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ownership. The principle of caveat three years thereafter have mainemptor applies. A person purchasing tained an action without previously property of the party in possession, making any demand, and that the without ascertaining where the true omission to commence an action withtitle is, does so at his peril, and, al- in that time constituted a bar to the though honestly mistaken, will be action. liable to the owner for conversion.

The same result was reached in See upon this point Harpending v. Wells v. Ragland (1852) 1 Swan Meyer (1880) 55 Cal. 555, in which (Tenn.) 501, holding that the accase the pledgee of jewelry pledged by quirement of possession of property someone other than the true owner by purchase of someone other than the sold it at pledgee's sale and purchased true owner is tortious from the time it at the sale. In a suit thereafter that the possession is taken, and that brought against him by the true own- hence the Statute of Limitations comer for the conversion of the property, mences to run in favor of the buyer his possession was held to have been at such time. The court said that the tortious from the beginning, and that taking possession of the property was hence the Statute of Limitations com- alike the inception of the defendant's menced to run in his favor from the wrong and of the plaintiff's right of time he received the jewelry. The action as to him, and each successive court said that the defendant, having transfer of the possession of the propacquired the possession of plaintiff's erty was a new conversion on the part property by and through the tortious of the person taking possession, beact of another, and not otherwise, such cause it was an assumption of ownerpossession was tortious from its com- ship in violation of the rights of the mencement, and constituted a con- true owner, and gave to the latter a version of the plaintiff's property, new and independent cause of action. for which he might at any time within

A. G. S.



R. M. SPENCER et al., Appts.

North Carolina Supreme Court - April 8, 1925.

(- N. C. 127 S. E. 349.) Bail, $ 11 - effect of bond.

1. A bail bond duly executed and acknowledged before some authorized person and filed in court, and accepted as a compliance with the order allowing bail, is in legal effect a recognizance and may be enforced as such by the court without the necessity of its being acknowledged in open court

[See note on this question beginning on page 1108.] Bail, $ 11 – effect of failure of prin- ment that sureties on a bail bond are cipal to sign bond.

not to be liable unless a specified num2. Failure of the principal to sign

ber of sureties are secured, followed a bail bond does not affect the liability of the sureties.

by his agreement thereto, does not [See 3 R. C. L. 33.]

bind the state so as to release the Bail, 8 11 — agreement by sheriff as

signers from liability in case the req. to number of sureties – effect. uisite number of sureties are not se. 3. Notice to the sheriff of an agree


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(-- N. C. -, 127 8. E. 349.) Bail, $ 10 — authority as to approving that the bond may be filed during rebond.

cess upon its approval by a designated 4. When a judge has by order in person, who will have no authority or open court fixed all the essential ele- duty with respect to the bond except ments of a bail bond, he may provide that conferred upon him by the order.

APPEAL by the defendant sureties from a judgment of the Superior Court for Person County (Calvert, J.) holding them liable on a bail bond signed by them as sureties for appearance at court of defendant Bradsher. Affirmed. Statement by Connor, J.:

court in this action. This bond is At August term, 1924, of said signed as follows: court, upon the trial of defendant,

"R. M. Spencer. [Seal.] T. C. Bradsher, on an indictment

"R. W. Wilkerson. [Seal.] charging him with violation of the

“W. J. Pettigrew. Seal.; statute relative to intoxicating liq

[Seal.] uor, there was a verdict of guilty.

[Seal.] From the judgment upon this ver

"R. M. Spencer, R. W. Wilkerson, dict, defendant appealed to the su

and W. J. Pettigrew, each being preme court.

See 188 N. C. 447, duly sworn, says that he is worth 124 S. E. 737. Pending said appeal, the sum of twenty-five hundred doldefendant was required by the court

lars over and above all liabilities and to give bond, with two sureties, in

exemptions allowed by law. the sum of $2,500, for his appear

“R. M. Spencer. ance at the next term of the court.

