#### STATE OF NORTH CAROLINA v. WILLIAM DUDLEY PELLEY, Principal, and CARRIE THRASH DORSETT, Surety, and GEORGE B. FISHER, Surety.

(Filed 17 March, 1943.)

1. Bail § 4—

The conditions of a bail bond are absolute and its purpose is to' make the sureties responsible for the appearance of the defendant at the proper time and not to enrich the public treasury.

2. Same—

The surety on a bail bond is not entitled to relief unless he can show that performance of his undertaking has been rendered impossible or excusable (a) by an act of God, such as death or severe illness of the principal; (b) by an act of the obligee, such as imprisonment within the *685State pursuant to a judgment of a State court of competent jurisdiction; or (e) by an act of the law, such as surrender of the principal to a Federal Court within the State by a prior bondsman or his being sent out of the State by the Governor on requisition.

3. Same—

Upon failure of the principal in a bail bond to appear, due to his detention in another jurisdiction for violation of its criminal laws, this State may, but it is under no obligation to demand his surrender even though it may have prior jurisdiction.

4. Same—

It is not error for the court to fail to hear a motion to relieve sureties on a bail bond before the defendant is called and fails to answer.

5. Same—

. Failure to give notice to defendants of hearing, when judgment absolute was entered against sureties on a bail bond, is not reversible error, where the matter had been continued from time to time for several months and no motion was made to set aside the judgment for excusable neglect. C. S., 600.

Appeal by Carrie Thrash Dorsett and George B. Fisher from Sink, J. at September Term, 1942, of Buncombe.

At the January Term, 1942, of the Superior Court of Buncombe County, a judgment was entered against 'William Dudley Pelley, and from said judgment appeal was taken to the Supreme Court.

The defendant Pelley was released on a bail bond in the sum of $10,000.00, executed 21 January, 1942, by the defendant as principal and Carrie Thrash Dorsett and George B. Fisher, as sureties. The bond was conditioned upon the appearance of the defendant Pelley, at the next term of the Superior Court of Buncombe County, N. C., to be held after the judgment of the Supreme Court of North Carolina was handed down, and then and there to abide the judgment of the Court.

George B. Fisher, being a. nonresident of the State of North Carolina, ■executed the aforesaid bail bond as surety for $2,500.00 cash and deposited said sum with the clerk of the Superior Court of Buncombe •County.

The Supreme Court affirmed the judgment of the Superior Court, on •24 June, 1942. The opinion was certified to the clerk of the Superior Court of Buncombe County and received by said court on 25 June, 1942. Whereupon, the Superior Court of Buncombe County, on 26 June, 1942, issued a capias for the arrest of William Dudley Pelley.

The term of court to which Pelley was compelled to appear, under the terms and conditions contained in his bail bond, began in the Superior 'Court of Buncombe County, N. C., on 27 July, 1942.

*686On the convening of court on 27 July, 1942, the appellants, who are the sureties on said bail bond, and before the defendant Pelley was called, filed a motion for discharge from liability on said bond. Whereupon, the defendant William Dudley Pelley was solemnly called and failed to answer. Sci fas instanter were ordered and issued by the court against the defendant Pelley, and Carrie Thrash Dorsett and George B. Fisher, sureties. The sureties, through counsel, waived service of sci fas and filed an answer, and the cause was continued from time to time until the September Criminal Term, 1942, of the Superior Court of Buncombe County. At the aforesaid term, the cause was heard and judgment absolute entered against the sureties in the sum of $10,000.00, George B. Fisher, however, to be discharged upon the payment of the sum of $2,500.00, and the funds in the hands of the clerk of the Superior Court of Buncombe County, deposited by the said George B. Fisher, were condemned for the payment of said sum. Judgment for the balance, to wit, $7,500.00, was entered against Carrie Thrash Dorsett, and the clerk of the Superior Court of said county was ordered to issue execution against the said Carrie Thrash Dorsett for the collection of said judgment.

In answering the sci fas issued herein, the sureties set up as a bar to the right of the State of North Carolina to forfeit the bond executed by them, the fact that on 24 July, 1942, the said William Dudley Pelley was taken into custody by the United States Marshal for the Southern District of Indiana, for removal to the United States District Court for the District of Columbia, upon an indictment returned 21 July, 1942, charging him with certain offenses; and further, Pelley having announced his inability to furnish bail in that proceeding, Adelaide M. Pelley surrendered him to the District Court for the Southern District of Indiana, on 24 July, 1942, and was permitted to take down the sum of $15,000.00, which she had deposited with the Court as a bond for the appearance of William Dudley Pelley in said Court on 28 July, 1942. The record is silent as to the amount of the bond fixed by the authorities in connection with the indictment in the District of Columbia, which bond Pelley announced his inability to give.

