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People v. Greene

5 Hill & Den. 647 Court N.Y. Sup. Ct. English

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The People vs. E. B. Greene and C. Pixley, impleaded &c.

Headnote

A bastardy bond taken by a justice pursuant to 1 R. S. 643, § 8, conditioned that the putative father shall “ appear at the next court of general sessions &c., and not depart the said court without its leave,” is but matter in pais, like any other deed, and not a recognizance. Per Cowen, J.
Whether the court of general sessions Jias power to make an order, even with the consent of the sureties, continuing the bond in force until a term subsequent to the one specified in the condition, quere.
In an action on such bond the sureties pleaded that their principal appeared at the day specified in the condition, and that the court of general sessions made an order, without the consent of the sureties, postponing the hearing until the next term, by which order the principal was then and there suffered to depart the said court &c.: Held, a good answer to the action, notwithstanding the declaration averred the postponement to have taken place on motion of the principal, and that, at the term, to which the postponement was granted, he departed the court without being discharged.
In an action upon a criminal recognizance conditioned that the accused shall appear and answer &c., a plea that he appeared and was ready to answer is not sufficient. Per Cowen, J.
If the condition be that the accused shall appear <$(C. and not depart till discharged by the court, the eognizors are bound to see that he remains during the term specified to answer any charge other than the one on which the prosecution is founded. Per Cowen, J.
Where the condition is that the accused shall appear to answer tj-c., and not depart the court without leave, appearing and answering at the term specified satisfies the recognizance; a default at the next term will be no breach. Per Cowen, J.
Demurrer to replication. The action was debt upon a bastardy bond taken by a justice of the peace in Broome county, before whom Abraham Greene was brought under a warrant issued in the county of Delaware, charging him with being the putative father. (See 1 R. S. 643, §§ 7, 8.) The defendants E. B. Greene and C. Pixley were sureties in the bond, which was conditioned that the said Abraham Greene, the other defendant, should “appear at the next court of general sessions of the peace to be holden in the county of Delaware, and not depart the said court without leave.” (Id. § 8.) The first count of the declaration averred, among other things, that the next court
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of general sessions in the county of Delaware, after the execu tion of the bond, was on the second Monday of September, 1840, and that Abraham Greene departed said court without being discharged &c. The second count was the same as the first, adding that, during the court of general sessions held at the time and place mentioned in the first count, the said bond, on motion of the counsel for Abraham Greene, was duly continued by a rule of said court entered of record in the book of minutes, until the next term of the court commencing on the second Monday of December, 1840; that the last mentioned term did not end mitil the 19th day of December aforesaid, on which day the said Abraham Greene was called in open court, as were also the said E. B. Greene' and C. Pixley, who each made default &c., whereupon the said bond was estreated; and that the said Abraham Greene departed said court without executing the bond required by the said court, and without being discharged &c.
The defendants E. B. Greene and C. Pixley interposed several pleas, the fifth of which was that the said Abraham Greene did appear at the court of special sessions held in the county of Delaware on the second Monday of September, 1840, according to the condition of the bond &c.; that an order was then made by the said court, without the knowledge or consent of the said E. B. Greene and C. Pixley, postponing the hearing of the matter mentioned in the bond until the next term of said court; and that the said Abraham Greene was, by the order aforesaid, suffered to depart the said court so held on the second Monday of September, without the consent of said E. B. Greene and C. Pixley.
Replication, that the said bond &c. mentioned in said second count, and the hearing of the matter set forth in the bond, was duly continued by the said court on motion of said Abraham Greene’s counsel as stated in said second count, without any opposition, objection or dissent on the part of said defendants or either of them. Demurrer and joinder.
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J. A. Collier, for the defendants.
N. K. Wheeler, for the plaintiffs.

The truth of the plea so far as it applies to the first count is in no part denied; and as to the second count, it is virtually admitted. The result, as to both counts, is, that the putative father appeared on the day and at the place prescribed in the condition; and did not depart the court without leave. It is replied that the sessions continued the bond and the matter to the next term, without any objection &c. by the sureties or either of them. That is no answer. The bond was taken for the putative father’s appearance on his being arrested by virtue of an endorsed warrant out of his county, pursuant to 1 R. S. 650, 2d ed., § 8. It was simply that he should appear and not depart without leave. In respect to such a bond, the power of the court to continue it in force, or in other words, to renew and make it applicable to the next term, in any way, even with the assent of the obligors, may well be doubted. It is not a recognizance; but a thing in pais, like any other deed; and it is difficult to conceive how it can be continued without a new bond. Admitting it to stand on the same footing with a recognizance, and that the plea is the same as the second one in The People v. Clary, ( 17 Wend. 374 ,) the question would be open. That plea was not passed upon. But this plea, beside being in answer to a mere bond, asserts expressly that, after appearance, the principal departed with the assent of the court, and the replication does not deny this. In that case too, there was a condition to abide the order of the court; not so here. There is no clause which, upon any construction, would entitle the court, of itself, to make an order touching the appearance of the principal at any other day than that mentioned in the condition. The decided cases proceed much upon the particular words of the condition; In The People v. Stager, ( 10 Wend. 431 ,) the condition was to appear and answer. A plea that the accused appeared and was ready to ■answer, was held insufficient. Sometimes the condition is that

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he shall not depart till discharged by the court. Then the cognizors are bound to see that he is in court to answer any criminal charge other than the particular one on which the prosecution was founded. (Id.) Sometimes it is to appear and abide some order, when the plea of appearance is not enough, but it must be shown that the order (if any) was obeyed. (The People v. Haddock, 12 Wend. 475 .) In Keefhaver v. Commonwealth, (2 Pennsylv. Rep. 240,) a criminal recognizance was, like the bond in question, conditioned for appearance at the next sessions, to answer &c., and “not depart the court without leave.” An order that the accused should pay the costs was held to be out of the condition. It was farther held that appearing at the term specified and answering, satisfied the condition ; and that a default in not appearing on a call at the term next following, was no ground of action. Gibson, C. J., said, “Recognizances being for appearance at the next, and not at every succeeding sessions, are to be discharged at the end of the term, by committing the prisoners, delivering them on new hail, or setting them at large. But to avoid the trouble of renewing the security, it is sometimes the practice, when the hail consent, to forfeit the recognizance and respite it till the next term, and this answers the purpose perfectly well.” If the terms of the condition be complied with, I apprehend that no court, even in case of a recognizance, can do any thing more against the bail than what is here suggested. In Lyons v. The State, ( 1 Blackf. 309 ,) the condition was to appear, answer to a charge of larceny, and not depart without leave. Plea, appearance, trial, dismission of the jury and discharge of the accused. It was held that afterwards calling him, at the same term, and his making default, would not affect his bail. These cases, and various others, have respect to the words of the condition. And they are in point for the defendants. The plea is full that the putative father appeared, and, so far from departing without leave, went away with the express permission of the court. The condition contains no obligation to do any thing else. It is supposed that the 2 R. S. 654, 5, 2d ed. § 33, enlarges the terms. It provides that the putative father shall not depart the
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court without either executing such bond as it may require, or being discharged by the court. In this <?ase no bond was required at the proper time; but the court sought to extend the terms of the old one by their own act. A demand of a bond at December term was too late. True, the plea does not say that he was discharged in so many words; but it shows enough to make that out in effect. He fulfilled the condition as far as he could; and the. court required nothing farther of him which the bail were bound to see performed.

Judgment for the defendants,

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