People ex rel. Van Aken v. Millham

Learned, P. J.: The conversation in regard to the bond, had between the counsel, cannot affect the liability of the absent surety. Nor can it affect the liability of the surety who was present. He was not a party to [153] the proceeding. The counsel who spoke was not his counsel. Nor could he be required to object to any statements by the counsel, of the legal effect of the bond. The case of People v. Jayne (27 Barb., 58) holds that a bond conditioned to appear on a certain day and not depart without leave, is valid ; and also that such a bond is broken, it tire accused person departs during that day and before the final decision. It decides nothing on the question whether^ if the justices make another adjoui’nment to a day some three weeks distant, the sureties are bound to produce the accused at that time. So the case of People v. McCoy (39 Barb., 73) decides that a recognizance to a term of the Oyer and Terminer requires the party to be present at any time during that term before his case is disposed of. Such a recognizance, unlike the present bond, requires him to abide the decision of the Court. But the case does not decide-that such recognizance binds him to appear at another term. (People v. Greens, 5 Hill, 647.) The obligation of these sureties cannot be extended beyond the language of the bond. They bound themselves that their principal should be before the justices on a certain day and should not depart without their leave. He was there that day and the whole of that day, and he departed with their, leave. ' He performed the condition. So in the case of People v. Greene (ut supra), the bond was to the Court of Sessions. The accused party appeared. The Court assumed to continue the bond, and the matter to the next term. It was held that the sureties were not liable. 'If the justices can adjourn a proceeding of this kind and continue the obligation of the sureties, then the sureties are bound to produce the accused at a day on which they never undertook to have him present. It is said that the leave to depart was conditional. The condition, if any, was' that the accused should promise to appear on the twenty-eighth. But the sureties did not promise to produce him. The judgment should be reversed, new trial granted, costs to abide event. Present — Learned, P. J., and Boardman, J. Judgment reversed, new trial granted, costs to abide event.