
    The People, ex rel. Ephraim L. Van Aken, Overseer of the Poor, etc., Appellant, v. Warren Millham et al., Respondents.
    Defendant M. having been arrested as the reputed father of a bastard child, and the hearing having been adjourned at his request, gave a bond with the other defendants as sureties, conditioned that he would personally appear before the justices on the adjourned day and “ not depart therefrom without leave of such justices.” On the adjourned day -M. appeared and the hearing began, but was not completed; at the request of counsel on both sides it was adjourned to a day named. On that day M. did not appear. In an action upon the bond, held, that his non-appear-once was a breach of the condition and defendants were liable.
    
      It seems that the meaning and effect of the bond would have been the same if it had been simply conditioned as prescribed by the statute authorizing the taking of a bond in such case (1 R. S. 644-, § 13), i. e., had the words “ and not depart therefrom without leave of such j ustices ” been omitted; that the object of the statute is not simply to secure the at-. tendance of defendant at the. adjourned day, but during the trial until the termination thereof.
    (Argued October 19, 1885;
    decided October 30, 1885.)
    
      It seems also that a different rule might apply where an adjournment is granted before the. commencement of the proceedings.
    
      People, ex rel. v. Millham (29 Hun, 151), reversed.
    
      People v. Greene (6 Hill, 647), distinguished.
    Appeal from order of the General Term of the Supreme Court, in the third judicial department, made January 23, 1883, which reversed a judgment in favor of plaintiff, entered upon a verdict. (Reported below 29 Hun, 151.)
    The nature of the action and the material facts are stated in the opinion.
    
      A. T. Clearwater for appellant.
    The bond in suit was authorized by the statute. (1 R. S., ch. 20, tit. 6, §§ 12, 17.) The prisoner was bound not only to appear but to give his continued attendance until the examination and subsequent proceedings were finally closed; having failed to do so there was a breach of the bond, and the action of the court in directing a verdict for the plaintiff was proper. (People v. Jayne, 27 Barb. 58 ; People v. McCoy, 39 id. 73.) Bonds in bastardy proceedings for reasons of public policy are construed with the utmost rigor against the obligors. (Falls v. Belknap, 1 Johns. 486 ; Rockefeller v. Donnelly, 8 Cow. 623 ; People v. Corbett, 8 Wend. 520 ; People v. Haddock, 12 id. 475; People v. Mitchan, 44 Barb. 245 ; Williford v. State, 17 Tex. 653 ; Howee v. State, 1 Ala. 113; People v. Moores, 4 Denio, 518; People v. Clark, 21 Barb. 214; Gildersleeve v. People, 10 id, 35 ; People v. Annable, 7 Hill, 73; Mooney v. People, 81 Ill. 134; State v. Wells, 36 Iowa, 238.) A bastardy bond taken with a single surety though irregular is valid and may be enforced against the obligors. (People v. Lyons, 7 Daly, 182; State v. Baker, 50 Me. 45; Paulk v. State, 52 Ala. 427.) The bond having been voluntarily given the sureties must be held to be concluded, and are bound by their undertaking. (Champlain v. People, 2 N. Y. 
      82; Hawkins Pleas of the Crown, B. 2, chap. 15, §§ 3, 84; PetersdorfE on Bail in Criminal Oases, 515.) All instruments in the nature of a recognizance are strictly construed against the party and his surety. (People v. Blankman, 17 Wend. 252; People v. Petry, 2 Hilt. 523; Sennard v. State, 2 Kelly, 137 ; State v. Stout, 6 Halst. 124; People v. Wilgus, 5 Denio, 58; People v. Huggins, 10 Wend. 465; Miner v. Safe, 1 Blackf. 236 ; McCarty v. Safe, 1 Blatchf. 338; Safe v. Willman, 3 Ohio, 14; Tyler v. Greenlow, 5 Band. 711; Dunham v. Heyden, 7 Johns. 381.) The verdict for the penalty of the bond was properly directed. (People v. Tilton, 13 Wend. 597 ; People v. Jayne, 2 Barb. 58.)
    
      Wm. Lounsbery for respondents.
    The plaintiffs cannot help their case by any consent of the parties at the time of the adjournment. They must stand upon the condition of the bond. All that took place at the time of the adjournment, so far as the sureties were concerned, was without consideration. It did not bind the defendant Turner, who was not present and not represented. (Reeves v. United States, 9 Wall. 13.) In respect to such a bond as the one in suit the court has no power to continue it in force, or renew it and make it applicable to the next term in any way, even with the assent of the obligors. It is not á recognizance; but a thing in pais, like any other deed ; and cannot be continued without a new bond. (People v. Greene, 5 Hill, 647; People v. Hawes, 1 Denio. 454; J. H. C. Ins. Co. v. Loenthal, 14 N. Y. Weekly Dig. 326; State v. Houston, 74 N. C. 174; Ogden v. People, 62 Ill. 64; Reeves v. U. S., 9 Wall. 13; People v. Swale, 33 Hun, 208.)
   Earl, J.

The defendant, Warren Millham, was arrested under a warrant issued by a justice of the peace of the town of Esopus, Dlster county, as the reputed father of a bastard child likely to be born, and was brought before the justice, who called to his aid another justice, and at the request of Millham the hearing of the matter was adjourned to June 7, 1879 ; and in. pursuance of the statute he gave a bond, with the two other defendants as sureties, conditioned that he would personally appear before the justice at the time and place to which the adjournment was had and not depart therefrom without leave of the justices.

