People v. Shirley — 18 Cal. 121

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p. 121

THE PEOPLE v. SHIRLEY et al.

Headnote

To suit on a recognizance for the appearance of a party charged with crime, the sureties cannot set up as a defense the fact that the amounts in which they justified wore insufficient under the statute. The justification is no part of their contract.

Appeal from the Eleventh District.

There is no need of any further statement of facts than appears in the opinion of the Court. The Court below overruled a general demurrer’to the complaint, and entered final judgment for plaintiffs. Defendants appeal.

Hume & Sloss, for Appellants, cited Wood’s Dig. arts. 1725, 1728; Lower v. Knox, 10 Cal. 480 ; 10 Mass. 444 ; City of Sacramento v. Dunlap, 14 Cal. 421 .

S. W. Sanderson, for Respondents, cited Glover v. Rood, 2 Met. 490 ; Lane v. Smith, 2 Pick. 281 ; Rice v. Hosmer, 12 Mass. 127 ; Long v. Billings, 9 Id. 479.

Baldwin, J. and Cope, J. concurring.

The defendants are sued upon their recognizance of bail for the appearance of Brown, who was indicted for an assault with an intent to commit murder, and contend that they are not liable because the several amounts for which they justified do not equal double the sum at which the bail was fixed by the order of the Court. The answer is well given by the. respondents’ counsel; the justification forms no part of the defendants’ ‘contract, and in no manner affects their liability. The insufficiency of the amounts would have been good ground for the County Judge to refuse his approval of the instrument, but it does not lie in the mouth of the. sureties to object, when the approval is given.

Judgment affirmed.

Cases cited

Lower v. Knox 10 Cal. 480 Cal. p. 121
City & County of Sacramento v. Dunlap 14 Cal. 421 Cal. p. 121