
    People v. Tubbs et al.
      
      .
    
    
      Forfeited recognisance.—Witness.
    
    In a suit against the bail in a forfeited recognisance, the inability of áie principal to appear, by reason of the act of God, is a good defence.
    A party may testify to his inability to attend court, by reason of sickness, though not a medical expert.
    Appeal from the general term of the Supreme Court, in the fifth district, where a judgment entered in favor of the defendants, upon the report of a referee, had been affirmed.
    This was an action brought in the name of the People against Byron P. Tubbs, Marenus Tubbs and James Withers, upon a recognisance in the sum of $1000, conditioned for the appearance of the said Byron P. Tubbs at a court of sessions, to be held at Morrisville, in and for the county of Madison, on the 22d March 1863, to answer to an indictment for perjury, &c.
    The answer denied all the allegations in the complaint, except that Tubbs was indicted, and further averred, that at the time when Tubbs was called, and the other defendants were required to produce him, viz., on the 23d March, 1863, he “was sick and unable to go, or be carried, to said Morrisville,” and his nonappearance to answer * * * “ was wholly without his fault, or the fault of his said bail.”
    The case was tried before a referee, who found as matter of fact:
    1. That the recognisance upon which this suit was brought was not entered in the minutes of the court, and the substance thereof read to the parties recognised.
    2. That the minutes of the court at which such recognisance was claimed to have been entered into, were kept in brief, on sheets of paper attached together, and that, in this case, only the title of the cause, the name of the principal and sureties, the amount of the bail in figures, the time at which the principal was to appear, an<^ cause f°r which he was *to appear, was written in the said minutes. That the recognisance was put into form, and written in a book kept for that purpose, after said court had adjourned, and that said recognisance, as repeated to the prisoner and sureties, was not on the minutes kept in said court.
    3. That the defendant, Byron P. Tubbs, did not appear, &c.
    4. That said Byron P. Tubbs, was wnable to appear at said court of sessions, by reason of sickness and injuries arising from being thrown from a horse, shortly prior to said March term of said court of sessions.
    And upon this staté of facts, the referee held and decided as conclusions of law: 1. That the recognisance upon which this action was brought was not executed in accordance with the requirements of the statute, and was void by reason thereof. 2. That the sickness of the defendant and his injuries disabling him from appearing at said March sessions, was an excuse for his nonappearance thereat, and a valid defence to this action. He, therefore, directed judgment for the defendants for costs, which was entered accordingly.
    By a special finding, contained in the case as settled by the referee, after reiterating the findings embodied in his report, he further found that the defendants did, in open court, at the time alleged, enter into the recognisance mentioned in the complaint, a copy of which was given in evidence. And that Byron P. Tubbs failed to appear, and .an order was made by the court estreating said recognisance and ordering the same to be prosecuted as alleged in the complaint.
    During the course of the trial, Byron P. Tubbs was examined as a witness, and was asked the following question: “Was you able to go to court, during court week?” The plaintiff’s counsel objected to the question, but the objection was overruled, and an exception taken.
    The judgment entered upon the report of the referee was affirmed, on appeal to the general term; whereupon, a further appeal was taken to this court.
    Cameron, for the People.
    
      Southworth, for the respondents.
    
      
       Also reported in 5 Trans. App. 342.
    
   *Woodruff, J.

The referee has found as a fact, that the defendant, Byron P. Tubbs, the principal, was unable to appear at the term of the court at which he was, by the alleged recognisance, bound to appear, and at which, for such non-appearance, the said recognisance was estreated. And also that such liability was, by reason of sickness and injuries arising from being thrown from a horse, shortly prior to said term of the said court. These facts we are not at liberty to question. The case is before us in a form permitting us to review questions of law only. (Code, §§ 268, 272.) There was evidence in support of this finding, and it was competent for the supreme court to reverse, if the finding was not satisfactory to them upon this point. We have no such power.

The question of law upon this finding is, does an inability of the principal to appear, “ by reason of sickness and injuries arising from being thrown from a horse, prior to the term of the court,” constitute a defence to an action upon the defendants’ recognisance? I do -not think, that this should be regarded as an open question in this state. The recognisance is but a solemn contract. It is made of record, but that does not withdraw it from the general rule applicable to contracts, whether by parol, in writing, under seal, or in whatever form they are entered into.

In this state, it is settled, that the act of God or of the law will excuse the non-performance. As to contracts in general, see Wolfe v. Howes (20 N. Y. 197), in this court, affirming „ the decision of the supreme court (24 Barb. 174), and citing cases, text-writers and reports from other states establishing the doctrine. The case of a replevin-bond, Carpenter v. Stevens (12 Wend. 589). And as to recognisances in particular, see People v. Manning (19 Wend. 297); People v. Bartlett (3 Hill 570); People v. Cook (30 Barb. 110). The inability of the principal to appear by reason of sickness is, within these cases, the act of God, which excuses, and is a sufficient defence.

^6 Byron T. Tubbs, the principal in the recognisance, was examined as a witness, and testified to his illness; that he was hurt on Friday; that on the Monday when the court commenced, he had not gotten up; that he was confined to his bed, nine days. The question was then put to him: “Was you able to go to court, during court week ?” T.o this question the plaintiffs’ counsel objected, and excepted to its allowance. The witness answered: No, sir; I was not able, during court week, to go to Morrisville, and could not have gone.” '

It is argued, that this was objectionable, because the witness was not an expert, and that it was permitting the witness to determine a question of fact, which it was within the province of the referee to determine. Witnesses are often permitted to testify in the very terms in which a referee, or the court or the jury, are to determine an issue; e. g., on an issue touching the making of a note or the signing of any instrument, if the alleged signer be a competent witness, he may testify, in terms, that he did not sign it, or that the signature is not in his handwriting. Or, in an action for an assault and battery, the defendant, when a competent witness, may be asked, and he may testify, that he did not strike the plaintiff, and the like is true in examples that might be multiplied almost indefinitely. The objection, therefore, that this was the very matter which the referee was to decide, amounts to nothing. He was to decide upon all the evidence bearing on the question, and the witness, in all such cases, may be contradicted, and his testimony be, perhaps, wholly discredited.

Was the evidence objectionable as calling for the opinion of an expert? No such suggestion was made on the trial, and if it had been suggested, it is possible, that the defendants might have obviated the objection, by proof, that the witness had every qualification of medical skill and experience which constituted the most thorough expert. But I apprehend that the question did not call for an opinion. It was addressed to the conscious knowledge of the witness of the extent of his prostration. It added very little to what *he had previously stated, viz., that he was confined to his bed; but, whether more or less, it is clearly competent for the witness to describe his actual condition. If he could not sit up, he knew it, presumptively, better than any one else, not as. an opinion, but as matter of fact, of which he was conscious, either from sensation or experience. So, if he could not raise his arm, or could not walk, or could not go to court. I think, the objection was properly overruled.

If these views are correct, the judgment must be affirmed, whatever our views may be of the sufficiency of the recognisance.

Judgment affirmed. 
      
       United States v. Van Fossen, 1 Dill. 406.
     