Dick v. . Stoker , 12 N.C. 91 ( 1826 )

His Honor, the presiding judge, charged the jury that as the sheriff cannot arrest the principal, a surrender involves in it the putting the principal, by the bail, into the custody of the sheriff; or arresting the principal, and offering him to the sheriff in such manner that the sheriff can secure him. But that if the bail use words importing a surrender, the principal being present, but not so offered to the sheriff, the latter ought at the time to object for that reason, else it will be a good surrender to discharge the bail and charge the sheriff. The judge further instructed the jury that the authority given by law to the bail, to arrest the principal, cannot be communicated by the bail to another by parol; for this purpose a written deputation is necessary, in order that the authority of the agent to arrest, and of the sheriff to detain, may appear with certainty; but that, clearly, if an authority merely verbal be sufficient, (93) it must be a special authority for that particular purpose, and cannot be deduced from a general agency to transact the business of the bail.

The jury, under these instructions, found a verdict for the plaintiff, and a motion for a new trial being made on the ground of misdirection, and overruled, the defendant appealed. If the principal is brought by a stranger, by physical force, and offered to be surrendered to the sheriff, who receives him into his custody against the will of the principal, there is no doubt, I presume, but both the stranger and the sheriff are trespassers, unless the stranger had an authority from the bail to make the arrest and surrender; and that authority should be given by writing at least. But the principal himself may, without the agency or knowledge of his bail, surrender himself, and the sheriff is as much bound to receive him as if surrendered by the bail. When, therefore, the principal comes into the presence and places himself in the power of the sheriff, with an intention of going into his custody, in discharge of his bail, and his purpose is made known to the sheriff, either from his own lips or by the words of another, which he recognizes as evidencing his intention, this amounts to as full a surrender as if the words declaring that intent had issued from his own mouth. The surrender becomes completely his own, and all pretense of charging the sheriff as a trespasser is taken away by his own voluntary act. I call the act voluntary, notwithstanding the moral force which the stranger may have used to induce the principal to accompany him to the sheriff for that purpose, such as persuasion, representations, and the like.

I think that the judge erred in passing over this view of the case, and presenting another, which did not arise until this was disposed of; for the jury must necessarily have understood that the surrender amounted to nothing unless young Culpeper had an authority in writing from his father. There should, therefore, be a new trial.

Judgment reversed.