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cient surrender under a supersedeas bond, see State v. Swedland (1926) Neb. -, 207 N. W. 29.

b. To whom made.

(Supplementing annotations in 3 A.L.R. 196; 15 A.L.R. 1524; and 32 A.L.R. 259.)

In Rachel v. State (1925) Tex. Crim. Rep.-, 277 S. W. 649, it was held that under the Texas statute it was a surrender of the principal by the surety on his bail bond, if the undisputed evidence showed that, while the principal was confined in jail, the surety went to a deputy sheriff and told him that he then surrendered his principal. It appeared that the statute provided that a surety might relieve himself by surrendering the principal to the sheriff in person, or by obtaining a warrant and having him arrested. The court held that if there was any dispute over a surrender to the sheriff of a principal then confined in jail, it was a question for the jury as to whether there was a surrender. And

see Capuano v. Pastore (1924) R. I. -, 125 Atl. 227, cited infra, V.; Com. v. Cambron (1925) 210 Ky. 418, 276 S. W. 113, cited supra, III., as to surrender to jailer.

V. Effect of surrender. (Supplementing annotations in 3

A.L.R. 197, and 32 A.L.R. 259.)

A surrender of the principal to the keeper of the jail discharges the surety, who cannot be affected by any subsequent action of the jailer, such as releasing the principal on his taking the poor debtor's oath. Capuano v. Pastore (1924) — R. I. -, 125 Atl. 227. And see State v. Caruso (Wash.) supra, IV. a.

A supersedeas bond suspending issuance of execution upon conviction of theft carrying a sentence of restitution and Ane, is not satisfied by the surrender of the body of defendant prior to the issuance of such execution and return thereof unsatisfied in whole or in part. State v. Swedland (1926) - Neb. -, 207 N. W. 29.

W. Q. F.

GUS PACCOS, Respt.,

V.

BENJAMIN ROSENTHAL

and

GEORGE CARROLL et al., Appts.

Washington Supreme Court (Dept. No. 1) - January 21, 1926.
(- Wash. -, 242 Pac. 651.)

Bailment, § 25 - liability for return of cash bail to principal.

1. Sureties on a bail bond who acquire as collateral security money advanced by a stranger as cash bail are not liable to its owner for returning it to the principal before demand by the owner.

[See annotation on this question beginning on page 149.]

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(-Wash.-, 242 Рас. 651.)

Bailment, § 254 - interference with property - liability.

4. Interference by a stranger with property bailed does not create a liability to the bailor, unless it in some way injures the property or prevents its return to the bailor.

[See 3 R. C. L. 141; 1 R. C. L. Supp. 774; 4 R. C. L. Supp. 175.]

Trover, § 37

conversion by return

ing bail money to principal. 5. Sureties on a bail bond are not guilty of conversion in returning to the principal, before demand on them by the owner, money advanced to him by a stranger to enable him to secure bail and delivered to the sureties as collateral security.

APPEAL by defendants Carroll from a judgment of the Superior Court for King County (Ronald, J.) in favor of plaintiff in an action brought to recover for alleged wrongful appropriation of money deposited as bail. Reversed.

The facts are stated in the opinion of the court. Messrs. Allen & Griffith, for appellants:

If Carroll returned the money to Rosenthal, plaintiff was not entitled to recover, not having demanded the money from Carroll.

Rembaugh v. Phipps, 75 Mo. 422; Biddle v. Bond, 6 Best & S. 225, 122 Eng. Reprint, 1179, 3 Eng. Rul. Cas. 573; Nelson v. Iverson, 17 Ala. 216; Bacon, Abr. Bailment; Story, Bailm. §§ 104, 105; Kelly V. Patchell, 5 W. Va. 585; Loring v. Mulcahy, 3 Allen, 575; Jensen v. Eagle Ore Co. 33 L.R.A. (N.S.) 681 and note, 47 Colo. 306, 107 Pac. 259, 19 Ann. Cas. 519; Mullins v. Chickering, 110 N. Y. 513, 1 L.R.A. 463, 18 N. E. 377; Sinclair v. Murphy, 14 Mich. 392; Vanzile, Bailm. § 104. Mr. Burton E. Bennett, for respond

ent:

In cases of bailments the delivery, or accounting, must be made to the person entitled thereto, or the bailee will be guilty of conversion.

