
    GRAVES against BECKWITH.
    Where A was brought before a Justice of the Peace qn a p'apias, the 3d September, 1831, and at his instance the cause was.cantinued until the 1st of October ensuing ^ upon 33‘s entering into the following recognizance *-B bound in two hundred doi lars as special.bail for the appearance of the defendant in this cause: acknowledge ed 3d September, 1831, before me Job G-ier, J. P. ’* Held, that this is not a recogí, pizaneeqf special bail, within the provisions of the second section of the act oí 3810, for the recovery of demand^ npt texceedihg one hundred dollars, but is a recognizance under the 8th section of the said act, for the appearance of the del fendant, the condition whereof is forfeited, by his not appearing in person on the day fixed — the word special, in spell recognizance, being regarded alj surplusage.
    The,appearance of an attorney, for defendant, on. the (lay appointed in such recog. nizance, the defendant hirrispif not appearing, is no performance of ¡its condition.
    On a scire facias against B. as Bail of A.' it is competent for the plaintiff to give in evidence the note of A. in which the original suit was founded, to ascertain the amount of the deipand. - ' .
    Error to the court' of Common Picas, of' Tioga county-.
    This cause was argued by Rathbone Rnd Rarsans fo,r the plaintiff in error. • -
    
      Williston, for the defendant in error.
    The facts of the case are fully detailed in the opinion of th«> court which was delivered by
   Kennedy, J.

This action was brought before a Justice of the Peace, upon a recognizance taken before him of hhe plaintiff in error, in the sum of two hundred dollars ^as bail for the appearance of a certain Ezra Southiuorth, on the first day of Optober, then nextfollowing the date of the recognizance, to answer ,th,e defendant in error, at whose suit Soutluoorth had been arrested, and brought before the Justice, upon a capias issued by {nm. The demand of Beckwith the defendant in error, for which the capias had been sued out against kouthworth, was founded upon a note, bearing date the 28th of August, 1828, drawn by Sauthiuorth and Samuel Hammond in favor of Beckwith. . Rlammond was also embraced in the capias, but not found by the constable. On the 3d of Septembei-, 1831, Southworth was brought by the' constable upon the capias before the Justice, to answer Beckweth. , South-worth alleging he was not ready for trial, then prayed a postponment of the trial of the cause until' the .first day of October, then next following, which was granted by the Justice, upon his giving the plaintiff in error, bail, for his appearance before the Justice again on that day. For that purpose Graves, the plaintiff in error, entered then into the following'recognizance ?Hobart B. Graves bound in tVvo hundred dollars, as special bail for “the appearance of the defendant'in the cause; acknowledged, Sept. 3d* 1831, before me Job Geir J. P.” On the first of October following, N, H. Purple appeared as attorney far the-plaintiff in that suit, and Joseph Wilson appeared as attorney for the defendant, but the defendant himself did not appear in person. The plaintiff, by his attorney, objected to the defendant’s appearing by attorney, Unless he also appeared himself in-person, artd claimed that the'reaognizanc-eof his bail should be forfeited, if he did hot do so. Southworlh,. the defendant, did not appear in person, by which the Justice considered the recognizance of his bail forfeited, and that fn his absence, no judgment or further proceeding could be given or. had against him. This suit was instituted shortly after that before, the Justice, by issuing a writ of scire facias upon the recognizance, considering it as having been forfeited. The writ of scire facias, ■ issued by the Justice, recited the recognizanoe in the following-words, ‘‘whereas the said Hobart B. Graves of said county, then and there became bound before our said Justice, in a recognizance of two hundred dollars, conditioned that Ezra E Southioorth. should be and appear before the said Justice, at his office in said Laiorenceville, cm the first day of October, A, D. 1831, at one o.’-. clock, P. M. and not depart the court without leave, &e.

The Justice rendered a'judgment against the plaintiff in error for the amount of the debt, which was under a hundred dollars; which the defendant in error proved was owing to him by Ezra C. Southworlh, and for which he'had brought the suit in which the plaintiff in error became hail for Southwo'rth’s appearance in the manner above ■ stated. And from this judgment the .plaintiff in error appealed to the next county court of Common Pleas, where the cause was aftérwards tried upon the following issues.

1st Plea, No such recognizance as is recited in the writ of scire facias: and replication, that there is such a recognizance.

. 2d. Plea. Appearance of the defendant according to the condition; and replication, that he did not appear according to the condition.

