People v. Tubbs

The referee has found as a fact that the Defendant, Byron P. Tubbs, the principal, was unahle to appear at the term of the Court at which he was, by the alleged recognizance, bound to appear, and at which, for such non-appearance, the said recognizance was estreated. And also that such inability was by reason of sickness and injuries arising from being thrown from a horse shortly prior to said term of the said Court.

These facts we are not at liberty to question.

The case is before us in a form permitting us to review questions of law only (Code, §§ 272, 268).

There was evidence in support of this finding, and it was competent for the Supreme Court to reverse if the findings were not satisfactory to them upon this point. We have no such power.

The question of law upon this finding is, Does an inability of the principal to appear, “ by reason of sickness and injuries arising from being thrown from a horse prior to the term of the Court,” constitute a defence to an action.upon the Defendant’s recognizance ?

I do not think that this should be regarded as an open question in this State. The recognizance is but a solemn contract. It is made of record, but that does not withdraw it from the general rule applicable to contracts, whether by paroi, in writing, under seal, or in whatever form they are entered into.

In this State it is settled that the act of God or of the law will excuse the non-performance.

As to contracts in general, see Wolfe v. Howes ( 20 N. Y. 197 ) in this Court, affirming the decision of the Supreme Court ( 24 Barb. 174 ), and citing cases, text-writers, and reports from other States establishing the doctrine. The case of a replevin bond—Carpenter v. Stevens ( 12 Wend. 589 ). And as to recognizances in particular, see The People v. Manning (8 Cowen, 297); The People v. Bartlett ( 3 Hill, 570 ); The People v. Cook ( 30 Barb. 110 ).

The inability of the principal to appear, by reason of sickness, is, within these cases, the act of God which excuses, and is a sufficient defence.

The witness answered: “ Mo, sir; I was not able during Court week to go to Morrisville, and could not have gone.”

. It is argued that this was objectionable, because the witness was notan expert, and that it was permitting the witness to determine a question of fact which it was within the province of the referee to determine.

Witnesses are often permitted to testify.in the very terms in which a referee, or the Court, or the jury are to determine an issue— e.g., on an issue touching the making of a note, or the signing of an instrument; if the alleged signer he a competent witness he may testify in terms that he did not sign it, or that the signature is not in his handwriting. Or in an action for an assault and battery, the Defendant, when a competent witness, may be asked, and he may testify that he did not strike the Plaintiff; and the like is true in examples that might be multiplied almost indefinitely. The objection, therefore, that this was the very matter which the referee was to decide, amounts to nothing. He was to decide upon all the evidence hearing on the question, and the witness, in all such cases, may he contradicted, and his testimony he, perhaps, wholly discredited.

Was the evidence ohjectionahle, as calling for the opinion of an. expert ? Mo such suggestion was made on the trial, and if it had been suggested it is possible that the Defendants might have obviated the objection by proof that the witness had every qualification of medical skill and experience which constituted the most thorough expert.

But I apprehend that the question did not call for an opinion. It was addressed to the conscious knowledge of the witness of the extent of his prostration. It added very little to what he

I think the objection was properly overruled.

If these views are correct, the judgment must "be affirmed, whatever our views may be of the sufficiency of the recognizance.

All concur.

Judgment affirmed.

JOEL TIFFANY,

State Reporter.