5 Сус. рр. 201, 202.

Where a creditor seizes property of his insolvent debtor in such a way as to be a principal, he must exercise the same degree of care toward property held by the debtor under a contract of bailment as that to which the debtor was obligated.

Russell v. Union Machinery & Supply Co. 88 Wash. 532, 153 Pac. 341. Where defendant turns money over to his principal without inquiry as to whether he still holds the note, and the principal, on account of having negotiated the same, returns the money to the maker, defendant is liable to plaintiff for the sum he is required to pay as surety.

Jones v. Foreman, 93 Iowa, 198, 61
N. W. 846.
Where the bailee had notice of the

claim of plaintiff, and the bailee nevertheless returns the property to the bailor, he is liable to the plaintiff.

6 C. J. "Bailments," § 113, p. 1150; 3 R. C. L. "Bailments" p. 130; Bolling v. Kirby, 24 Am. St. Rep. 789, also note 801, 90 Ala. 215, 7 So. 914; Hobbs v. Chicago Packing & Provision Co. 98 Ga. 576, 58 Am. St. Rep. 320, 25 S. E. 584; Nanson v. Jacob, 93 Mo. 331, 3 Am. St. Rep. 531, 6 S. W. 246; Varney v. Curtis, 213 Mass. 309, L.R.A.1916A, 629, Ann. Cas. 1914A, 340 and notes, 100 N. Ε. 650.

The evidence shows that plaintiff made demand on defendants for the money. There was no evidence that defendants had notice of plaintiff's claim without a demand. Where there is no evidence warranting submission of the issue to the jury, there is no prejudice in failing to_do so.

La Bee v. Sultan Logging Co. 59 Wash. 341, 109 Pac. 1023; Beseloff v. Strandberg, 62 Wash. 36, 113 Pac. 250; Owen v. Seattle, 64 Wash. 10, 116 Pac. 261; Leland v. Chehalis Lumber Co. 68 Wash. 632, 123 Pac. 1086; Kelly v. Navy Yard Route, 77 Wash. 148, 137 Pac. 444; Lund v. Seattle, 99 Wash. 300, 169 Pac. 820.

Fullerton, J., delivered the opinion of the court:

This is an action by the respondent, Paccos, against the defendant Rosenthal and the appellants Carroll, to recover for the wrongful appropriation of money. mon The facts giving rise to the controversy are, in substance, these: On November 1, 1921, the defendant was arrested on a warrant issued out of the United States District Court, in which bail was fixed in the sum of $500.

The defendant requested the respondent to furnish the bail, and the respondent, in compliance with the request, gave to the defendant's attorney $500 in cash, which the attorney deposited with the court as the money of the defendant as such bail. On January 26, 1922, the defendant was again arrested on a warrant issued out of the same court, in which bail was fixed in a like amount, and he again requested the respondent to furnish the bail. This time the respondent visited the defendant personally when in jail, and, while there, handed him $500, which the defendant deposited in his own name as bail. On February 4, 1922, the defendant was arrested on a warrant issued out of the state court charging him with crime. In this proceeding his bail was fixed at $750. The respondent was called on to furnish bail in this proceeding, and for that purpose handed the defendant $750 in cash. This sum the defendant deposited in his own name in that court as bail. Later on the respondent desired to use the money he had thus advanced, and consulted with the defendant as to the means by which it could be withdrawn. The defendant in turn consulted with his attorney, who suggested that surety bonds be substituted in lieu of the money. It seems that forms of bonds looking to this end were prepared, in which the respondent was named as surety. These, however, he declined to execute, giving as his reason that he could not qualify, as he owned no real property. The defendant then looked elsewhere for sureties, and finally procured bonds executed by the appellants Carroll and one Secord, as sureties. These were accepted by the public authorities in lieu of the cash, and the several sums of money deposited were returned by checks payable to the defendant. It was probably the thought of the defendant that he would be at liberty to return the money to the respondent, but to this the appellants objected, insist ing on the right to retain the mon