“R. W. Wilkerson. The court ordered that at least two

"W. J. Pettigrew." sureties on said bond should justify, and that the bond should be ap

Indorsed on the bond is the folproved by the clerk of the court. lowing:

Defendant was taken into custody "Subscribed and sworn to before by the sheriff of Person county. On me this August –, 1924, as to Wilthe same day he filed with the clerk kerson and Pettigrew. of the court a bond, in words and D. W. Bradsher, C. S. C.figures as follows: "State v. T. C. Bradsher. We, T.

Upon the filing of this bond, deC. Bradsher, R. M. Spencer, R. W.

fendant, T. C. Bradsher, with the Wilkerson, and w. J. Pettigrew approval of the clerk, was released

from custody. At October term, justly bound unto the state of North Carolina in the sum of

1924, T. C. Bradsher, having failed

to appear, in accordance with the twenty-five hundred dollars to the

condition of his bond, was called out, faithful payment of which we bind

and having failed to answer, judgourselves, our executors and admin

ment nisi on the bond was entered. istrators, firmly by these presents. “Signed and sealed, this August 6, facias be issued.

It was ordered that a writ of scire 1924."

Writ of scire facias was duly isThis bond was upon condition

sued and served upon appellants as that T. C. Bradsher should make his

sureties on said bond. At January personal appearance at October

term, 1925, each of the appellants term of superior court of Person

filed answer to the writ. The court, county, or at the first term of said having heard the evidence, found court after defendant's appeal had the facts as hereinbefore stated, been decided by the supreme court, and further found: and there abide the judgment of the “(5) That on the day during the August term, 1924, on which the de- tive signatures, to which each refendant T. C. Bradsher was sen- plied that it was. That thereupon tenced, he was taken into custody the clerk made the indorsement apby the sheriff of Person county. pearing on the bond. That the bond That the defendant R. M. Spencer was handed back to the deputy shersigned the bond set out in the record iff, who asked the clerk, in the presin the presence of said sheriff after ence of Wilkerson and Pettigrew, having an agreement with the de- if it would be all right to turn the fendant T. C. Bradsher that he, the defendant Bradsher loose, to which said Bradsher, would procure five the clerk replied that it would be all other men to sign the said bond, and right." that unless such other five signa- (8) That the bond of the detures were procured the signature fendant T. C. Bradsher was never, of Spencer was to be erased. That at any time, signed by him, but that the said Spencer then asked the the signatures of the three defendsheriff if he could sign the bond un- ants Spencer, Wilkerson, and Pettider such conditions, to which the grew were all signed in the presence sheriff replied that he could. At the of T. C. Bradsher.” time the defendant R. W. Wilkerson (9) That the deputy sheriffs, also appeared and signed said bond Clayton and Gentry, in the presence in the presence of the sheriff, and of Wilkerson and Pettigrew, restated that he was doing so upon the leased the prisoner, T. C. Bradsher, same conditions upon which Spencer immediately after the foregoing conhad signed it. That later in the versation with the clerk, and he has same day, the sheriff turned over the not since made his appearance or prisoner to his deputy, M. T. Clay- been apprehended.” ton, and instructed his deputy not “(10) That as to the defendant to consider the name of R. M. Spen- R. M. Spencer the court finds that cer on said bond, unless at least four he never appeared before the clerk other good men signed it.”

to acknowledge said bond, and that “(6) That M. T. Clayton and W. the defendant T. C. Bradsher was R. Gentry, both deputy sheriffs, released without his knowledge or were requested by the defendant T. consent, and when he discovered his C. Bradsher to take him and the two release on the following day, the sureties, Wilkerson and Pettigrew, said T. C. Bradsher had fled." to see the clerk of the court to find

Upon the foregoing facts, the out if the clerk would approve the court being of the opinion that the bond, with the signatures of Spen- state was entitled to recover of the cer, Wilkerson, and Pettigrew, so defendants the penal sum of the that defendant might be released un- bond, it was ordered and adjudged til the next morning, at which time that the state of North Carolina the defendant would secure addi

have and recover of the defendants tional signatures. That the said

the sum of $2,500. Defendants, deputy, with the defendant T. C.

having excepted to foregoing judgBradsher, and Wilkerson and Petti

ment, appealed therefrom to the sugrew, then went to the home of the

preme court. clerk of the superior court. The defendant T. C. Bradsher asked the

Messrs. Nathan Lunsford and Lu. clerk of the court if he would ap

ther M. Carlton, for appellants: prove said bond as it was then

There was no valid bail bond upon signed until the next morning, so

which recovery could be had against that he, the said Bradsher, would

any of the defendants. not have to go to jail that night.

