Osbourne v. State ex rel. Parran , 10 G. & J. 1 ( 1838 )

Dorsey, Judge,

delivered the opinion of the court.

The only question which we are required to determine in this case is, does the appearance of the insolvent petitioner at a day subsequent to that specified in the bond for his appearance, but during the same term of the county court, operate in law as a performance of the condition of the bond. Those clauses in the acts of assembly of 1805, ch. 110; 1807, ch. 150; and 1808, ch. 71; under which the appearance bonds of insolvent debtors are taken, prescribe no time or times, at which the appearance of the insolvent is to be made, but leave it to the discretion of the county court, or the judges thereof. The first, the last, or any intermediate day of the term, may be selected. There is nothing in the nature of the bond, or the expressions used in it, that would justify the court in giving to it a construction, inconsistent with its express, unequivocal import. If, as has been urged, the day of appearance so explicitly directed in the bond, is to be modified and changed by the legal fiction, (adopted for some purposes) which makes the proceedings of the court relate back to the first day of the term, which is therefore regarded as if but one day’s duration, so as to mean any subsequent day of the term, with the same propriety had the day of appearance been fixed for the fourth day of the term, it might be insisted that an appearance on the first day of the term, would be a performance of the condition of the bond. By authorizing the court, or judge, as the case might be, to direct the time when the insolvent should appear to answer the allegations of his creditors, the legislature designed that the appearance should take place on the day appointed, and not at any subsequent day of the term. But it is insisted, that the bond for the appearance of an insolvent, is in effect the same as a bail bond, the forfeiture of the latter of which, it is asserted, is saved by an appearance at any time during the term. For this assertion as to a bail bond no authority has been referred to, and from the constant habit of our courts, to forfeit recognizances, where the recognizors do not appear, when called at the commencement, or any other period of the term, it is not so certain that any such authority could be found. But be this as it may, it would not affect our opinion in the case before us. The condition of the ordinary bail bond, differs in terms from that now before us, in reference to the question now under consideration. The condition of the bail bond is, that the principal obligor make his personal appearance before the - county court to be held at —-on the-day of-next, (stating the day, month, and place, prescribed for the meeting of the court.) To such a bond it might with some plausibility be contended, that the statement of the day and place was not inserted, as fixing the time and place at which the appearance was to be entered, but as descriptive of the time and place of holding the county court, at which the party was bound to appear; and consequently, that an appearance on any day of the term would be a compliance with the condition of the bond. But the time specified in the condition of the bond before us is an explicit designation of the day for the appearance of the insolvent, and cannot be regarded as merely descriptive of the term of the court by designating the day of its commencement. The condition of the bail bond herein before stated, is substantially conformable to those ordinarily used in Maryland, a precedent for which may be seen in 1 Har. Ent. 17. It is true, that in 1 Evans’ Har. Ent. 49, we find a precedent for the condition of a bail bond as regards the time for the parties’ appearance, identical with the insolvent’s bond in question; but we are not aware that it has been followed as a precedent for bail bonds in Maryland, and we feel well assured, if it has, that it has never judicially received that interpretation, which has been assumed for bail bonds in the argument of the counsel for the appellant in this cause.

Concurring with the county court,

judgment affirmed.