v. School Township. 34 Ala. 29 ; Campbell v. May, 31 Ala. 569 ; Bates v. P. & M. Bank, 8 Porter, 99 ; and cases collected, Sheph. Digest, 747. .Reversed and remanded.