Cowan v. Baird, 77 N. C. 201; Bank That the bond was then handed to

of Benson v. Jones, 147 N. C. 419, 16

L.R.A. (N.S.) 343, 61 S. E. 193; 1 the clerk, and he asked Wilkerson

Brandt, Suretyship, 3d ed. $$ 449-451; and Pettigrew if the signatures ap- S. F. Bowser & Co. v. Tarry, 156 N. C. pearing thereon were their respec- 38, 72 S. E. 74; Garrison v. J. I. Case

(- N. C. — 127 8. E. 359.) Threshing Mach. Co. 159 N. C. 286, court ordered that defendant give a 74 S. E. 821; Blackstadt Mercantile bail bond in the sum of $2,500, with Co. v. Parker, 163 N. C. 275, 79 S. E. two sureties who should justify, and 606; Farrington v. McNeil, 174 N. C.

that the bond should be approved by 420, 93 S. E. 957; Summit Ave. Bldg.

the clerk of the court. The bond set Co. v. Sanders, 185 N. C. 328, 117 S.

out in the record, in the sum of E. 3; White v. Fisheries Products Co. 183 N. C. 230, 111 S. E. 182; 3 R. C. L.

$2,500, signed by two sureties, who pp. 32, 33; State v. White, 164 N. C.

justified and acknowledged execu408, 79 S. E. 297; 21 R. C. L. pp. 964,

tion of same before the clerk who 965.

approved same, was filed in comMessrs. Dennis G. Brummitt, Attor- pliance with this order, and defendney General, and Frank Nash, Assist- ant released from custody pending ant Attorney General, for the State. his appeal.

Connor, J., delivered the opinion 1. Appellants contend, first, that of the court:

the bail bond is void, because not acDefendants, by their exception to knowledged in open court. the judgment herein rendered, pre

There is a technical distinction sent to this court for review their between a "bail bond" and a "recogcontention that said judgment is er- nizance." This distinction is recogroneous, for that: (1) The bail nized by statute and in the practice bond upon which it was rendered in some jurisdictions, but in most was not taken in open court; (2) cases it is not substantial, and is the same was not signed by T. C. ordinarily not determinable. 3 R. Bradsher, the principal; and (3) C. L. 15. A recognizance is a debt the appellants R. M. Spencer and R. of record, acknowledged before a W. Wilkerson signed the same upon

court of competent jurisdiction, conditions which were not complied with condition to do some particular with, and the appellant W. J. Petti- act. It need not be executed by the grew signed same in reliance upon parties, but is simply acknowledged the validity of the signatures of R. by them, with a minute of such acM. Spencer and R. W. Wilkerson. knowledgment entered upon the recHis Honor found the facts to be as ords of the court. State V. Eure, contended by appellants, but was of 172 N. C. 874, 89 S. E. 788; State the opinion that these facts did not, v. White, 164 N. C. 408, 79 S. E. under the law, constitute a defense

constitute a defense 297; State v. Smith, 66 N. C. 620; to the judgment nisi, and therefore State v. Edney, 60 N. C. (2 Winst. made the judgment absolute.