From the judgment entered in the Superior Court the defendants, Carrie Thrash Dorsett and George B. Fisher, appeal to the Supreme Court, assigning error.

Attorney-General McMullan and Assistant Attorney-General Patton for the State.

Claude L. Love for the Board of Education of Buncombe County.

Guy Weaver for the respondent, Carrie Thrash Dorsett.

*687Denny, J.

The appellant, George B. Fisher, failed to file a brief in this Court, as required by Rule 28 of the Rules of Practice in the Supreme Court, 221 N. C., 563. Therefore, upon motion of the Attorney-General and the Board of Education of Buncombe County, the appeal of George B. Fisher is dismissed.

The first assignment of error is to the failure of the court to hear the motion to relieve the sureties of liability before the defendant was called and failed to answer. The second exception and assignment of error is based upon the failure of the court to give notice to the defendants or their counsel of the hearing held at September Criminal Term, 1942, of the Superior Court of Buncombe County, when judgment absolute was entered against the sureties. These exceptions cannot be sustained. The record discloses that this matter was continued from time to time until the September Term of said court, at which term a hearing was held and judgment entered. It will be noted that counsel for defendants at that time, as well as the present counsel for the appealing defendant, made no motion to set aside the judgment herein for excusable neglect. C. S., 600; Bank v. Duke, 187 N. C., 386, 122 S. E., 1; Hill v. Hotel Co., 188 N. C., 586, 125 S. E., 266; Hooks v. Neighbors, 211 N. C., 382, 190 S. E., 236.

The third assignment of error, challenging the correctness of the judgment below, does present the real question involved in this appeal. Has the defendant, Carrie Thrash Dorsett, shown a valid legal reason for her failure to have William Dudley Pelley appear in the Superior Court of Buncombe County, N. C., as provided in her bond? If so, the judgment is erroneous.

An examination of the case of United States v. William Dudley Pelley, Circuit Court of Appeals, Seventh Circuit, 132 Federal Reporter, 2nd Series, 170, discloses that Pelley was tried in the District Court of the United States for the Southern District of Indiana, convicted and sentenced to prison for a term of fifteen years, for offenses committed after he and his sureties executed the bond under consideration on this appeal. Therefore, it follows that the bond in the sum of $15,000.00, for his appearance in the United States District Court for the Southern District •of Indiana on 28 July, 1942, was posted after the execution of the bond in North Carolina. It also appears from the record herein that Pelley was indicted on 21 July, 1942, by a grand jury in the United States District Court for the District of Columbia, and arrested pursuant thereto on 24 July, 1942. However, it will be noted that in the order, dated 24 July, 1942, releasing the $15,000.00 cash bond and directing the delivery of said funds to Adelaide M. Pelley, it was ordered by the Court: “That the said William Dudley Pelley be, and he hereby is, *688remanded to the custody of the United States Marshal for the Southern District of Indiana, pending further order of this Court.”

The appellant herein, Carrie Thrash Dorsett, is not entitled to the relief she seeks unless she can show that the performance of her undertaking has been rendered impossible or excusable (a) by an act of God; (b) by an act of the obligee; or (c) by an act of law. Where the principal in a bail bond dies before the day of performance or is prevented by illness from appearing, the case is within the first category. Where the principal in a bail bond is in prison within the State, pursuant to a judgment of a court of competent jurisdiction of the State, the case comes within the second category. S. v. Eller, 218 N. C., 365, 11 S. E. (2d), 295; 6 Am. Jur., sec. 139, p. 102. Where the party has been turned over to the Federal Court within the State by a prior bondsman and is serving a sentence imposed by that Court; or if the party has been arrested in the State where the obligation is given and sent out of the State by the Governor upon requisition from another State or other foreign jurisdiction, the case falls within the third category. S. v. Welborn, 205 N. C., 601, 112 S. E., 174; U. S. v. Marrin, 170 Federal Reporter, 476; 6 Am. Jur., sec. 140, p. 103; 8 C. J. S., sec. 77, p. 148.

