Joseph P. Bradley

“ Are the sureties subrogated to the rights of the United States? The general right of sureties, when paying the debt of their principal, to be subrogated to the rights of the creditor, whether as a mortgagee, pledgee, or holder of a judgment or execution, or any other security, has been so often and so fully discussed that nothing further need be added on that subject. ”

“ If it was intended by congress to enlarge the scope of the section so as to include other bonds than those given for duties, (as seems to be the necessary inference from the language,) still, it is restricted to 'bonds:' the words are 'whenever the principal in any bond given to the United States is insolvent,' etc., and any 'surety on the bond' pays the money due upon 'such bond,' such surety shall have the like priority, etc., and may bring and maintain a suit upon 'the bond' in his own name, etc. ”

“ The rule of subrogation in favor of sureties to prerogative rights and remedies of the crown seems to be confined to cases of crown debtors, such as collectors, receivers, accountants, and other fiscal officers, and persons bound for customs duties, excise taxes, and other civil duties. We have not been able to find any English case in which it has been applied, or allowed, in favor of bail in a criminal proceeding. ”

“ It has even held that the law raises no liability on the part of the person bailed to indemnify his bail for what they have been compelled to pay on their recognizance by reason of his default. It is said in Highm. Bail. 204, 'if a principal do not appear, and the recognizance be forfeited, and paid by the bail, yet the principal shall remain open and liable to the law whenever he can be taken, for the penalty in the recognizance is no other than as a bond to compel the bail to a due observance thereof, and has no connection with the principal ”

“ The revisers would not have proposed, nor would congress have made, such a fundamental change in the law as the extension of this provision to criminal cases, without employing more appropriate terms for that purpose than those which the section contains. ”