L.) 71 ; 34 Cyc. 538. Defendant, T. C. Bradsher, hav- "In some respects a recognizance ing been convicted of a misdemean- is very similar to a boil bond. It or, appealed from the judgment of differs from a bail bond merely in the court. The court was required the nature of the obligation created. by statute to allow him bail, pend- A recognizance is an acknowledging the appeal. Consol. Stat. § ment of an existing debt; a bail 4653. But for this statute, the al bond, which is attested to by the siglowance of bail to defendant, after nature and seal of the obligor, creconviction, would have been in the ates a new obligation." 6 C. J. 892. sound discretion of the court. After This distinction does not seem to conviction, there is no constitutional have been recognized in this state, right to bail. Article 1, $ 14, of the for the obligation under each is held Constitution of North Carolina, in to be identical. A recognizance is so far as it guarantees, by implica- in the nature of a conditional judgtion, the right to bail, does not ap- ment, which may be discharged by ply. 3 R. C. L. p. 15; 6 C. J. 966. performance of conditions, or enIt was the duty of the court to allow forced upon breach of conditions by bail to the defendant, at the August a writ of scire facias. No action term, 1924, upon his conviction an need be brought upon a recogniappeal to the supreme court. The zance, for it is an acknowledgment,

38 A.L.R.—70

Bail-effect of


solemnly entered upon the records strictly speaking, is not valid unless of the court, of an existing debt. A acknowledged in open court, a bail bail bond, after it has been accepted bond duly executed and acknowlby the court and filed, is regarded in edged before some this state as a recognizance. Both officer, or other per- bond. are conclusive, and neither can be son named by the attacked collaterally. State v. Mor- judge, and filed in court, and acceptgan, 136 N. C. 593, 48 S. E. 604. ed as a compliance with the order

A bail bond is in form similar to allowing bail, is, in legal effect and a recognizance. The only practical for all purposes, a recognizance, and distinction seems to be that a bail may be enforced as such by the bond need not be executed, whereas court. a recognizance must be acknowl- 2. Appellants further contend edged, in open court. The parties to that the bail bond is void and that a bail bond are bound by their sig. they, as sureties, are not liable benatures, to a recognizance, by their cause same was not signed by T. C. acknowledgment; hence, the re- Bradsher, the principal. quirement that a recognizance must The bond was signed by the apbe acknowledged in open court, that pellants in the presence of the prina minute may be made as evidence of cipal, who delivered same to the liability. The evidence that obligors clerk for his approval. The failure on a bail bond are liable is their sig- of the principal to sign same was natures, which may or may not be an irregularity, but

-effect of failattested. When a bail bond, execut- does not affect the are of principal ed in accordance with the order of liability of the sure to sign bond. the court, and approved as required ties who signed the bond. They therein, is filed with the court, it be- are each liable, and, the court havcomes, in legal effect, for all pur- ing accepted the bond without the poses, a recognizance.

signature of the principal, the liabilNo distinction between a bail bond ity of the sureties is not affected by and a recognizance has been made or this irregularity. The acknowledgrecognized in the practice in this ment by the principal would be sufstate. Chief Justice Pearson, in ficient to make him liable on a reState v. Edney, 60 N. C. (2 Winst. cognizance, if such acknowledgment L.) 71, says: “When a judge, in a had been made in open court. proceeding initiated before him, ad- Whether the acknowledgment bejudicates that the party is entitled fore the clerk at his home, as perto be discharged on giving bail, and mitted by the court in its order, for fixes the amount, it has long been the ease of the principal and his the practice in this state, if the par- sureties, is as effectual to bind the ty be not prepared with sureties, for principal as if it had been made in the judge to authorize one or more open court, is not presented on this justices of the peace, named by him, record. to take the recognizance; and recog- Where a statute requires a bail nizances so taken have heretofore, bond for the release of a debtor to as far back as the memory of the be executed by the debtor as prinmembers of this court extends, al- cipal and two others as sureties, the ways been deemed valid. This prac- fact that it is executed by the suretice has prevailed so long, and is so ties alone does not render it absoobviously for the ease of the citizen, lutely void, but it is an obligation that we would not be justified in against them. 45 L.R.A. 335, note. . now putting a stop to it, unless sat. There is no statute in this state preisfied that it is in violation of some scribing the form of a bail bond or important principles of law.” State how it shall be executed. The order v. White, 164 N. C. 408, 79 S. C. of the court directed that defendant 297; State v. Smith, 66 N. C. 620. be released upon giving a bail bond

So that, although a recognizance, to be approved by the clerk. The

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