ey as security for the obligation assumed by them in executing the surety bonds. The defendant thereupon indorsed the checks and turned them over to the appellants, who subsequently cashed them.

This transaction occurred in the latter part of March, 1922, and some time later the sureties were exoner-' ated from liability on the bonds. After the exoneration of the sureties the respondent made demand upon the defendant and the appellants for a return of the money. His demand being refused, the present action was instituted. Issue was taken on the allegations of the complaint and a trial was had before a jury, resulting in a verdict and judgment in favor of the respondent against the defendant and the Carrolls. The Carrolls appeal.

l tion for jury right to

money.

For the major part, we find no error in the assignments. There was a conflict in the evidence as to who owned the money advanced, and as to whether the appellants had returned it to the defendant, but these were questions for the jury to resolve, and we see no reason for disturbing their findings. The objection that no personal judgment should have been entered against Mrs. Carroll, we, likewise, think is not well taken. She obligated herself personally on the bonds, and it Husband

and wife

liability of

wife for loss of cash bail.

was through the means of these that the money was obtained. If it is the property of the respondent, and if it has not been returned to him by the appellants, or to some one who was authorized to receive it, she is personally responsible for its loss to the respondent. The assignment that the court erred in refusing to grant a new trial is rendered nugatory by the conclusion we have reached on another branch of the case and does not require discussion.

Among the defenses interposed in the answer to the complaint, was the defense that the appellants, as

(-Wash.-, 212 Paс. 651.)

soon as they had been exonerated from liability on the surety bonds and before any demand had been made upon them for a return of the money by the respondent, returned the money to the defendant. Their evidence, admitted without objection, tended to substantiate the defense. There was, however, evidence tending to show that the appellants knew at the time they took it from the defendant, and at the time they returned it to him, that the money had been advanced by the respondent, and was to be returned to him when the purposes of its advancement had been accomplished. On this branch of the case the court gave to the jury the following instructions:

"Now, as to the case against the defendants Carroll, I instruct you that if the plaintiff advanced or loaned the money to Rosenthal for bail, upon condition that the same was to be returned when the cases against Rosenthal were disposed of, and if Carroll received the money and still holds it unaccounted for, or if, having received it, he returned it to Rosenthal with knowledge on Carroll's part at the time of such return that plaintiff had advanced it and was to receive it back when the cases were disposed of, then Carroll will be liable for $1,739.20.

"If, however, the money was never advanced by plaintiff, or even if it was advanced or loaned by plaintiff, yet if Carroll returned it to Rosenthal without knowledge of the fact that plaintiff had advanced it on condition of receiving it back upon disposition of the cases, then Carroll would not be liable.

"The burden of proof is on the plaintiff, and before he can recover against the defendants Carroll he must show by the greater weight of the evidence in the case the following facts:

"(1) That he advanced as a loan to Rosenthal the bail money upon condition that it was to be returned to him when the cases for which bail was given were disposed of.

"(2) That Carroll still holds the money, or that when he paid it over to Rosenthal he did so with knowledge on Carroll's part of the fact that the plaintiff had so loaned it on such condition.

"If plaintiff has satisfied you by the greater weight of the evidence of both the foregoing facts, then he will be entitled to recover from Carroll the amount before stated. If he has failed to satisfy you of either one of the foregoing facts, then he cannot recover any sum against Carroll."

By these instructions, it will be noticed, the jury were told that, if the appellants received the money from the defendant and returned it to him with knowledge that it belonged to the respondent, they were liable to the respondent for it, even though the return was made before any demand had been made upon them by the respondent for it.

