1. Where the condition of a recognizance of bail in a criminal
action pending in a circuit court of the United States provided
that the party held to bail should appear for trial at the next
regular term of the court and at any subsequent term thereafter,
the latter clause is construed to mean that the party shall appear
at any subsequent term which may follow in regular succession in
the course of business of the court, and not at any distant future
term to which either party might be disposed to postpone the trial,
without reference to any intervening term.
2. Where a stipulation was made between the parties to a
criminal action (the government and the prisoner) and entered in
the minutes of the court to postpone the trial of the action until
the determination of cases pending in another court,
held
that the stipulation was inconsistent with the condition of a
recognizance of bail that the principal should appear for trial at
any subsequent term following the then next term in regular
succession, and that it released the principal from the obligation
to appear at any such subsequent term.
3. Although the rights and liabilities of sureties on a
recognizance are in many respects different from those of sureties
on ordinary bonds or commercial contracts, yet their positions are
similar in respect to the limitations of their liability to the
precise terms of their contract and the effect upon such liability
of any change in those terms without their consent.
4. By a recognizance of bail in a criminal action, the principal
is, in the theory of the law, committed to the custody of the
sureties as to jailers of his own choosing, not that he is
subjected or can be subjected by them to constant imprisonment, but
that he is so far placed in their power that they may at any time
arrest him upon the recognizance and surrender him to the court,
and, to the extent necessary to accomplish this, may restrain him
of his liberty.
5. This power of arrest can only be exercised within the
territory of the United States, and there is an implied covenant on
the part of the principal with his sureties when he is admitted to
bail that he will not depart out of this territory without their
assent. There is also an implied covenant on the part of the
government, when the recognizance of bail is accepted, that it will
not in any way interfere with this covenant between them or impair
its obligation or take any proceedings with the principal which
will increase the risks of the sureties or affect their remedy
against him.
6. Accordingly, when in a criminal action a stipulation was made
and entered in the minutes of the court between the government and
the defendant, who had given bail for his appearance for trial,
that he might depart without the territory of the United States to
a foreign country and remain there until certain civil cases
pending in another court were
Page 76 U. S. 14
finally disposed of, and such stipulation was made without the
knowledge or assent of the sureties on the recognizance of bail,
held that the sureties were released.
In December, 1856, one Limantour was indicted at San Francisco
by the grand jury of the circuit court of the United States for
uttering and publishing as true, to the board of land commissioners
created under the Act of March 3, 1851, to ascertain and settle
private land claims in the State of California, a false writing
purporting to be a grant of certain described lands in California
from the Mexican government with intent to defraud the United
States, knowing the same to be false. To this indictment Limantour
appeared and pleaded not guilty. He was then admitted to bail on
motion of his counsel, the amount being fixed by order of the court
at $30,000.
Soon after the issue was thus joined, a motion was made on the
part of the United States to set the case for trial early in
January, 1857. This motion was resisted, and at the same time
application was made on the part of Limantour for a continuance of
the cause, and in support of the application his affidavit was
read, in which he asserted the genuineness of the grant alleged by
the United States to have been forged and that it was made at the
time and by the officers as averred by him. For alleged perjury in
making this affidavit the grand jury soon afterwards found a second
indictment against him. To this indictment he also appeared and
pleaded not guilty, and, upon the motion of his counsel, was
admitted to bail, its amount being fixed at $5,000.
By order of the court, the recognizance of bail was taken in one
instrument, the obligation of the sureties being the amount
required in both cases. The defendant Reese and one Castro became
the sureties of Limantour, binding themselves jointly and severally
in the sum designated. Upon this recognizance the United States
brought suit, the present action. The recognizance recited the
finding and presentment of the two indictments, the commitment of
Limantour
Page 76 U. S. 15
thereon, and the order of the court for his discharge on
furnishing the required bail, and was conditioned that Limantour
should personally appear at the next regular term of the circuit
court to be held in the City of San Francisco,
and at any
subsequent term to be thereafter held in that city, to answer
all such matters and things as should be objected against him, and
to abide the order of the court and not depart therefrom without
leave first obtained. This recognizance was dated the 5th of
February, 1857.
At the subsequent term of the circuit court, in August of that
year, Limantour appeared and was ready and pressing for trial in
both cases, with witnesses in attendance from the City of Mexico.
The district attorney thereupon moved for a postponement of the
trials. At this time, two cases of Limantour for land claimed under
alleged Mexican grants were pending in the district court of the
United States on appeal from decrees of the land commissioners, by
whom the claims had been confirmed. One of the cases was for a
claim under the alleged forged grant. The witnesses in attendance
were persons who had been brought from Mexico to testify in the
land cases, and they were obliged to return without delay. It was
therefore stipulated between the district attorney and the counsel
of Limantour, on the one side that the postponement desired by the
government should be assented to and on the other side that neither
of the criminal actions should be brought to trial until after
final decrees had been rendered in the two land cases by the
district court, and if both or either of the decrees were in favor
of the claimant, that the criminal actions should be dismissed by
the United States; but if the decrees were adverse to the claimant,
that reasonable time should be given him to prepare for the trial
of the criminal actions, and to procure the attendance of such of
his witnesses as resided without the State of California. The
stipulation was entered upon the minutes of the court, and the
postponement desired was granted, by order of the court, in
accordance with its terms.