3d. Plea. No judgment or execution against the principle: and a demurrer to it. . ■ } t {

The coúr.t below gaye judgment upon the demurrer in favour of the plaintiff, and upon the trial of the issues of fact, permitted the plaintiff to give in evidence to the jury, ¿gainst the objection of the defendant, the recognizance already recited, and the note, and' charged the jury, that Souihworlh, not having appeared in person before the Justice, on the day mentioned in- the recognizance for that purpose, was a forfeiture of the defendants recognizance, and entitled the plaintiff to maintain this action; and that the plaintiff had a right to recover the amount of the debt clue to him by Ezra C. SouthiOorih, the principal, for which he had brought his suit before the Justice, together with the costs of that suit. That the note given in evidence to them, Was evidence of the plaintiff’s demand in the original suit.

Eight exceptions or errors have been taken and filed here, to the judgments and proceedings had in this case below, which may all be considered and disposed of by solving the following questions.

First, was there any material variance between the recognizance given in evidence, and the one recited in the writ of scire facias?

Second. Had the Justice anj^ authority under the act of Assembly passed the 20th of March, 1S10, entitled -“An Act to amend and consolidate with its supplements the Act entitled an Act for the recovery of debts and demands not exceeding one hundred dollars, before a Justice of the Peace, and for the election of constables, and for other purposes” to take such a recognizance; and if he had, whether was it taken under and in conformity to the provisions contained in the second or the eighth section of the act?

Third. Was the note properly admitted in evidence to the jury?

With respect to the first question.' It appears to me that the recognizance recited in the writ of scire facias is substantially the same with that given in evidence. The amount or sum of money mentioned in both are the same, as also the date and terms thro'’ out, except the words “as special bail” which are omitted in the writ, and which I shall show hereafter are insufficient to determine the true character and nature of this recognizance. The recognizance was therefore properly received in evidence on the trial -of the first issue.

In order to decide the second,question correctly,- it is necessary to refer to the second and eighth sections of, the Act, Pur don’s .Dig. 495 fy 498. Upon the, second section, Justices of the Peace, upon complaint being made to any one of them, aré empowered to issue a summons, if the party complained of be a freeholder, if not, either a summons or warrant of arrest, which is usually called ■a capias, directed to a constable. If a warr’ant of arrest.be issued, the constable is commanded thereby to cause the defendant to appear before the Justice, forthwith, on the service of the writ; but it is also provided by the same section “that in all cases where a warrant or capias is issued against the person of a debtor, it shall and may be lawful for the constable to'take bail for the appearance of the defendant before the Justice, from whom the said warrant or capias may have been issued in the following words: we A. B. and C. J). are held and firmly bound unto E. F. constable of--, or order, in the sum of-, on condition that the said A. B. shall be and appear before G. H. Esq. Justice o'f the Peace in the said township of-, on the — day of •*>-, to answer-, in a pica —Witness our hands the —-day of-. And if on the return of the said warrant or capias, the defendant shall not appear and enter bail before the Justice, in the nature of special bail, the constable may assign the obligation to the plaintiff, if he will accept the same, which obligation may be sued in the name of the"plaintiff, as assignee of the said constable &c. &c. but if the defendant shall appear and enter special bail, the Justice may proceed to a final determination of the suit according to law: and after judgment, such bail shall be proceeded against by scire facias, and shall be liable in the same manner as special bail now is liable, in cases in the courts of Common Pleas, and may surrender the principal to the jail of the proper county, within ten days after the service of the writ of scire facias, in discharge of the bail. Nevertheless, the bail to the constable may enter sufficient special bail to the suit, or cause it to be entered at the return of the warrant or capias, in discharge of. the obligation, when the defendant may neglect or refuse to appear, in which case the Justice may proceed in the same manner as if the defendant had appearedThe eighth section further directs, that upon the affidavit of either party or their agent, that the testimony of any material witness is wanted, who resides out of the county, or from his infirmity of body, or other causes cannot be obtained personally, the cause shall be postponed to a day certain, within such reasonable time as the distance of the witness, the season of the year, and the circumstances' of the roads may render it proper to obtain the deposition of the witnesses wanted; and wherever a cause is postponed at the instance of the defendant, he shall enter into a recognizance, in a sum sufficient to cover the demand in question, together with the costs, with one sufficient surety, for his appearance on the day fixed as aforesaidNow it is very obvious, that by the express terms of the second section, that the bail there spoken of and provided for, and which is to be entered before the Justice, is nor bail for the appearance at or on a particular day, before the Justice, but bail in the nature of special bail, which is, that if the defendant be cast in the action, that he will either pay the condemnation money, or surrender himself to the jail of the county, or that the bail will do this for him Thus it appears that the condition of a recognizance of special bail, is altogether different from the one which was entered in the present case which was, “for the appearance of the defendant in that cause, on the first day of October, then next following. If the Justice had proceeded no further in his memorandum or entry of the recognizance of bail, than the words “special bail,” it might with some propriety have been alleged that, it was a recognizance of special bail within the provisions of the section; for then the law might have supplied the appropriate remidy to a recognizance of special bail; or the Justice from his memorandum might have made it out in due form afterwards, but he has annexed a condition which is incompatible with that of special bail, and cannot be changed. The condition here, then, being set out by the Justice at full length, no other can be substituted; it must determine the true nature of the recognizance, and control the word •'special” which must be regarded as surplusage. If the defendant in the original action had appeared on the 1st of October, 1831, at the hour to which the hearing of the case was adjourned, in his proper person, and the trial had gone on, and judgment been given in favor of the plaintiff against the defendant there, for a sum within the Justice’s jurisdiction, and the defendant had afterwards withdrawn himself, so that neither his property nor body could have been found by the constable upon an execution put into his hands; and in a return made thereto by the constable of “no goods or body,” a scire facias had been issued against the plaintiff in error, upon his recognizance, would he not have said at once it was impossible that he should be made liable to the plaintiff’s suit upon this recognizance; for the condition of it had been performed, that the defendant then had appeared at the very day and-hour fixed, according to the express terms of the condition of the recognizance, and that the record of the Justice shewed all this to beso? No doubt but he Would; and without changing the terms of the condition, which no one will pretend could or ought to be done, he could not in that case have been made liable. Special bail being the only bail which the Justice, under the second section of the*act, was authorized to take, and it having been shewn that the recognizance taken in this case, is not one of special bail, it follows of course, that the Justice had no authority and did not take it under this section.

