CHAPTER VI. BONDS AND BAIL. SECTION 51. BONDS IN GENERAL. A bond is an instrument in writing and under seal, binding the obligors to the obligee, in accordance with the recitals of the terms of the contract, and containing a defeasance clause showing the limitations or conditions of the liability of the sureties. The bond may be the obligation of both the principal and the sureties; where the principal is also a party to it the bond must be executed by both surety and principal. The obligee must be named with certainty; delivery of the bond to a particular person would not take the place of naming him as the obligee for whom the bond was intended. The bond is usually spoken of as an instrument of great formality, but the instrument will still be a valid bond even though the language is not in the most desired form, if the essentials of reciting the debt, with the obligation to answer for the same, together with the defeasance clause, that is, the conditions under which the bond is to be considered void, are given. A bond does not become effective until a delivery of the same is made, and an acceptance had by the obligee. Bonds may be given for the faithful performance of the duties of a person acting in a private capacity, as on a contract with another private person; these are private obligations. The bond of a public official is styled an official bond; the obligation of the official to give a bond arises by rule of the statute; there is no rule of the common law demanding the giving of such a bond. Judicial bonds, are those which the law requires parties litigant to give in judicial proceedings for the protection of other persons, who it is deemed may suffer an irreparable injury without the exacting of such bonds. If it were not for these checks on the right of all persons to invoke the compelling power of the courts, there would undoubtedly be much abuse of the privilege to bring to court any one who it is claimed owes to the individual an unfulfilled duty. The value of the rule making it necessary to give bond, either in the institution of the suit, or in the course of the review of the judgment on the same, is in its power to compel the litigants to exercise good faith in their appeal to the courts for justice. SECTION 52. BONDS FOR THE FULFILLMENT OF PRIVATE OBLIGATIONS. Bonds given for the fulfillment of private obligations, are purely the result of the contract that the individuals concerned, may make. If it is a bond, for instance, given to save harmless some certain employer from any act of dishonesty or default of his employe, this contract is controlled entirely by the parties to it; the bond may be for a large or small sum; its time of commencement and its duration both depend on the terms of the contract. It is a voluntary obligation and no rule of statute controls the entering into such a bond. Bonds given to secure voluntary contracts are to be distinguished from bonds given for the performance of the duties of a public office, such as a sheriff's bond, or the bond given by the holder of the office of the county treasurer. The strict fulfillment of the obligations named to be performed in a private bond may be waived; the parties to such a contract say whether or not they are satisfied to cancel such a bond; where there has been a breach of the same, the law can ordinarily offer no dictation. The general rules of law of suretyship and the usual rules of construction govern in the matter of bonds given for the performance of a private obligation. SECTION 53. BONDS OF PUBLIC OFFICERS. The statute, or the law that creates an office, usually names the duties appertaining to the office. The official himself has no power to change the duties of his office, or to compel the State to accept a bond, where one is required conditional for the fulfillment of the duties of the office, in any other way, than as the law dictates. Nor can any other officer of the State or government ordinarily change or modify the duties of the office, or waive the right to claim a performance by the officer of his full duty. The relations of the officer to the State are official, and not contractual. This opens the way for important distinctions to be made between the contract rights and obligations of those who agree to answer for the defaults of private agents, and those who answer for public officers. Some of the provisions of the statute in reference to official bonds are directory only, and a failure to comply with the provisions would not have the effect of invalidating the bond, so as to release the surety, nor could an error or omission made in approving the bond, be shown as a defense on the same. And it has been held that a failure to file the bond within the time named by the State, would not release the surety. These provisions of the statute are made to furnish the greater protection to the public; they are not ' Mowbray vs. State, 88 Indiana, 324. intended to aid the surety in using them as a defense to his liability on the bond, after it is given. Where a bond is given voluntarily by an officer, there being no statutory provision requiring that such a bond be given, the surety on such bond will nevertheless be held, if there is a consideration to support the contract. The bond of a surety, given on behalf of a public official, usually has no retroactive effect, unless its terms so indicate. The bond usually takes effect when it is received and accepted, where the acceptance is a condition precedent to the officer taking his office.3 The liability of the surety on an official bond is usually limited by the terms of the bond to the obligations and duties of the office that are imposed by law, and the surety is not to be held liable for money received by the principal, coming to him outside the line of duties, as prescribed by the law. While the bonds of public officials are to be strictly construed, and while the surety shall not be liable for the performance of any duties or obligations except those named in the bond, it is still the rule, that sureties on official bonds are not discharged by a change in the duties of the office by statute, as it is deemed that the sureties signing the bond contemplate the possibility of changes being made in the duties of the office, provided the nature and general duties of the office remain the same. In this connection, Judge Woods, in the case of United States vs. Gaussen,' remarks as follows: "Otherwise every increase in the duties, every change in the manner of conducting the office, • United States vs. Mason, 2 Bond, 183. • United States vs. Le Baron, 19 How. (U. S.), 73. • Sutherland vs. Carr, 85 N. Y., 105. or rendering accounts or paying out the public money, would discharge the bonds of all the collectors of customs holding under the government." Where a second bond is given, during the term of office, where the law requires the giving of a further bond, which bond is to answer for the same duties and obligations, it is considered by most courts as a cumulative bond. The surety in the first bond is not discharged, on account of the giving of the further bond. The bondsman for a judicial officer, although he usually agrees to answer for the faithful performance of both the judicial and ministerial duties of such an officer, still could not be held liable for the consequences of an error of judgment of such an officer. The way in which purely judicial matters shall be handled is discretionary with the judicial officer, but all those acts that are to be performed in a particular way, that is, pointed out by the law, are purely ministerial. It is only for those acts that are of a ministerial nature that such an officer, or his surety, is liable for, and if in the performance of such acts, the officer commits a wrong, or abuses his authority, to the injury of another, the bondsman is liable." Sureties are presumed to know the duties of the public official for whom they sign as sureties, and could not plead ignorance of certain rules of statute in connection with handling of the fees of an office. SECTION 54. BONDS OF PERSONS GIVEN IN LEGAL PROCEEDINGS. There are many situations that arise or present themselves in the course of the administration of justice where the law demands that one of the parties, • Allen vs. State, 61 Ind., 268. People vs. Harper, 91 Ill., 357. 'Place vs. Taylor, 22 Ohio State, 317. Vol. IX-18 |