With this stipulation, the sureties on the recognizance had
nothing to do in any way, and had, in fact, no knowledge of
it.
Page 76 U. S. 16
It was proved at the trial without objection that it was fully
understood by all parties at the time that if the stipulation
should be made, Limantour and his witnesses would return to Mexico
and remain there until the civil cases in the United States
district court were finally disposed of, and that Limantour should
afterwards have time enough allowed him to give notice to his
witnesses and get them and return with them to San Francisco.
The result was that the witnesses of Limantour returned at once
to Mexico, and after two or three months' delay Limantour followed
them, and never returned to California.
In November, 1858, the district court by its decrees rejected
the claims of Limantour in both of the land cases, and soon
afterwards the district attorney moved that the criminal actions be
set for trial. After repeated adjournments, the motion was finally
argued and decided in March, 1859, and on the 26th of that month
were set for trial for the 25th of April following On this latter
day, the two actions were called, and Limantour was called in both,
but he did not appear in either of them, and thereupon an order was
entered forfeiting the recognizance of bail.
By stipulation of the parties the case was tried in the circuit
court without the intervention of a jury, and that court gave
judgment for the United States. The surety, Reese, accordingly
brought the case here by writ of error.
Page 76 U. S. 17
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court as follows:
As a defense to this action, the defendant relied in the circuit
court upon several grounds, the principal of which were these:
First. That the acts charged in the two indictments did not, at
the time of their alleged commission, constitute any offense under
the laws of the United States, and as a consequence that the
indictments and all proceedings thereunder,
Page 76 U. S. 18
including the requiring of bail for the appearance of the party
indicted, were void.
Second. That if the indictments and proceedings thereunder were
not void, the stipulation of August, 1857, for a postponement of
the trials released the sureties from liability on their
recognizance, and
Third. That the recognizance was void in embracing the amount
required as bail upon both indictments.
The third ground here stated is not pressed in this Court. The
other two grounds are substantially the same which are urged here,
differing only in their form of statement. Upon the first of these
we express no opinion. Upon the second, we are of opinion that the
circuit court erred, and for reasons which may be briefly
stated.
The condition of the recognizance provided for the personal
appearance of Limantour at the then next regular term of the
circuit court in San Francisco, and also at any subsequent term to
be thereafter held in that city. It has been suggested that the
provision for the appearance of the party at any term subsequent to
that succeeding his arrest is unusual and invalid, but we do not
pass upon the suggestion, and for the purposes of this case we
shall treat the recognizance as unobjectionable in form. At the
next regular term after its execution, the party personally
appeared with his witnesses and pressed the trial of the
indictments. The first portion of the condition of the recognizance
was thus complied with. The provision for his appearance at any
subsequent term had reference to such subsequent term as might
follow in regular succession in the course of business of the
court. It was inserted to obviate the necessity of renewing the
bail every time the cases were, from any cause, continued from one
term to another. It was not intended to apply to any distant future
term to which either party might be disposed to postpone the trials
without reference to any intervening term. The principal and
sureties, by their recognizance, covenanted with the United States
that the principal should appear before the court and answer all
such matters as might be objected against him at the next term and
from
Page 76 U. S. 19
term to term until the cases were disposed of, not that he
should appear at the next term and then at a term years later,
depending for its designation upon the happening of a contingent
event.
The stipulation in this case was for a postponement of the trial
of the criminal actions for a period of uncertain duration until
final decrees should be rendered by the district court of the
United States in certain cases pending on appeal from the board of
commissioners created under the Act of March 3, 1851, to ascertain
and settle private land claims in the State of California. Cases on
appeal form that board were not heard upon the record transmitted
to the court, and therefore were not subject to be disposed of
whenever they could be argued. They were tried anew upon the
testimony and proceedings had before the board and such further
testimony as might be produced by the parties in the district
court. [
Footnote 1] The
proceedings in the court advanced slowly when new testimony was
produced, as it was required to be taken in writing and by question
and answer. Independent of this circumstance, it was difficult to
anticipate the period which any case meeting with opposition and
seriously contested would occupy. The difficulty of determining in
advance the duration of litigated proceedings, which exists in all
cases, was increased with respect to Mexican land cases appealed
from the board to the District Court of the United States by a
variety of causes -- among others, from the manner in which the
testimony was taken, as already stated; the necessity of looking
into the archives of the former Department of California, and
sometimes of the supreme government at the City of Mexico; of
examining Mexican witnesses, ignorant of our language, and of
interpreting Mexican and Spanish usages, ordinances, and laws. In
the cases of the City of San Francisco and of the City of Sonoma,
[
Footnote 2] the appeals were
pending in the district court for over eight years. These cases of
Limantour involved lands in the City of San Francisco
Page 76 U. S. 20
and adjoining it, covered with buildings and expensive and
permanent improvements which were of the value of many millions.
