People v. Swales

The action is upon a bond given by the said Joseph G. Swales .as principal, and the other appellants as his sureties, dated 27th June, 1878, and conditioned that the said principal would appear at the •next Court of General Sessions of the Peace, to be held in the •county of Monroe, and not depart the said court without leave. The first term of that court’ after the execution of the bond commenced 9th September, 1878. The next term thereafter com*209menced 11th November, 1878, and continued until 2oth January, 1879, on which day, the said principal having failed to appear on being called, the bond was declared forfeited and an order was ■entered to that effect. The bond was given in bastardy proceedings on an appeal taken by said principal from an order of filiation made by two justices of the peace. After the commencement of the November term the principal had appeared in the Court of Sessions, his appeal had been heard, and the court had made an order modifying the order of the justices by reducing the amount which the principal was required to pay weekly for the support of the bastard child, and in substance affirming it as modified, and requiring him in open court to give the proper bond for the support of ■said child, etc., as required by statute.

The judge who tried this action found that Swales appeared at the next ternl of the said Court of Sessions after the execution of the bond, and departed the said court without its leave; and he ordered judgment against the defendants for the amount of the penalty of the bond. All the defendants appeal.

It appears by the record book that the September term of said Court of Sessions was adjourned to the day on which the November term commenced, and the theory of the plaintiff is understood to be, that by such adjournment the September term was carried into the November term, and was thereafter kept in life by virtue of the successive continuances of that term, until it was finally adjourned on the day when the bond in suit was forfeited. We áre not prepared to assent to that position. The obligation of the defendants, by the terms of their bond, did not extend beyond the next term of the court. We think that term necessarily ended when the' term next succeeding it began. We do not understand how a court, consisting of only a sufficient number of judges to hold a single term, can hold two terms at one and the same time. If ■such a court has power to keep each of its terms in life, by tacking it to the next succeeding term, every term might be continued indefinitely by that process, and thus the obligation of parties to a bond like the one in suit might be prolonged till the court ceased to exist. The terms of the courts .of sessions are required by law to be appointed and published in advance. The parties to the bond are presumed to have had such appointments in view when they *210assumed its obligations. Had tbe September term failed, tbe court would have bad power by statute to act in tbe case at tbe next term witb the same effect as it could have done at tbe September term if it bad been held. (Code of Civil Pro., § 14.) Tbe same section gives tbe like power when a term of court is adjourned, or the place of bolding tbe same is changed, as prescribed in tbe first chapter of the Code, of which tbe section is a part. But tbe present case is not one of those thus provided for. (See sections 36 and 41 of tbe Code.) If tbe case bad been within those provisions, the-parties would have been deemed to have contracted witb reference to them, and upon that ground tbe judgment could have been sustained. But in tbe circumstances, tbe effect of the judgment is to> extend tbe obligation of tbe sureties to tbe November as well as-the September term. Into that engagement they did not enter. So far as tbe sureties are concerned, their contract is strictissimi juris, and as to its extent is to be strictly construed.

In The People v. Greene (5 Hill, 647), Coweh,*!., speaking of at similar bond, said: “ The power of tbe court to continue it in force,, or in other words, to renew and make it applicable to tbe next term, in any way, even with tbe 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 bow it can be continued' without a new bond.” And be cited Keephaver v. Commonwealth (2 Pa. R., 240) in which Gibson, C. J., said: “ Becognizances being for appearance at the next, and not at every succeeding session, are to be discharged sit tbe end of tbe term, by’committing tbe prisoners,. delivering them on new l>ail, or setting them at large. But to avoid the trouble of renewing tbe security, it is sometimes the practice, when the bail consent, to forfeit tbe recognizance and respite it till tbe next term, and this answers the purpose perfectly well.”

If we are right in bolding that tbe September term ended when tbe November term commenced, tbe finding of tbe trial judge that at the next term, after tbe execution of tbe bond, Swales departed from tbe court without leave, is without evidence to support it, and there has been no forfeiture of tbe bond.

Tbe principal is released as well as tbe sureties. True, be came into court at the November term and proceeded to the trial of his-appeal, and after the trial was ended be failed to appear. Hñdoubt*211edly, as be submitted himself to the jurisdiction of the court, at that time, he was amenable to the judgment which the court pronounced, and he might have been proceeded against by attachment, or other appropriate remedy, for failing to obey the judgment, but he did not thereby become liable on his bond, the obligation of which expired with the September term.

The judgment should be reversed, and as the facts cannot be changed, a new trial.would be useless, and judgment should be ordered dismissing the complaint.

So ordered.