ownership. The principle of caveat emptor applies. A person purchasing property of the party in possession, without ascertaining where the true title is, does so at his peril, and, although honestly mistaken, will be liable to the owner for conversion.

See upon this point Harpending v. Meyer (1880) 55 Cal. 555, in which case the pledgee of jewelry pledged by someone other than the true owner sold it at pledgee's sale and purchased it at the sale. In a suit thereafter brought against him by the true owner for the conversion of the property, his possession was held to have been tortious from the beginning, and that hence the Statute of Limitations commenced to run in his favor from the time he received the jewelry. court said that the defendant, having acquired the possession of plaintiff's property by and through the tortious act of another, and not otherwise, such possession was tortious from its commencement, and constituted a conversion of the plaintiff's property, for which he might at any time within

The

three years thereafter have maintained an action without previously making any demand, and that the omission to commence an action within that time constituted a bar to the action.

The same result was reached in Wells v. Ragland (1852) 1 Swan (Tenn.) 501, holding that the acquirement of possession of property by purchase of someone other than the true owner is tortious from the time that the possession is taken, and that hence the Statute of Limitations commences to run in favor of the buyer at such time. The court said that the taking possession of the property was alike the inception of the defendant's wrong and of the plaintiff's right of action as to him, and each successive transfer of the possession of the property was a new conversion on the part of the person taking possession, because it was an assumption of ownership in violation of the rights of the true owner, and gave to the latter a new and independent cause of action. A. G. S.

that the bond may be filed during recess upon its approval by a designated person, who will have no authority or duty with respect to the bond except that conferred upon him by the order.

Statement by Connor, J.:

At August term, 1924, of said court, upon the trial of defendant, T. C. Bradsher, on an indictment charging him with violation of the statute relative to intoxicating liquor, there was a verdict of guilty. From the judgment upon this verdict, defendant appealed to the supreme court. See 188 N. C. 447, 124 S. E. 737. Pending said appeal, defendant was required by the court to give bond, with two sureties, in the sum of $2,500, for his appearance at the next term of the court. The court ordered that at least two sureties on said bond should justify, and that the bond should be approved by the clerk of the court.

Defendant was taken into custody by the sheriff of Person county. On the same day he filed with the clerk of the court a bond, in words and figures as follows:

"State v. T. C. Bradsher. We, T. C. Bradsher, R. M. Spencer, R. W. Wilkerson, and W. J. Pettigrew

justly bound unto the state of North Carolina in the sum of twenty-five hundred dollars to the faithful payment of which we bind ourselves, our executors and administrators, firmly by these presents. "Signed and sealed, this August 6,

1924."

This bond was upon condition that T. C. Bradsher should make his personal appearance at October term of superior court of Person county, or at the first term of said court after defendant's appeal had been decided by the supreme court, and there abide the judgment of the

[Seal.]

"R. M. Spencer, R. W. Wilkerson, and W. J. Pettigrew, each being duly sworn, says that he is worth the sum of twenty-five hundred dollars over and above all liabilities and exemptions allowed by law.

"R. M. Spencer. "R. W. Wilkerson. "W. J. Pettigrew." Indorsed on the bond is the following:

"Subscribed and sworn to before me this August —, 1924, as to Wilkerson and Pettigrew.

"D. W. Bradsher, C. S. C."

Upon the filing of this bond, defendant, T. C. Bradsher, with the approval of the clerk, was released from custody. At October term, 1924, T. C. Bradsher, having failed to appear, in accordance with the condition of his bond, was called out, and having failed to answer, judgment nisi on the bond was entered. It was ordered that a writ of scire

facias be issued.

Writ of scire facias was duly issued and served upon appellants as sureties on said bond. At January term, 1925, each of the appellants filed answer to the writ. The court, having heard the evidence, found the facts as hereinbefore stated, and further found:

"(5) That on the day during the

August term, 1924, on which the defendant T. C. Bradsher was sentenced, he was taken into custody by the sheriff of Person county. That the defendant R. M. Spencer signed the bond set out in the record in the presence of said sheriff after having an agreement with the defendant T. C. Bradsher that he, the said Bradsher, would procure five other men to sign the said bond, and that unless such other five signatures were procured the signature of Spencer was to be erased. That the said Spencer then asked the sheriff if he could sign the bond under such conditions, to which the sheriff replied that he could. At the time the defendant R. W. Wilkerson also appeared and signed said bond in the presence of the sheriff, and stated that he was doing so upon the same conditions upon which Spencer had signed it. That later in the same day, the sheriff turned over the prisoner to his deputy, M. T. Clayton, and instructed his deputy not to consider the name of R. M. Spencer on said bond, unless at least four other good men signed it."