His claims were, for this reason as well as their supposed
fraudulent character, vigorously contested not only by the United
States, but by citizens of San Francisco acting in concert with the
district attorney. A final disposition of them until after the
lapse of many months, and perhaps of several years, could not
therefore have been reasonably anticipated.
The stipulation to postpone the trials until after such final
disposition was inconsistent with the condition of the
recognizance. It released Limantour from the obligation of
appearing at any subsequent term following the then next term in
regular succession. It substituted for it an agreement that he need
not appear at any such subsequent term, but only at such term as
might be held after the happening of an uncertain and contingent
event. The stipulation, in other words, superseded the condition of
the recognizance.
This will readily appear if we consider the condition, which,
subsequent to that stipulation, must have been exacted in a new
recognizance if the sureties on the present recognizance had
surrendered their principal. It could not have been for the
appearance of the defendant at the next regular term thereafter or
any succeeding term, for such a condition would have been
inconsistent with the stipulation. It could only have been for his
appearance at such term as might be designated by the district
attorney or the circuit court after the final decrees were rendered
by the district court in certain land cases pending therein on
appeal from the board of land commissioners, provided always that
such decrees were against the claimant, and provided further that
the term designated allowed reasonable time to the defendant to
prepare for trial and to procure the attendance of witnesses
residing out of the state. It requires no argument to show that a
condition like this would be a very different one from that
embodied in the existing recognizance.
If now we apply the ordinary and settled doctrine which
Page 76 U. S. 21
controls the liabilities of sureties, it must follow that the
sureties on the recognizance in suit are discharged. The
stipulation, made without their consent or knowledge, between the
principal and the government, has changed the character of his
obligation; it has released him from the obligation with which they
covenanted he should comply, and substituted another in its
place.
It is true, the rights and liabilities of sureties on a
recognizance are in many respects different from those of sureties
on ordinary bonds or commercial contracts. The former can at any
time discharge themselves from liability by surrendering their
principal, and they are discharged by his death. The latter can
only be released by payment of the debt or performance of the act
stipulated. But in respect to the limitations of their liability to
the precise terms of their contract and the effect upon such
liability of any change in those terms without their consent, their
positions are similar. And the law upon these matters is perfectly
well settled. Any change in the contract on which they are sureties
made by the principal parties to it without their assent discharges
them, and for obvious reasons. When the change is made, they are
not bound by the contract in its original form, for that has ceased
to exist. They are not bound by the contract in its altered form,
for to that they have never assented. Nor does it matter how
trivial the change, or even that it may be of advantage to the
sureties. They have a right to stand upon the very terms of their
undertaking.
There is also another view of the stipulation which leads to the
same result. By the recognizance, the principal is, in the theory
of the law, committed to the custody of the sureties as to jailers
of his own choosing, not that he is, in point of fact, in this
country at least, subjected or can be subjected by them to constant
imprisonment; but he is so far placed in their power that they may
at any time arrest him upon the recognizance and surrender him to
the court, and, to the extent necessary to accomplish this, may
restrain him of his liberty. This power of arrest can only be
exercised within the territory of the United States, and there
is
Page 76 U. S. 22
an implied covenant on the part of the principal with his
sureties, when he is admitted to bail, that he will not depart out
of this territory without their assent. There is also an implied
covenant on the part of the government when the recognizance of
bail is accepted that it will not in any way interfere with this
covenant between them, or impair its obligation, or take any
proceedings with the principal which will increase the risks of the
sureties or affect their remedy against him.
The stipulation in this case was made with the distinct
understanding of the parties that upon its execution, Limantour and
his witnesses would return to Mexico and would remain there until
the civil cases in the district court were finally disposed of, and
that he should afterwards have time allowed him to obtain his
witnesses and return to this country with them. The government thus
consented that Limantour might depart out of the territory of the
United States to a foreign country, where it would be impossible
for the bail to exercise their right to arrest and surrender him,
and further, it consented that he might remain abroad for a period
of indefinite duration. This was all done without the concurrence
or even knowledge of the sureties, whose risks were thus greatly
increased.
It would be against all principle and all justice to allow the
government to recover against the sureties for not producing their
principal, when it had itself consented to his placing himself
beyond their reach and control. [
Footnote 3]
[
Footnote 1]
United States v.
Ratchie, 17 How. 533;
Grisar
v. McDowell, 6 Wall. 375.
[
Footnote 2]
70 U. S. 3
Wall. 684.
[
Footnote 3]
Rathbone v. Warren, 10 Johnson 587, 589;
Niblo v.
Clark, 3 Wendell 24, 27;
S.C. on error, 6 Wendell
236, 245;
Bowmaker v. Moore, 7 Price 223, 231, 234;
S.C., 3 Price 214.
