
    People v. Hammond et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    October 19, 1889.)
    1. Bail—Forfeiture—Advice of Counsel.
    Where it appears that accused was present in court at the time he had given bail for his appearance; that in response to the inquiry of counsel the district attorney stated that he would not move the indictment against accused at that term; and that thereupon accused, on the advice of counsel, induced by the statement of the district attorney, left the court,—there is no forfeiture of bail, though it is contended that the statement did not necessarily relate to the indictment in question, but to another then pending against accused.
    3. Same—Acknowledgment—Release of Surety.
    Where the sureties in a bail-bond, in which accused is principal, duly acknowledge the bond and justify as sureties, failure of the principal to acknowledge the bond will not affect the sureties’ liability.
    Appeal from special term, Livingston county.
    Action by the people of the state of New York against Amariah Hammond and others to enforce an alleged forfeiture of bail. The complaint was dismissed, and an appeal was taken by the people.
    Argued before Barker, P. J., and Dwight and Maoomber, JJ.
    
      George W. Daggett, for the People. F. O. Peek, for respondents.
   Macomber, J.

One of the original defendants to this action, Amariah Bradner, was indicted at the oyer and terminer held in Livingston county in the month of May, 1886, for the crime of larceny in the second degree. Upon the presentment of the indictment, thfe same was sent to the court of sessions of that county for trial. Subsequently the accused as principal, and this appellant, Amariah Hammond, and another, as sureties, executed an undertaking in the sum of $500 for the appearance of the accused. This undertaking was properly acknowledged by the sureties, who duly justified as such, but the same was not acknowledged by the principal. The learned judge before whom this action was tried has dismissed the complaint upon the ground that the failure of the principal to acknowledge the undertaking was fatal to any claim of liability against the sureties thereto. To this proposition we cannot assent. The statute permits the defendant, whether in a civil action or in an indictment, to execute an undertaking with or without sureties. Code Grim. Proc. § 581; Code Civil Proc. §§ 810, 811. Had Bradner not been a party to this paper in name, no question could have been raised in regard to the liability of the sureties thereto under these provisions of the several Codes. If there be a fallacy in the reasoning of the learned judge, it consists in the proposition that, inasmuch as the recognizance is required to be a record, that it therefore must be acknowledged by all of the parties thereto whose names appear thereon. The surety, having undertaken, in the form stated, for the faithful appearance of the accused for trial, is not in a position to avail himself of any mere formal defect in the instrument which applies to another party thereto, and not to himself.

But there are other grounds upon which this judgment may be maintained. It is found as a fact by the trial court, which finding is abundantly sustained by the testimony of two reputable members of the bar of long standing, that at the adjourned term of the court of sessions held in the latter part of June the defendant Bradner was there ready to appear when required, and his counsel was at the court. On inquiry by the counsel for the accused the district attorney stated, and this, too, at a time before any forfeiture of bail is claimed, that he should not move the indictment- against the accused at that term. Thereupon, under direction or advice of counsel, Bradner was induced by such statement of the district attorney to leave the court at Geneseo, and not further to attend upon that term, and he did so in perfect good faith, understanding by the information which he had received that his presence was not required there longer. The force of this testimony is sought to be broken in part by the argument of the learned district attorney, that his statement made to counsel, and so communicated to the accused, did not necessarily relate to the indictment in question, but to others of a series of indictments of which this was one. But no such limitation can be made upon the force and effect of this statement as disclosed by the evidence. It is quite unreasonable to believe that these gentlemen of large experience in the practice of the courts should knowingly have conveyed to their client information in one case which they knew had been derived only in another. The subsequent voluntary appearance of the defendant in the indictment at the court of oyer and terminer, to which the case had been sent back, corroborates the proposition of the defendant’s counsel that the accused acted upon the infoemation given to his counsel by the district attorney. The judgment should be affirmed. All concur.  