The appellants complain of this part of the instructions, we think, justly. Where property is bailed by one person to another, it is not the rule that every person who interferes with the property bailed is liable to the bailor for the property if it is not returned by the bailee. That result can only Bailmentfollow when the in- interference terference in some with property way injures the

-liability.

property or prevents its return; this on the principle that wrongs, to be actionable, must result in injury to the party wronged. Manifestly, we think, if in this instance the respondent loaned money to the defendant for a specific purpose to be returned when the purpose of its loaning was accomplished, and the defendant turned it over to the appellants temporarily, and the appellants returned it to the defendant before any demand was made upon them for its return, the appellants can- return of cash not be liable to the bail to prinrespondent for it. The act caused him no injury. It neither destroyed nor injured the bailed property, nor did it prevent

43 A.L.R.-10.

-liability for

cipal.

the bailee from returning it at the time its return was due. The respondent, in other words, had all of the rights with respect to the mone, after the claimed interference therewith by the appellants, that he would have had, had there been no such interference, and, having lost nothing by it, he can claim nothing because of it. As was said in Nelson v. Iverson, 17 Ala. 216: "It cannot be the law, that if the wayfaring man stop at my house and I extend to him the usual civilities and courtesies of life, feed his horse, and take charge of his baggage, that after I have restored to him his horse and baggage, without notice or demand of the true owner, I should be liable in detinue or any other action for the property thus temporarily in my possession. The application of such a principle, as has been justly remarked, 'would bring about a state of distrust and suspicion tending to destroy the courtesies of life, and to clog the business transactions of society.' Per Underwood, J., dissenting, Pool v. Adkisson, 1 Dana, 122. We take the true doctrine to be this: If the bailee have the temporary possession of property, holding the same as the property of the bailor and asserting no title in himself, and in good faith in fulfillment of the terms of the bailment, either as expressed by the parties or implied by law, restores the property to the bailor before he is notified that the true owner will look to him for it, no action will lie against him, for he has only done what was his duty."

The respondent cites the case of Varney v. Curtis, 213 Mass. 309, L.R.A.1916A, 629, 100 N. E. 650, Ann. Cas. 1914A, 340, as sustaining the rule announced by the trial court. In that case it appeared that one Symonds held bonds for safe-keeping and pledged them, with forged indorsement, to others to secure advancements made to him by those others. The pledgees assigned them to a third person, on

a

the direction of Symonds, who paid to the pledgees the advancements. The court held the pledgees liable; but it did so because the pledgees were without title to the bonds, and because through their act they were lost to the true owner. That the court did not mean to say that the pledgees would have been liable, had they returned the bonds to the pledgor, with mere knowledge that they were not the property of the pledgor, we think, is evidenced by the following excerpt from the opinion: "We are of opinion that the defendants in the case at bar were not guilty of a conversion when they received in good faith the plaintiff's bonds (which they did receive in good faith) as security for the debts due them from Symonds. If they had returned the bonds to the possession of Symonds (with whom they originally found the bonds), on being paid by Symonds the debts due them from him, they would have done nothing more than perform the duty owed by them, as pledgees, to Symonds, as pledgor, in the absence of knowledge of the rights of Mrs. Varney, the true owner."

It is true the court qualifies its more general statement by saying that the pledgees would not be liable, if the bonds were returned to the pledgor without knowledge of the "rights" of the true owner; but a reading of the opinion in its entirety will show, we think, that the court meant by this, knowledge that the indorsement had been forged and that the pledgor intended to deprive the true owner of the bonds.

But we think the instruction wrong when applied to the facts of the present case for another reason. The respondent did not deposit the money with the court as his own, but gave the money to the defendant for the purpose of enabling him to procure bail. There were no special directions given as to the manner of its use for the purpose, and, when the defendant used it as security for bondsmen, it was but using it for the purposes for which

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