Let us now turn to that part of the eighth section which has been recited. By this section we have seen, that “wherever a cause is postponed at the instance of the defendant, he shall enter into a recognizance for a sum sufficient to cover the demand ia question, together with the costs, with one sufficient surety for his appearance on the day fixed as aforesaid. Now it do?s appear to me, that the occasion upon which this recognizance was taken, as well as the terms in which it was entered? are both provided for here, most expressly.

Ezra C. Southworth, the defendant in the original action, appeared before the Justied, and asked for a- postponment of the cause, until the first day of October, then next following. After satisfying the Justice, that it Was proper to grant this, what then did that part of the section just recited require? I answer, precisely that which has been done by the Justice in this case. The taking of “a recognizance for a sum sufficient to cover the ' demand in question, together with costs, with one sufficient surety for his appearance on the day fixed as aforesaid.

It has been contended, that this section was only intended to apply to defendants, who were sued by summons; but the terms of the section will warrant no such distinction. Besides, it may well be doubted, whether it would be consistent with the other provisions contained in the act, in favor of freeholder's, to make it applicable to all cases of those who are sued by summons; and if a distinction of any sort is to be made, it would be to extend it to the case of every defendant who is not a freeholder, whether sued by summons or warrant of arrest.

It having been established that the Justice had an authority to take this recognizance under the eighth section of the act, it remains to be inquired into, whether the appearance of an attorney, on the day fixed by the recognizance, for the defendant, was a performance of its condition.- That it is, can scarcely be imagined, I think after reading the sections of the act already recited. It is manifest from the tenor of the second section, that where the defendant has been called upon to answer the plaintiff under a warrant of arrest, that a trial cannot be had, nor yet a judgment obtained against him, without his being personally present before the Justice at the time, or delivered upon special bail, such as I have specified above. It is unnecessary for the determination of this case, to decide whether the plaintiff, in error might not on the day of appearance before the Justice, have entered sufficient, special bail.for the defendant, and then as his agent have demanded a trial, and have compelled the plaintiff to have proceeded with the trial of the cause in the same manner as if the defendant had appeared himself. This, by the express terms in the close of the second section, might have been done by the bail to the constable, in ease the defendant neglected or refused to appear on the day fixed for that purpose in the bail-bond.

I cannot entertain the least shadow of doubt, but that the condition of the recognizance in this case, was forfeited; and that the plaintiff below, had a just right to maintain his action, which brings us to the third question: Was the note properly admitted-in evidence?

That part of the second section under which this recognizance was taken, requires that it shall be “for a sum sufficient to . cover the demand in question, together with the costs.” Thus it appears that the avowed objeet of the recognizance, is to secure the plaintiffin the recovery of his demand against the original defendant, together with the costs of suit. By this must be meant the amount that is justly due to him: because it would be highly unjust for him to recover more; but hów is this amount to be ascertained, if he is not to be permitted to give evidence of it, and the very best evidence too, that the nature of the case admits. For, the demand of the defendant in error, against Southioorth the origininal defendant, being grounded upon a note, the note itself was the very best evidence of the demand, after it was found to have been drawn by Southworth.

From the opinion of this court delivered upon the second question, it follows that the plaintiff in error’s third plea in the court below, was available in law, and the decision of the court upon it was correct.

The judgment is affirmed.  