"(6) That M. T. Clayton and W. R. Gentry, both deputy sheriffs, were requested by the defendant T. C. Bradsher to take him and the two sureties, Wilkerson and Pettigrew, to see the clerk of the court to find out if the clerk would approve the bond, with the signatures of Spencer, Wilkerson, and Pettigrew, so that defendant might be released until the next morning, at which time the defendant would secure additional signatures. That the said deputy, with the defendant T. C. Bradsher, and Wilkerson and Pettigrew, then went to the home of the clerk of the superior court. The defendant T. C. Bradsher asked the clerk of the court if he would approve said bond as it was then signed until the next morning, so that he, the said Bradsher, would not have to go to jail that night. That the bond was then handed to the clerk, and he asked Wilkerson and Pettigrew if the signatures appearing thereon were their respec

tive signatures, to which each replied that it was. That thereupon the clerk made the indorsement appearing on the bond. That the bond was handed back to the deputy sheriff, who asked the clerk, in the presence of Wilkerson and Pettigrew, if it would be all right to turn the defendant Bradsher loose, to which the clerk replied that it would be all right."

"(8) That the bond of the defendant T. C. Bradsher was never, at any time, signed by him, but that the signatures of the three defendants Spencer, Wilkerson, and Pettigrew were all signed in the presence of T. C. Bradsher."

"(9) That the deputy sheriffs, Clayton and Gentry, in the presence of Wilkerson and Pettigrew, released the prisoner, T. C. Bradsher, immediately after the foregoing conversation with the clerk, and he has not since made his appearance or been apprehended."

"(10) That as to the defendant R. M. Spencer the court finds that he never appeared before the clerk to acknowledge said bond, and that the defendant T. C. Bradsher was released without his knowledge or consent, and when he discovered his release on the following day, the said T. C. Bradsher had fled."

Upon the foregoing facts, the court being of the opinion that the state was entitled to recover of the defendants the penal sum of the bond, it was ordered and adjudged that the state of North Carolina have and recover of the defendants the sum of $2,500. Defendants, having excepted to foregoing judgment, appealed therefrom to the supreme court.

Messrs. Nathan Lunsford and Lu ther M. Carlton, for appellants:

There was no valid bail bond upon which recovery could be had against any of the defendants.

Cowan v. Baird, 77 N. C. 201; Bank of Benson v. Jones, 147 N. C. 419, 16 L.R.A. (N.S.) 343, 61 S. E. 193; 1 Brandt, Suretyship, 3d ed. §§ 449-451; S. F. Bowser & Co. v. Tarry, 156 N. C. 38, 72 S. E. 74; Garrison v. J. I. Case

Threshing Mach. Co. 159 N. C. 286, 74 S. E. 821; Blackstadt Mercantile Co. v. Parker, 163 N. C. 275, 79 S. E. 606; Farrington v. McNeil, 174 N. C. 420, 93 S. E. 957; Summit Ave. Bldg. Co. v. Sanders, 185 N. C. 328, 117 S. E. 3; White v. Fisheries Products Co. 183 N. C. 230, 111 S. E. 182; 3 R. C. L. pp. 32, 33; State v. White, 164 N. C. 408, 79 S. E. 297; 21 R. C. L. pp. 964, 965.

Messrs. Dennis G. Brummitt, Attorney General, and Frank Nash, Assistant Attorney General, for the State.

Connor, J., delivered the opinion of the court:

Defendants, by their exception to the judgment herein rendered, present to this court for review their contention that said judgment is erroneous, for that: (1) The bail bond upon which it was rendered was not taken in open court; (2) the same was not signed by T. C. Bradsher, the principal; and (3) the appellants R. M. Spencer and R. W. Wilkerson signed the same upon conditions which were not complied with, and the appellant W. J. Pettigrew signed same in reliance upon the validity of the signatures of R. M. Spencer and R. W. Wilkerson. His Honor found the facts to be as contended by appellants, but was of the opinion that these facts did not, under the law, constitute a defense to the judgment nisi, and therefore made the judgment absolute.

Defendant, T. C. Bradsher, having been convicted of a misdemeanor, appealed from the judgment of the court. The court was required by statute to allow him bail, pending the appeal. Consol. Stat. § 4653. But for this statute, the allowance of bail to defendant, after conviction, would have been in the sound discretion of the court. After conviction, there is no constitutional right to bail. Article 1, § 14, of the Constitution of North Carolina, in so far as it guarantees, by implication, the right to bail, does not apply. 3 R. C. L. p. 15; 6 C. J. 966. It was the duty of the court to allow bail to the defendant, at the August term, 1924, upon his conviction and appeal to the supreme court. The 38 A.L.R.-70.

court ordered that defendant give a bail bond in the sum of $2,500, with two sureties who should justify, and that the bond should be approved by the clerk of the court. The bond set out in the record, in the sum of $2,500, signed by two sureties, who justified and acknowledged execution of same before the clerk who approved same, was filed in compliance with this order, and defendant released from custody pending his appeal.