On the day named, which was Saturday, Millham appeared and the hearing and examination began and there continued all that day without completing the same, and then the counsel on both sides having engagements at a County Court which was to commence its session upon the following Monday, upon their request and assurance to the justices that the bond would hold the sureties, the case was adjourned to the 26th of June, 1879. On that day Millham did not appear, although duly called.

This action was commenced upon the bond to recover for a breach of the conditions thereof, and at the trial the defendants objected that there was no breach of the bond, as Millham had appeared at the time and place mentioned therein and had departed with the leave of the justices; but the trial judge held that there was a breach and directed a verdict in favor of the plaintiffs for the amount of the penalty and interest thereon. From the judgment entered upon the verdict the defendants appealed to the General Term and there the judgment yras reversed and a new trial granted, on the ground that there had been no breach of the bond, and then the plaintiffs appealed to this court.

The sole question for our determination is whether, upon the undisputed facts, there was a breach of the bond.

By section 12 of title 6, chapter 20, of part 1 of the Bevised Statutes, it is provided that when the reputed father is brought before the justices and he shall require delay and give sufficient reasons therefor, they may adjourn the examination for any time, not exceeding six weeks, and shall take his bond, with sureties, for his appearance at such time before them, in the penalty” mentioned.

This bond was conditioned that Millham should personally appear before .the justices at the time and place named, and not depart therefrom without leave of such justices.” It is not claimed, and could not be, that the words quoted were inserted in the bond without authority of law, and that it was, therefore, illegally exacted. (People v. Jayne, 27 Barb. 581.) Without these words the bond would have the same meaning and would have to receive the same construction.

The purpose of the bond required by the statute is to release the defendant from arrest. Without it he would have to remain under arrest, as the examination could not proceed without his presence. (§ 11). If the sureties upon such a bond would be discharged whenever the justices should permit the defendant to leave the room where they were sitting ; or whenever they took a recess for dinner or adjourned to procure the attendance of a witness; or over night; or over Sunday ; or to meet the exigencies contemplated by section 20, the purposes of the statute and of the bond would be defeated. If such were the rule, the defendant would have to be placed under arrest when he came to his examination, or he would have to bring his sureties with him so as to obtain their assent to the action of the justices. The object of the statute is not only to secure the attendance of the defendant at the adjourned day, but during the trial until the termination thereof. The bond binds him to appear at and during the examination, which may last one or several days, and which may, from the engagements of the justices, or other contingencies, be adjourned from time to time. If this case, after the examination had commenced, had been adjourned over night or over Sunday, would not the sureties have been bound? And if they would not be discharged in such case why should they be discharged by any adjournment for several days? After the examination has been entered upon there is no provision for a new bond, and it is not believed that the justices could exact a new one, and in default thereof order the defendant under arrest. Having given the bond he is entitled to be at liberty until the close of the examination and the decision thereon. When an examination is thus continued from day to day. or from week to week, it is a continuance of the same court held by the same justices, and it is the same examination and hearing; and. “ the leave to depart,” contemplated by the law, is the leave to go at the end of the examination, when the same has in some way been brought to a conclusion, so that the presence of the defendant is no longer required for any purpose, or some leave to go finally out of the court or from the court. Here there was no leave to the defendant to depart out of the court or from the examination ; but he was required to be and appear on the further hearing of the matter on the adjourned day.

This construction of the statute and the bond is made more clear by reference to section 17, which provides that during such examination, and until such person shall be discharged by the justices aforesaid, he shall remain 'in the custody of the constable who apprehended him, unless a bond shall have been taken for his appearance.” Thus plainly during the whole examination, whether it takes one day or weeks, the defendant must remain in custody, unless he has given the bond, and then during the same time the bond stands in the place of the custody, and entitles him to be at liberty.

If a criminal be bound by recognizance to appear at court for trial it has never been doubted that he is bound to remain during the trial to answer when called at any time until the conclusion thereof, and the trial may be postponed from day to day, or for several days, without discharging his sureties.

We do not go any further than the facts of this case. Here the hearing had commenced. A different rule might apply when, before the commencement of the examination, a postponement to a later day is made, for, in such a case, the justices might have the right to take a new bond as if one had never been given.

W e are not unmindful of the rule which forbids such a construction of the contract of suretyship as will extend or enlarge its scope beyond its plain terms or evident meaning. But this bond must be construed in reference to the statutes under which it was given, and so as not to frustrate the plain purpose for which it was taken; and, thus construing it, we think there was a breach of its conditions. '

The case of People v. Greene (5 Hill, 647), is not in point. There the defendant was bound to appear at a certain term of court, and, without entering upon the hearing, the case was postponed until the next term, and it was held that his failure to appear at the next term after that to which he was bound to appear did not constitute a breach of his bond. If in that case the hearing had been commenced at the first term, and had been postponed to any day during the same term, and the defendant had failed to appear at the adjourned day, then there would have been a different question, and no doubt in such case the court would have held that there was a breach of the bond.

We are, therefore, of opinion that the order of the General Term should be reversed, and the judgment entered upon the verdict affirmed, with costs.

All concur.

Order reversed and judgment affirmed.  