The appellant herein contends that it was the duty of the State of North Carolina to demand the surrender of Pelley by the Federal authorities to the North Carolina court, on the theory that the North Carolina court had prior jurisdiction. She contends that her principal was prevented from making his appearance in the court below by reason of the failure of North Carolina, the obligee, to assert its right to his custody. The position is untenable. Upon the execution of the bail bond, William Dudley Pelley was delivered into the custody of his sureties. The very purpose of the bond was not to enrich the treasury of Buncombe County, but to make the sureties responsible for the appearance of the defendant at the proper time. In the case of United States v. Marrin, supra, the defendant was released on a bail bond for his appearance in the District Court of the United States for the Eastern District of Pennsylvania. While Marrin was out on bond he went to New York, where he was arrested, convicted upon charges of forgery and grand larceny and sentenced to a term of imprisonment of fifteen years in Sing Sing. The surety on the bail bond in Pennsylvania raised the same question as to the duty of the United States Court to have requested the custody of the principal. The Court said: “Though the United States attorney was present at the hearing, his failure to request Marrin’s release was no such act of the obligee as to relieve the surety, because non constat that the request would have been granted by the court. .It was Marrin’s own act in going into that jurisdiction that rendered his appearance impossible. Our attention has not been called *689to any ease bolding tbat under any circumstances tbe prosecuting attorney of a district in wbicb tbe recognizance runs is required to make an effort to secure tbe removal or release of an alleged criminal arrested in another jurisdiction.- He may do so, but be is not required to act. Tbe recognizance is taken to secure tbat very result. Its condition is absolute in tbis regard, and, in our judgment, it would be a very dangerous innovation to require tbe government to not only see to it tbat responsible bail is secured, but, in addition, required it to keep its prosecuting officers in readiness to appear in other and distant jurisdictions to aid tbe principal in tbe recognizance to extricate himself from an arrest from wbicb alone tbe latter is to blame.”

We come now to tbe question whether or not Peiley’s imprisonment under a sentence imposed in another jurisdiction is such an act of law as to release tbe appealing surety from liability on her bond. Tbe answer is “No.”

In tbe case of United States v. Van Fossen et al., Case No. 16,607, 28 Fed. Cas., 357, William S. Dunn, as principal, and tbe defendants, as sureties, executed a bail bond for tbe appearance of Dunn in tbe United States District Court for tbe District of Kansas.- Dunn failed to appear at tbe term specified. After tbe execution of tbe bond, Dunn went beyond tbe jurisdiction of tbe United States District Court, into tbe State of Missouri, where be committed tbe crime of grand larceny, for wbicb be was duly indicted and convicted in a Missouri Court and sentenced for a term of six years in tbe State penitentiary. Tbe sureties there, as in tbe instant case, sought to be released from the penalty of their bond by reason of- tbe imprisonment of their principal in a foreign jurisdiction. Tbe Court said: “Tbe United States and tbe State of Missouri are wholly distinct parties, and tbe action of tbe state authorities cannot be imputed to tbe Government of tbe United States as an obstruction or interruption by it to tbe performance of tbe condition of tbe recognizance. It is therefore plain tbat there is no act of tbe obligee wbicb excuses tbe default of tbe principal obligor. Hence, tbe defense pleaded must rest upon tbe proposition tbat tbe performance was excused by tbe act of tbe law. Tbis makes it necessary to consider what is an act of tbe law, in tbe sense of tbe rule. ‘There is a diversity/ said Brian, G. J., ‘where a condition becomes impossible by tbe act of God, as death, and where by a third person (or stranger), and where by tbe obligor, and where by tbe obligee; tbe first and last are sufficient excuses of forfeiture, but tbe second is not; for in such case, tbe obligor has undertaken tbat be can rule and govern tbe stranger, and in tbe third ease, it is bis own act.’ Yin. Abr. tit. ‘Condition/ G. C., pi. 19, quoted by Nelson, C. J., in People v. Bartlett, supra. A distinction is, in my opinion, to be observed between .the act of .the law, -proper, and tbe act *690of the obligor, which exposes him to the action and control of the law. The facts pleaded by the sureties show that their principal was prevented from appearing, not by an act of the law, properly viewed, but by reason of his own voluntary act, which rendered him amenable to the criminal laws of another jurisdiction. There would be no one so bold as to claim that the principal should be allowed to set up, as a defense to this recognizance, that he had thus been prevented from appearing; and the sureties are so far bound up with their principal, that they must show that he had a sufficient excuse for not keeping the condition of the bond. The case stands thus: The United States had the actual custody of the principal, to answer an indictment which had already been preferred against him. Upon the recognizance being taken, the principal was delivered into what Blackstone calls the ‘friendly custody’ of his sureties, instead of being committed to prison. 4 Bl. Comm., 301. They henceforth became invested with full authority over his person. They are his jailers. They may take him at any time or place; in the state, or beyond it. They are aptly said to have the principal always upon the string, and they may pull it when they please, to surrender him in their own discharge. 6 Mod., 231. If they do not exercise their power to prevent his going beyond the jurisdiction, and he does so, with or without their consent, and commits an offense, and is sentenced to prison for it, this cannot be accepted by the state in whose tribunals the recognizance was taken, as a defense thereto. . . . Other considerations arising out of the peculiar relations of the state and general government, tend to vindicate the correctness of the view that the defense must be held insufficient. The general government and the several states have their separate criminal codes. If a person is in the actual custody of the United States for a violation of its laws, no state can by habeas corpus, or any other process, take such person from the custody of the federal tribunal or officer. So, on the other hand, a person in custody under the process or authority of a state, is, by express enactment, beyond the reach of the federal courts or judges. Judiciary Act, sec. 14; Act March 2, 1933, sec. 7; 4 Stat., 634; Ex Parte Dorr, 3 How. (44 U. S.), 103, 105; U. S. v. French, supra (Case No. 15,165); Ex Parte Forbes (Case No. 4,921). When the State of Missouri arrested Dunn for an offense against its laws, there was no power in the United States Government to take him from the custody of the State, and subject him to trial and punishment for his prior violation of the laws of the United States. Not only so, but the principle would be the same if Dunn had remained in Kansas, and had been in the custody of that State for an offense against its laws — he would be beyond the reach or process of the federal courts, though sitting in the same district. In the exercise of their respective systems of criminal jurisprudence, neither *691tbe state nor tbe United States could admit tbe sufficiency of sucb a defense as is bere pleaded. In tbis case, Dunn was indicted for an offense against tbe general government, of a bigbly penal nature. It is punished mueb more severely than tbe offense for wbicb be was subsequently convicted -in Missouri; and if tbe defense bere insisted on were to prevail, a defendant guilty of a grave offense, would be allowed tbe opportunity of evading or postponing punishment therefor, by giving bail (who incur no liability) and then committing, against another jurisdiction, a lesser offense, and submitting himself to its actual custody. Neither a state nor a federal court can be expected to recognize as law, a principle wbicb is attended with sucb consequences, and wbicb not only defeats justice, but has a tendency to encourage tbe commission of crime.”