1. Appellants contend, first, that the bail bond is void, because not acknowledged in open court.

There is a technical distinction between a "bail bond" and a "recognizance." This distinction is recognized by statute and in the practice in some jurisdictions, but in most cases it is not substantial, and is ordinarily not determinable. 3 R. C. L. 15. A recognizance is a debt. of record, acknowledged before a court of competent jurisdiction, with condition to do some particular act. It need not be executed by the parties, but is simply acknowledged by them, with a minute of such acknowledgment entered upon the records of the court. State v. Eure, 172 N. C. 874, 89 S. E. 788; State v. White, 164 N. C. 408, 79 S. E. 297; State v. Smith, 66 N. C. 620; State v. Edney, 60 N. C. (2 Winst. L.) 71; 34 Cyc. 538.

"In some respects a recognizance is very similar to a boil bond. It differs from a bail bond merely in the nature of the obligation created. A recognizance is an acknowledgment of an existing debt; a bail bond, which is attested to by the signature and seal of the obligor, creates a new obligation." 6 C. J. 892.

This distinction does not seem to have been recognized in this state, for the obligation under each is held to be identical. to be identical. A recognizance is in the nature of a conditional judgment, which may be discharged by performance of conditions, or enforced upon breach of conditions by a writ of scire facias. No action need be brought upon a recognizance, for it is an acknowledgment,

solemnly entered upon the records of the court, of an existing debt. A bail bond, after it has been accepted by the court and filed, is regarded in this state as a recognizance. Both are conclusive, and neither can be attacked collaterally. State v. Morgan, 136 N. C. 593, 48 S. E. 604.

A bail bond is in form similar to a recognizance. The only practical distinction seems to be that a bail bond need not be executed, whereas a recognizance must be acknowledged, in open court. The parties to a bail bond are bound by their signatures, to a recognizance, by their acknowledgment; hence, the requirement that a recognizance must be acknowledged in open court, that a minute may be made as evidence of liability. The evidence that obligors on a bail bond are liable is their signatures, which may or may not be attested. When a bail bond, executed in accordance with the order of the court, and approved as required therein, is filed with the court, it becomes, in legal effect, for all purposes, a recognizance.

No distinction between a bail bond and a recognizance has been made or recognized in the practice in this state. Chief Justice Pearson, in State v. Edney, 60 N. C. (2 Winst. L.) 71, says: "When a judge, in a proceeding initiated before him, adjudicates that the party is entitled to be discharged on giving bail, and fixes the amount, it has long been the practice in this state, if the party be not prepared with sureties, for the judge to authorize one or more justices of the peace, named by him, to take the recognizance; and recognizances so taken have heretofore, as far back as the memory of the members of this court extends, always been deemed valid. This practice has prevailed so long, and is so obviously for the ease of the citizen, that we would not be justified in now putting a stop to it, unless satisfied that it is in violation of some important principles of law." State v. White, 164 N. C. 408, 79 S. C. 297; State v. Smith, 66 N. C. 620.

So that, although a recognizance,

Bail-effect of

strictly speaking, is not valid unless acknowledged in open court, a bail bond duly executed and acknowledged before some officer, or other per- bond. son named by the judge, and filed in court, and accepted as a compliance with the order allowing bail, is, in legal effect and for all purposes, a recognizance, and may be enforced as such by the court.

2. Appellants further contend that the bail bond is void and that they, as sureties, are not liable because same was not signed by T. C. Bradsher, the principal.

-effect of fail

ure of principal to sign bond.

The bond was signed by the appellants in the presence of the principal, who delivered same to the clerk for his approval. The failure of the principal to sign same was an irregularity, but does not affect the liability of the sureties who signed the bond. They are each liable, and, the court having accepted the bond without the signature of the principal, the liability of the sureties is not affected by this irregularity. The acknowledgment by the principal would be sufficient to make him liable on a recognizance, if such acknowledgment had been made in open court. Whether the acknowledgment before the clerk at his home, as permitted by the court in its order, for the ease of the principal and his sureties, is as effectual to bind the principal as if it had been made in open court, is not presented on this record.

Where a statute requires a bail bond for the release of a debtor to be executed by the debtor as principal and two others as sureties, the fact that it is executed by the sureties alone does not render it absolutely void, but it is an obligation against them. 45 L.R.A. 335, note. There is no statute in this state prescribing the form of a bail bond or how it shall be executed. The order of the court directed that defendant be released upon giving a bail bond to be approved by the clerk. The