Opinion of the Court.

rogation, and the notes to Dering v. Earl of Winchelsea, in 1 White and Tudor's Leading Cases in Equity, 100, refer to the authorities, and exhibit the general results deducible therefrom; and in Mr. Burge's Treatise on Suretyship the rules of the civil law on the same subject are fully set forth. The doctrine is, that a surety paying the debt for which he is bound, is not only entitled to all the rights and remedies of the creditor against the principal for the whole amount, but against the other sureties for their proportional part. This is clearly the rule where the principal obligation is the payment of money or the performance of a civil duty. And in England the sureties of a debtor to the King (as for duties, taxes, excise, &c.), have always, since Magna Charta at least, had the right, upon paying the debt, to have the benefit of prerogative process, such as extent, or other Crown process adapted to the case, to aid them in coercing payment from the principal, and compelling contributions from co-sureties. Thus, where upon a scire facias issued against the heir and executor of one surety, the defendant paid the debt, it was ordered that he should stand in the place of the Crown, and have the aid of the court to recover either the whole against the principal, or a moiety against a co-surety. Manning's Exch. Pract. 563. And where a collector of a township [or parish] was a defaulter, and the township was re-taxed for the deficit, the same relief was given. Macdonald, Ch. Baron, said:

"The parish stands very much in the nature of sureties; and it is a reasonable practice that the party was has made good to the Crown the default of the defendant, should have the same remedy that the Crown itself would have; it is besides unanswerable that this is a debt upon record and still subsisting; nor can it be satisfied by the re-assessment of the parish." Rex v. Bennett, Wightwick, 1, and cases in note. See also Regina v. Salter, 1 Hurlst. & Nor. 274.

The last observation of the Chief Baron (that the debt of the collector was still subsisting), was made in view of the opinion which long prevailed in England, that payment of the debt by the surety extinguished it, and took away the remedies for en

Opinion of the Court.

forcing it, even a judgment recovered, and thereby deprived the surety himself of all advantage of such remedies, and left him to his action for money paid-a result not recognized or admitted by most of the courts of this country, and remedied in England by the Mercantile Law Amendment Act, 19 and 20 Vict., c. 97, by virtue of which a payment of the debt by the surety has virtually the effect of an assignment thereof to him. Sheldon on Subrogation, §§ 135-138.

This rule of subrogation in favor of the sureties to the prerogative rights and remedies of the Crown seems to be confined to cases of Crown debtors, such as collectors, receivers, accountants and other fiscal officers, and persons bound for customs duties excise, taxes and other civil duties. We have not been able to find any English case in which it has been applied, or allowed, in favor of bail in a criminal proceeding. It has even been held that the law raises no liability on the part of the person bailed to indemnify his bail for what they have been compelled to pay on their recognizance by reason of his default. It is said in Highmore on Bail, 204, "if a principal do not appear, and the recognizance be forfeited, and paid by the bail, yet the principal shall remain open and liable to the law whenever he can be taken, for the penalty in the recognizance is no other than as a bond to compel the bail to a due observance thereof, and has no connection with the principal; they could not sue him thereon for money paid to his use, or on his account, for it was paid on their own account, and for their own neglect." In a subsequent edition, it is true, it is said to have been settled that where a person is bail for another he is entitled to recover all the expenses he has incurred incidental to that situation; and the same statement is made in Petersdorff on Bail, 517; but the only authority cited for the position is the case of Fisher v. Fallows, 5 Esp. 171, which was a case of bail in a civil proceeding, and consequently was no authority for the proposition as applied to criminal cases.

In Jones v. Orchard, 16 C. B. 614, an action on an implied promise to indemnify bail in a criminal case was sustained in regard to the costs which he was obliged to pay on default of principal under an act of Parliament, but it was virtually con

Opinion of the Court.

ceded that no such promise of indemnity, would be implied for the non-appearance of the principal, because it would be against public policy. In the course of the argument, Jervis, C. J., said: "As to the non-appearance of the defendant, there can, I apprehend, be little doubt; but a very different question may arise as to the costs; and here the recognizance was estreated only because Orchard failed to pay the costs." And in the final opinion he said:

"The rule [to set aside a verdict for the plaintiff] was moved on the ground that a contract, in a criminal case, to indemnify the bail against the consequences of a default of the principal's appearance on the trial of the indictment, is contrary to public policy, and therefore that the law will not presume any such contract. It is unnecessary to decide that point on the present occasion, although we are inclined to think the objection well founded, and that such a contract would be contrary to public policy, inasmuch as it would be in effect giving the public the security of one person only, instead of two."