Tbe Circuit Court of Appeals, Eighth Circuit, in the case of Weber v. U. S., 32 Federal Rep., 2nd Series, 110, speaking on tbis identical question, said: “Put, as an act of grace, we consider whether 'Weber is at all aided by tbe facts stipulated. We think it too plain for argument that be is not, and bold that tbe incarceration of tbe principal in a different jurisdiction for a second and different offense against tbe laws of that jurisdiction, even where tbe principal is prevented from appearing to answer bis bail by sucb incarceration, does not exonerate tbe surety. Tbis view is fortified by tbe great weight of authority, both in state and federal courts. In fact, tbe cases seem to be practically unanimous in so bolding. S. v. Horn, 70 Mo., 466, 35 Am. Rep., 437; United States v. Van Fossen, Fed. Cas. No. 16,607, 1 Dill., 406; Devine v. State, 5 Sneed (Tenn.), 623; Taintor v. Taylor, 36 Conn., 242, 4 Am. Rep., 58; United States v. Marrin (D. C.), 170 F., 476; Mix v. People, 26 Ill., 32; Yarborough v. Commonwealth, 89 Ky., 151, 12 S. W., 143, 25 Am. St. Rep., 524; Adler v. State, 35 Ark., 517, 37 Am. Rep., 48.” See also Taylor v. Taintor, 83 U. S., 366; 21 L. Ed., 287; 6 Am. Jur., sec. 140, p. 103; and 8 C. J. S., sec. 77, p. 148.

