Ainsworth v. Territory

delivered the opinion of the court.

This is an action brought by the territory on a bail bond, in which the territory is the obligee, and the defendants are the obligors. The bond itself is in the usual form of a common-law bond.

Hon. Judge Wingard was the presiding judge of the *276court in which the indictment was found, and at which the order of commitment was entered against one of the defendants who was indicted, in default of his giving bail for his appearance, at said court from day to day and from term to term. In default of such bail, on a warrant upon said order of commitment, the sheriff of Spokane County was holding the prisoner in confinement. The said term was the regular October term of the District Court for Spokane County. The judge was not only a presiding judge for this court, but also of several other courts of the First Judicial District. This October term of court was adjourned to meet again on the first Monday of February, and in the mean time the judge went to Walla Walla, his place of residence, and the place where he held court at chambers for the whole district, including Spokane County. While there the attorney for the defendant prepared and offered to him for acceptance and approval the bond in question. The judge approved it and filed it with the clerk of said court. At the time Judge Wingard, at chambers, approved the bond at the instance of the defendants, he made an orner that the prisoner be discharged, which was also sent to the clerk of said court. Upon learning of this proceeding of the judge, and that the order and bond were filed with the clerk, and upon faith that the bond was a good bond, the prisoner was released and went into the possession of his bondsmen. Judge Wingard returned and continued the session of the court, and the prisoner being called, and the other defendants, in due form, and making no appearance, the court caused the default to be entered and bond forfeited.

The defendants claim that after the prisoner was held by the sheriff, that the sheriff alone could accept bail, and that the action of Judge Wingard in accepting and approving the bond was void. If this were so, if the sheriff found the bond which was left with the clerk with intent that it should be delivered, did upon the faith that *277it was a good bond release tbe prisoner on account thereof, then this was an acceptance and approval by the sheriff by implication. We are satisfied, however, that by virtue of his office, a judge of a criminal court of record in vacation can accept a bail bond for the territory. Particularly is it so under our statute, which authorizes the judge at chambers to hear and determine any subject-matter which can be decided without a jury. (Code, secs. 2138, 2139.)

The next error claimed is, that the defeasance in the bond is more onerous than the statute permits as to bail bonds. We think that this is true. Defendants infer that this vitiates the bond itself. Decisions have been read that sometimes and in some circumstances courts have held a bail bond was void on this account. There could not have been any such plea made at common law in an action for debt upon a bond, yet the common law is the rule of decision in this territory.

'.Duress could have been pleaded. It was probably upon what was considered duress that bonds have been held void, because the same were more onerous than the law permitted. There is no such plea in this case, and no evidence to support such a plea. The evidence shows that without request or demand from any one, defendants inserted these conditions on their own motion, and did it voluntarily. The permission that the defendants may insert lawful conditions, and add unlawful ones if they choose, is not contrary to public policy. The court would not probably enforce a condition unauthorized by law thus inserted, and the court did not forfeit this bond for any breach of such conditions, nor is suit brought on account of the breach of any unlawful conditions. The defendant claims that one of the unlawful conditions was that the prisoner should appear at said court on the first Monday of February.

The judge presided over many courts of separate jurisdiction, of which this was one. No term of court of *278the same territorial jurisdiction intervened between the sitting of the court in October and February. No term of court had been adjourned, — only the sitting of the same term had been adjourned; hence a trial by jury could have been had at the time the bond was forfeited. Had this not have been so, we know of no plea which could have been made to the sufficiency of a bond on that account, and no authority has been cited that so holds.

It is claimed-that the territory is not the real party at interest. The territory is a municipal corporation and government, representing all the people within its borders. The county of Spokane is an agency of the territory to carry on certain functions of government. Neither the territory nor county are the real party in interest; but the inhabitants are. The territory by statute is authorized to accept and collect these bonds for the use of the people, and is a trustee of a trust expressed by statute.

It is claimed that there is no evidence that the bond was declared forfeited by a proper court, for that the journal had not been signed by the judge. Such signature is unnecessary to make journal entries valid. If it were necessary, the journal was signed at the end of the term by the presiding judge.

The authorities cited that recognizances can only be taken in term time refer exclusively to recognizances of record. Our statute would permit -the judge at chambers even to take these. Our statute provides that several officers may take bail who have no records, and among them are magistrates. This class of bail is by deed, sealed, signed, and delivered; the bail bond here is bail by deed; Judge Wingard was a magistrate.

It is not doubted that the statutes might by express terms or by implication prohibit bail by deed; but our statute by necessary implication commands such bonds to be taken. It was unnecessary to invoke section 749 of the Code.

*279The real act containing that provision is an act entitled “An act to regulate the practice and proceedings in civil actions in the District Court.” This title is not broad enough to include bonds not used in the practice and proceedings in the District Court in civil actions. The section refers to such proceedings and bonds taken therein, and to none other. The statute has another provision for bonds in criminal proceedings. (Code, sec. 1167.) It is not necessary to invite the aid of this .section, for this bond is a sufficient one without the aid -of either section.

Judgment is affirmed.

Greene, C. J., and Hoyt, J., concurred.