In the subsequent case of Chipps v. Hartnoll, 4 B. & S. 414, it was held by the Court of Exchequer Chamber, upon much consideration, that an express contract to indemnify the bail in a criminal case might be sustained, but that no such contract is implied by law. In that case, the plaintiff had become bail for defendant's daughter upon his promise to hold the plaintiff harmless. The daughter making default, and the plaintiff being obliged to pay his recognizance, sued the defendant on his promise. The latter set up the statute of frauds, and the question was whether the promise was or was not a collateral one; if the person for whose appearance bail was given (the daughter of the defendant) was in law liable to indemnify her bail, then the promise of the father was a collateral one, and void by the statute of frauds for not being in writing; if she was not thus liable, then the father's promise was an original promise of indemnity, and the statute of frauds did not apply. The case was fully argued, first in the King's Bench, 2 B. & S. 697, and afterwards in the Exchequer Chamber on error. The King's Bench held, in deference to a former case of Green v.

Opinion of the Court.

Cresswell, 10 A. & E. 453, that the daughter was primarily liable, and that the promise of the father was collateral. But in the Exchequer Chamber it was pointed out that Green v. Cresswell was a case of bail in a civil, and not in a criminal, proceeding. and therefore not an authority in the case under consideration; and the court held that the daughter was not legally liable, and that the promise was not a collateral one; and reversed the judgment of the Court of King's Bench. Chief Baron Pollock, after pointing out the distinction, said:

"Here the bail was given in a criminal proceeding; and, where the bail is given in such a proceeding, there is no contract on the part of the person bailed to indemnify the person who became bail for him. There is no debt, and with respect to the person who bails there is hardly a duty; and it may very well be that the promise to indemnify the bail in a criminal matter should be considered purely as an indemnity, which it has been decided to be."

This decision (made in 1863) has not, so far as we are aware, been shaken by any subsequent case in England or in this country; and we think it is based on very satisfactory grounds. This may be more apparent when we consider the peculiar character and objects of bail in criminal cases as compared with the object and purpose of bail in civil cases. The object of bail in civil cases is, either directly or indirectly, to secure the payment of a debt or other civil duty; whilst the object of bail in criminal cases is to secure the appearance of the principal before the court for the purposes of public justice. Payment by the bail in a civil case discharges the obligation of the principal to his creditor, and is only required to the extent.of that obligation, whatever may be the penalty of the bond or recognizance; whilst payment by the bail of their recognizance in criminal cases, though it discharges the bail, does not discharge the obligation of the principal to appear in court; that obligation still remains, and the principal may at any time be retaken and brought into court. To enable the bail, however, to escape the payment of their recognizance by performing that which the recognizance bound them to do, the government will lend them its aid in every proper way, by process and without

Opinion of the Court.

process, to seize the person of the principal and compel his appearance. This is the kind of subrogation which exists in criminal cases, namely, subrogation to the means of enforcing the performance of the thing which the recognizance of bail is intended to secure the performance of, and not subrogation to the peculiar remedies which the government may have for collecting the penalty; for this would be to aid the bail to get rid of their obligation, and to relieve them from the motives to exert themselves in securing the appearance of the principal. Subrogation to the latter remedies would clearly be against public policy by subverting, as far as it might prove effectual, the very object and purpose of the recognizance. It would be as though the government should say to the bail, "We will aid you to get the amount of your recognizance from the principal so that you may be relieved from your obligation to surrender him to justice." If payment of the recognizance operated as a satisfaction or composition of the crime, then the subrogation contended for might be free from this objection; for then the government would be satisfied in regard to the principal matter intended to be secured.

We have been referred by the appellant's counsel to two cases in this country which are supposed to maintain a contrary doctrine to that of the English cases above cited. These are Reynolds v. Harral, 2 Strobhart, 87, and Simpson v. Roberts, 35 Ga. 180. In Reynolds v. Harral (which was decided in 1847) it was indeed held that bail in a criminal case may maintain an action against their principal for money paid, to indemnify them for what they have been obliged to pay on their recognizance. But the case stands alone, and the point was very little discussed; and the court relied for authority upon the observation in Petersdorff on Bail, already referred to, which, as we have seen, was based on a decision at nisi prius in a civil proceeding, and was expressly overruled as applied to criminal cases in Chipps v. Hartnoll. The other case, Simp son v. Roberts, was one in which the principal executed a mortgage to the bail to induce him to enter into the recognizance, and the mortgage was sustained by the court. This decision entirely accords with that of Chipps v. Hartnoll. Neither of

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