People v. Hainer , 1 Denio 454 ( 1845 )

By the Court, Bronson, Ch. J.

It will not be necessary to examine the special pleas, for I think the declaration, bad. It shows no breach of the condition of the recognizance. The condition was, that Everson should appear at the next court of general sessions, which was held in September, 1843; and it is not alleged that Everson did not appear at that time, or that any order of the court was then made which he has neglected to obey. The district attorney relies on a default nine months afterwards, in Juñe, 1844, to which time it is said the recognizance was “ respited and ’ continued.” The pleader has not told us what he means by those words. After a default in appearing at the time mentioned in the recognizance, the estreating of it into the exchequer for the purpose of collecting the money is sometimes respited until a future day; and if the party appears at that time and abides the order of the court, the forfeiture previously incurred is not enforced. But if there is a second default, the recognizance is then estreated. In this state, where a suit on the recognizance has taken the place of the former estreat into the exchequer, if the .party do not appear pursuant to the terms of the recognizance, the order for a suit is sometimes respited or delayed until a future day; and then if the party makes default, a suit upon the recognizance is ordered and brought. But in that case the pleader need take no notice of the respite; but should allege for a breach the original default, or the non-appearance at the time mentioned in the recognizance. When a suit is thus delayed, the party is not. bound by the recognizance to appear at the adjourned day; but he appears at that time to save the consequences of a forfeiture already incurred.

This question might have been made in some of the cases cited at the bar; but it was not done. The question is now made; and I am unable to see how a neglect to appear in June, 1844, can amount to the breach of an obligation to appear in September, 1843. .

Everson was bound, not only to appear and answer the indictment, but to “ obey the order and direction of the said court therein.” Under this clause the court might, perhaps, have made an obligatory order that Everson should appear and answer at a future day. But it is not averred that any such order was made.

Judgment for defendants.