Tbe surety appealing herein bad from 24 June, 1942, until 24 July, 1942, to obtain actual custody of her principal and bring him back to North Carolina, after tbe Supreme Court had affirmed tbe decision of the court below, and before be was arrested in Indiana. On'this point, tbe Supreme Court of tbe United States, in tbe case of Taylor v. Taintor, supra, said: “Tbe shortness of tbe time that intervened between tbe arrest in New ..York and tbe imprisonment in Maine on tbe one band, and tbe failure and tbe forfeiture in Connecticut on tbe other, are entirely immaterial. Whether tbe time were longer or shorter, one year or one day, tbe legal principle involved is tbe same, and tbe legal result must be tbe same. If McGuire bad remained in Connecticut be would probably not have been delivered over to tbe authorities of Maine, and would not, therefore, have been disabled to fulfill tbe condition of bis *692obligation. If tbe demand bad been made upon tbe Government of Connecticut, be might properly bave declined to comply until tbe criminal justice of bis own state bad been satisfied. This right, it is not to be doubted, be would bave exercised. Had be failed to do so, tbe obligation of tbe recognizance would bave been released. Tbe plaintiffs in error are in fault for tbe departure from Connecticut, and they must take tbe consequences. But their fault reached further. Having permitted their principal to go to New York, it was their duty to be aware of bis arrest when it occurred, and to interpose their claim to bis custody. Alguire v. Com., 3 Bl. Mon., 349, 351. "We bave shown that when McGuire was arrested in New York tbe original imprisonment, under tbe information in Connecticut, was continued; that the bail bad a right to seize him wherever they could find him; that tbe prosecution in Connecticut was still pending, and that tbe Superior Court having acquired jurisdiction, it could neither be arrested nor suspended in inviium by any other tribunal. Though beyond tbe jurisdiction of Connecticut, be was still, through bis bail, in tbe bands of tbe law of that state, and held to answer for tbe offense with which be was charged. Had tbe facts been made known to tbe executive of New York by tbe sureties at tbe proper time, it is to be presumed that be would bave ordered McGuire to be delivered to them and not to tbe authorities of Maine. Tbe result is due, not to tbe Constitution and law of tbe United States, but to their own supineness and neglect. Under tbe circumstances, they can bave no standing in court to maintain this objection. Tbe act of tbe Governor of New York, in making tbe surrender, was not Tbe act of tbe law’ within tbe legal meaning of those terms; but in view of tbe law was tbe act of McGuire himself. He violated tbe law of Maine, and thus put in motion tbe machinery provided to bring him within tbe reach <}f tbe punishment denounced for bis offense. But for this that machinery, so far as be was concerned, would bave remained dormant. To bold that tbe surrender was tbe act of tbe law, in tbe sense contended for, would be as illogical as to insist that tbe blow of an instrument used in tbe commission of a crime of violence is tbe act of tbe instrument and not of tbe criminal. It is true that in one case there would be a will and purpose as to tbe result in question, which would be wanting in tbe other, but there would be in both, tbe relation of cause and effect, and that is sufficient for tbe purposes of the analogy. Tbe principal in tbe case before us cannot be allowed to avail himself of an impossibility of performance thus created; and what will not avail him cannot avail bis sureties. His contract is identical with theirs. They undertook for him what be undertook for himself.”

It matters not whether Pelley left tbe jurisdiction of this State with or without tbe permission of bis sureties, be was entrusted to their *693custody. His conduct while in their custody set in motion the machinery of the law in other jurisdictions which made his. appearance in Buncombe County, N. C., on 21 July, 1942, impossible. Had Pelley not committed the offenses for which he was tried and convicted in Indiana, and for which he is now imprisoned, he doubtless could have answered to the call of the Superior Court in Buncombe County, N. C., at the proper time. He alone is responsible for his inability to appear in the North Carolina court at the time required in his bail bond. He cannot avail himself of his own wrong and thereby escape the penalty of his bond; and, as stated in Taylor v. Tainior, supra, “What will not avail him, cannot avail his sureties.”

Appellant is relying on the case of S. v. Welborn, supra. The case is distinguishable. The sureties on Welborn’s bond were released because Welborn was surrendered by his bondsmen for his appearance in Federal Court in this State. The Federal bail bond had been executed prior to the execution of the bond in the State court. The defendant Welborn was surrendered by his sureties, who had the right to surrender him. Further, there is no evidence that Welborn ever left the jurisdiction of the North Carolina court. When North Carolina took-Welborn’s bond he was in the technical custody of a Federal Court having jurisdiction in this State. These and other distinguishing facts render that case inapposite, and, therefore, not controlling.

Whether or not the Federal authorities, before Pelley’s trial and conviction in the United States District Court for the Southern District of Indiana, would have recognized the superior right of Pelley’s sureties to his custody, in order that he might appear at the appointed time in the North Carolina court, had they made a request for his surrender to them, we need not consider; since, according to the record, no request was made by them to the Federal authorities for his return to North Carolina.

It is indeed unfortunate for the appealing surety herein, but, when she executed the bail bond for Pelley, she undertook to answer for one who by his own conduct prevented the fulfillment of his obligation. For his default she obligated herself to pay the penalty in the bond.

The judgment below is

Affirmed.