Gray v. Strickland

ANDERSON, J.- The judgment in this case having been rendered before the Code of 1907 went into effect, the appellant had one year, instead of six months, within which to take his appeal.—Poull & Co. v. Foy-Hays Construction Co., 159 Ala. 453, 48 South. 785. The motion to dismiss the appeal is overruled. Under the common law the sureties upon a defendant’s bail had the unquestioned right to arrest him at pleasure and surrender him into the hands of the law, and this could be done without the issuance of process. —3 Am. & Eng. Ency.. Law, 708; Bearden v. State, 89 Ala. 21, 7 South. 755; State v. Crosby, 114 Ala. 11, 22 South. 110; Cain v. State, 55 Ala. 170; Hawk v. State, 84 Ala. 466, 4 South. 690. Section 6351, Code 1907, [347] provides for the discharge of the sureties by a surrender of the principal, and also provides for the arrest of the defendant upon a certified copy of the undertaking. Therefore, under the statute, the sureties have the right to procure their discharge by surrendering the principal at any time before a' default, just as they had under the common 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 rights or powers, but really qualifies the common law right of arrest, and the method, as prescribed by the statute must be exclusive. It gives no additional right to arrest, and cannot be said to be in aid of or cumulative to the common law in this particular, and, to give it any meaning or operation whatever, it must be construed as confining the right of arrest by the sureties in the manner therein required.. To hold otherwise would render the statute meaningless as to the requirement in making arrests, and in effect stultify the lawmakers.—David v. Levy & Son, 119 Ala. 241, 24 South. 589. The Alabama cases, supra, merely reiterate the common law as to the sureties’ right to arrest the principal, and did not attempt to construe the statute, in so far as it relates to the point involved in the case at bar, but dealt with the right of the sureties to a discharge and not in the way in which they could arrest the principal. True, there may be instances when it might be a hardship upon the bail to not permit an arrest of the principal without a certified copy of the under faking; but this can be avoided by the procurement of a copy when the bond is made. The trial court did not err in giving the charges requested by the plaintiff. The trial court permitted the capias and bond to be introduced in mitigation of damages, and this was the only purpose that they could serve. [348] There was no error in declining to let. the defendant ask the plaintiff how Seales seemed to hold him out, or in not letting Gray state his purpose in having the plaintiff arrested. He could narrate the facts, and it was for the jury to determine his motive or purpose. There was no error in permitting Seales to testify that he was armed when he arrested the plaintiff. Whether he used the weapon or not, his having it was a circumstance to go to the jury in ascertaining the animus in making the arrest. The judgment of the circuit court is affirmed. Dowdell., O. J., and McClellan and Sayre, JJ., concur.