Deuhert v. Schwend — 13 N.Y. St. Rep. 712

Majority

p. 712

Jacob Deuhert v. Robert Schwend, Impleaded, etc.

(City Court of New York, Trial Term,

Filed December, 1887.)

Headnote

Contract—Employment of deputy United States marshal by bondsmen TO RECAPTURE RUNAWAY PRISONER.

One Bulter, alias Byrne, was arrested under process from the federal court, for using the United States mails in furtherance of a sawdust swindling scheme. He was held for trial by a United States commissioner, bail being fixed at $2,500. The defendants became the bondsmen. Butler afterward ran away, and the bail bond was forfeited. The defendants thereupon employed the plaintiff, who was then a deputy United States marshal, to recapture the fugitive, and agreed to pay him $500 for his labor and expenses if he succeeded. The plaintiff secured the fugitive, who was brought before the United States court, where he pleaded guilty and was sentenced to prison The bail bond was, thereupon, canceled and' the sureties released. Held, that the acts of the p.aintiff were not performed nirtute officii, but as an individual under authority conferí ed in writing by the defendants as bail. That the bligation was not exacted by the plaintiff colore officii, but was executed by the defendants voluntarily for their special benefit, and that they were fiable for the promised reward.

George Butler, alias Byrne, alias Hayes, a sawdust swindler, was arrested under process from the federal court, for using the United States mail for the distribution

p. 713

or circulars concerning a scheme to defraud the public. The prisoner was taken before Commissioner Shields and held for trial in $2,500 bail. The defendant Fuchius signed the bond, but the commissioner required another surety, and Schwend was induced to become the second bondsman. The defendant Schwend claims that the plaintiff induced him to become bondsman for the prisoner on the assurance that he was innocent, as the offense had been committed by another. The plaintiff denied this, and as the plaintiff and Schwend were strangers it seems incredible that this story can be true. That told by the plaintiff is more reasonable. Fuchius, a neighbor of Schwend, induced the latter to sign with him.

Fuchius kept a segar store and the circumstance, that he went on Butler’s bond, opened an acquaintance between Fuchius and the plaintiff, that subsequently led to the marriage of the latter to Fuchius’ daughter. Returning to the bond, it is necessary to state that Butler was indicted by the grand jury, and fled for parts unknown. The bond signed by the defendants was declared forfeited and proceedings were instituted on behalf of the government to collect the amount thereof. The defendants thereupon executed an instrument authorizing the plaintiff, who was then a United States deputy marshal, to arrest the escaped prisoner, and to surrender him on their behalf to the government. To effect this purpose some fine detective work was required and the plaintiff obtained the assistance of others to scent and ascertain the whereabouts of the fugitive. He was traced to Boston, thence to Baltimore, thence to Chicago and thence to Philadelphia, where all trace of him was lost. It subsequently transpired that the fugitive’s wife had been arrested in Philadelphia and lodged in Moyamensing jail, and it was supposed that by watching her, communications might be traced to the fugitive.

He was finally discovered, arrested and brought on to New York by the plaintiff, who surrendered him to the government. He was placed on trial, pleaded guilty and was sent to state prison. Upon making the surrender the government canceled the defendant’s bond and released the sureties. For this work, the plaintiff swears that the defendants agreed to pay him $500, and to recover this sum, less $230 paid on account, the present action is brought. Schwend defends on the ground that he never employed tho plaintiff, and never agreed to pay him anything for his services.

E. M. Friend, for pl’ff; Chas. D. Meiz, for def’ts.

Crime would be more speedily checked if it were not for the facility with which professional criminals furnish responsible bail. How they do, it seems a mystery, for it is difficult to understand why two respectable people who would decline to have a business transaction with a criminal, who would not trust him with a dollars’ worth of goods or a reasonable loan of money, will with little hesitation and slight coaxing execute a bond in $2,500 for the criminal’s appearance when wanted in court to stand trial for a crime on which he is already under arrest, yet the defendants did this very thing, and think it hard that they should be called upon now to pay $500 for securing a return of the criminal to justice, and a release from their obligation. The lesson, even at this price is a cheap one, and the expense serves to make it practical.

The services rendered, (when paid for) saved the defendants $2,000, and they should feel grateful at being relieved from the larger obligation, and feel pleased at being called upon to discharge the smaller one instead.

People must be made to understand that bonds and obligations given in courts of justice, are matters of substance, not of form, that when onced signed they must be literally performed or the penalty of the bond made good by the payment over of so much lawful money.

The services performed by the plaintiff, including his expenses, were reasonably worth $500, the sum charged and agreed to be paid. They were indeed valuable to the defendants. They also enabled the government to punish a swindler by imprisonment in a place where he cannot ply his pernicious vocation, and where the unwary cannot be gulled by his arts and wiles. The instrument signed by the defendants authoriziny the capture, proves an employ ment of the plaintiff by the defendants; the payment of thirty-five dollars by Schwend and $195 by Fuchius shows. that they were to pay something for the services.

This certainly contradicts the theory of Schwend that he was to pay nothing. There is no evidence in the case that the government paid anything, or intended to pay anything. In fact, the evidence proves the contrary. The goverment was apparently content with the collection of the $2,500 bond, leaving the recapture of the fugitive to the chances of time and good fortune. But spurred on by the promised $5u0, a ceaseless vigilence was kept up by the. plaintiff and his assistants, which, after the expenditure of considerable money, was rewarded by the fugitive’s capture, return and subsequent punishment.

The acts of the -plaintiff were not performed mrtute officii, but as an individual. No bench warrant had been issued for the capture of the fugitive. The plaintiff acted

p. 715

under a special authorization from the bail to execute for them the right of recapturing their delinquent principal. Barbour, in his work on Criminal Law (p. 505), says: “A party who is thus bailed is still, in supposition of law, in custody of his sureties, who are considered as his keepers, and may, therefore, re-seize to bring him in if they fear his escape, and take him before the justice or court' to be committed, and thus the bail may be discharged from their recognizance.”

The recapture was made by virtue of the power which resided in the defendants as bail, and they in turn delegated this to the. plaintiff by the instrument they executed. The obligation was not exacted by the plaintiff colore officii. but was executed by the defendants voluntarily. It is, therefore, a valid obligation. Upon the entire case, the plaintiff is entitled to judgment for $270, the balance of the promised reward.