Cornell v. Reynolds

1 Cow. 241

Opinion

Curia, per Savage, Ch. J.

It is urged, that the bail was discharged, by the appearance of the defendant, Locy, "(before Stewart, Justice) remaining during the trial, and the subsequent attempt to surrender him. The language of the act is,

Footnotes

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(a) “ And if the adjournment is required by the defendant, he shall give sufficient security to appear on the day to which the cause is adjourned ; and, in default of such appearance, to pay the debt, or damages, and costs, if judgment shall be given against him,” &c.

It appears to me, that the legislature intended to give the defendant the benefit of an adjournment, and yet put the plaintiff in as good a condition as he was in on the return of the warrant. He then had the defendant’s person, to satisfy the demand, if no property could have been found. The condition of his liberty is, that he shall appear on the day to which the cause is adjourned. In Dunham v. Heyden, (7 John. 381) the defendant, in the original action, appeared at the trial, by attorney, and, the day after the trial, the bail offered to surrender the defendant to the Justice, who refused to have any thing to do with him. The Court decided that the word appearance means “ & personal appearance.” The undertaking of Cornell was, that Locy should appear on the day and at the place to which the cause was adjourned. Locy did appear, and attend the trial, until the same was ended, and his bail had offered to surrender him to the Court. In my judgment, the bail had performed his contract; and it was the misfortune, if not the fault of the plaintiff, that no officer was attending, to take charge of the defendant, Locy, when the bail had done all he could do to discharge himself of his liability, by surrendering his principal. The verdict of the jury, though informal, I think amounts to a verdict for the plaintiff; but, in this finding, they misapprehended the effect of the defendant’s undertaking. I am, therefore, of opinion that the judgment must be reversed.

Judgment accordingly.

1 R.L. 389.