
    Proseck v. The State.
    1. The principal and sureties bound in a recognizance for the appearance of the principal before a court, are presumed to know -when and where the term will commence, and if the obligation, in view of such presumed knowledge, appears with reasonable certainty, the recognizance will not be deemed invalid upon the ground that the language of the statute providing therefor has not been strictly followed.
    2. Whore a statute, in prescribing the terms and conditions of a recognizance, requires that the accused shall be bound to appear at the next term, a recognizance omitting the word next, but strictly pursuing the statute in ail other respects, will not be deemed invalid for such omission.
    3. Under the provisions of the act relating to bastardy (70 Ohio L. Ill, § 7 ; Rev. Stat. g 5622), “that if the sureties on the recognizance, at any term of said court, surrender the accused, and request to be released from such recognizance,” the court “may order a new recognizance to be taken, cancel such first recognizance and commit the accused,” an answer of a surety, that he took the accused, and at a subsequent term of the court surrendered him in open court and requested a release from the recognizance, without stating whether such surrender was before the recognizance was forfeited, or before final judgment in the bastardy suit, or that the recognizance was canceled, is not merely defective in form, but insufficient in substance, and hence subject to demurrer.
    Error to tbe District Court of Cuyahoga county.
    On the hearing before a j’ustice of the peace of a complaint in bastardy against Jedlicka, he was required to and did, on August 18,1876, enter into a recognizance in the sum of $500, with Kutchta and Proseck as sureties, conditioned that he should “ personally appear before the court of common pleas, to be holden in and for the county aforesaid, on the first day of the term thereof, and continue from day to day, and then and there answer unto a complaint of bastardy made by Barbara Miller against him, and abide the order of the court thereon.”
    At the next term of the court of common pleas of that county, commencing September 4, 1876, the cause was continued until the next term thereof, when the recognizance was forfeited, and Jedlicka was adjudged to be the reputed father of the child and charged with its maintenance in the manner provided by statute.
    In an action on the recognizance in the court of common pleas of that county, Proseck alone answered. He answered, first, that the recognizance was void for uncertainty, the objection being that the accused was not required to appear at the then next term, or any other particular term. Secondly, that the accused “did afterwards personally appear before said court, on the first day of the term thereof, in compliance, strictly, with the letter of said bond or recognizance, which fully relieved and discharged this defendant from all liability upon the said bond.” Thirdly, that after the signing of the recognizance, the defendant Proseck took the accused, and at a subsequent term of said court surrendered him “ to said court, in open court, and requested to be released from the said writing and recognizance, whereby the defendant Proseck became and was and is fully discharged from obligation or liability upon the said writing and recognizance.”
    A demurrer to the defenses was sustained, judgment was rendered for the amount of the recognizance, that judgment was affirmed in the district court, and this petition in error is prosecuted to reverse the judgments of both courts.
    The provisions of the act of 1873 on the subject (70 Ohio L. Ill, Rev. Stats, § 5614 et seq.) are as follows :
    § 4. “ In case such accused person does not comply with the provisions in the first and second sections of this act contained, the justice to whom such complaint was made shall bind such person in a recognizance to appear at the next term of the court of common pleas, with sufficient security, in a sum not less than three hundred dollars, nor more than six hundred dollars.”
    § 7. “ If at the next term of said court the complainant has not been delivered or is unable to attend, or if there is any other sufficient cause therefor, the court may order a continuance of the cause, and such continuance shall operate as a renewal of the recognizance, which shall remain in full force until final judgment; provided, that if the sureties on the recognizance, at any term of said court, surrender the accused and request to be released from such recognizance, or if the court shall deem such recognizance insufficient, it may order a recognizance to be taken, cancel such first recognizance, and commit the accused until a new recognizance is given.”
    
      JacJeson c& Pudney, for plaintiff in error :
    * 1. The petition is fatally defective in that it sets up a cause of action not contained in the recognizance- upon which the action is based.
    2. The recognizance must contain the essential parts both as to obligation and condition. 1 Ohio St. 399 ; Washington O. C. 422.
    3. The plaintiff in error must be held upon the express terms of the recognizance if at all. 9 Ohio St. 11-22; 20 Ohio, 97, 98; 1 Ohio St. 399; 13 Ohio, 176; 23 Ohio St. 320.
    
      Wilson & Sykora, for the defendant in error:
    .As to the effect of the omission of the word “ next.” Id cerium est quod cerium reddi potest. Williamson v. Hull, 1 Ohio St. 190, 194; Hall v. Williamson, 9 Ohio St. 24; Milliken v. State, 21 Ohio St. 635; Clark v. Petty, 29 Ohio St. 452; Atkinson v. Sanderson, 1 Tidd’s Pr. 223; 4 Douglass, 254; Pasten v. Hunson, 2 Saunders, 59; Badger v. State, 5 Ala. 21; Minor v. State, 1 Blackf. 236; Cummingham v. State, 14 Mo. 402; People v. Hawkins, 3 Howard N. S. 1.
    Such a construction should be placed upon the contract as will prevent its failure, and will give effect to the obligation of each of the parties appearing upon it at the moment the contract itself takes effect, ut res magis valeat quam pereat. 3 Ohio St. 421; Alexander v. Jacoby, 23 Ohio St. 384.
    In determining whether the right of action on such undertaking be several or joint, not only the terms of the bond, but also the provisions of the statute which authorize its execution must be considered, for such provisions must be regarded as much a part of the bond as if they were embodied in its terms.
    As to the third defense we say: The bail having been finally discharged, and their undertaking being no longer conditioned, the sureties had no legal authority to thereafter surrender their principal in discharge of their liability. Whetstone v. Riley, 7 Ohio St. 514.
   Okey, C. J.

1. The statute requiring justices of the peace to recognize the accused to appear at the “ next term,” and the word next being omitted from the recognizance, it is insisted that the instrument is a nullity. If the condition in a recognizance be ambiguous or uncertain as to the time or place the accused is to appear, such recognizance is void. The State v. Johnson, 13 Ohio, 176. Such an infirmity cannot be cured by parol evidence. Crippen v. The State, 1 Ohio St. 399. But, while it is the duty of the magistrate in all cases to strictly pursue the statute, it is by no means indispensable to the validity of a recognizance that the language of the act should be literally followed. If the time and place of appearance be shown with reasonable certainty, the statute in those particulars is complied with, and slight omissions and inaccuracies will not, ordinarily, affect the validity of the recognizance. Moreover, persons entering into such obligations are presumed to do so with knowledge of the general statutes relating to the courts, and the orders fixing the commencement of the terms, published with the annual volumes of laws. In this view, the omission of the word next did not render the recognizance invalid, but read in the light of the aids to which I have referred, the obligation to appear at the term commencing September 4, 1876, is sufficiently certain. Kellogg v. The State, 43 Miss. 57; Mooney v. The People, 81 Ill. 134; Brite v. The State, 24 Texas, 219; The State v. Bradley, 1 Blackf. 83; Com. v. Emery, 2 Binney, 431; The State v. Wellman, 3 Ohio, 14; Williamson v. Hall, 1 Ohio St. 190; s. c., 9 Ohio St. 24; Clark v. Petty, 29 Ohio St. 452; R. v. Hodgson, Dears. 14; s. c., 7 Ex. 915; 5 Wait’s Act. & Def. 401.

There was express authority to continue the cause and the recognizance, forfeit the recognizance at the next term on failure of the accused to appear, and take judgment against him, in pursuance of the statute, on the rendition of a verdict finding the complaint to be true; and, in an action on such recognizance, the record of forfeiture is conclusive. It will be seen that the defect which was fatal in Grieve v. Freytag, 31 Ohio St. 147, does not appear in this case; and it is also proper to say that the statute in force when Porter v. The State, 23 Ohio St. 320, was decided, has been in some respects changed.

2. The defense of surrender of the principal by the surety is wholly insufficient. No compliance with the statute upon that subject is shown, and the answer is evasive. "Whether the alleged surrender was before the forfeiture, or even before final judgment in the bastardy suit, is not stated, nor is it stated whether the. recognizance was canceled. The answer is not defective in form merely, but insufficient in substance. Whetstone v. Riley, 7 Ohio St. 514 (explained and qualified in Wright v. Coller, 35 Ohio St. 131), has been cited, but has no application.

Judgment affirmed.  