The opinion of the court was delivered,
by Sharswood, J.
This was ah action of debt upon a forfeited recognisance in the Quarter Sessions. The defendant below was the bail of Lewis Suter, and pleaded nul tiel record, and a special-plea that the condition of the recognisance was performed by Lewis Suter appearing, and that the said recognisance was not lawfully forfeited as to Isaac Mishler, the plaintiff in error. To this a replication, traversing the averments of the plea, was filed by the Commonwealth, tendering an issue to the country.
The 1st assignment of error is, that the court erred in entering judgment for the plaintiff on the plea of nul tiel record. The reasons specified in the assignment are, that there was no record showing that the recognisance was ever forfeited as to Isaac Mishler, or that the said Isaac Mishler ever consented that the same should be respited.
[60]*60The recognisance upon which the suit was brought was a joint obligation upon condition that Suter should appear at the next Court of Quarter Sessions, then and there to answer such things as should be objected against him on behalf of the Commonwealth, and not depart said court without leave. The record showed that a true bill was found, and on the 16th of April 1867 the trial was continued to May 27th 1867. On the following day Lewis Suter being called three times in open court and failing to answer, the recognisance was forfeited and respited to May 27th 1867. On May 27th 1867 the recognisance was again respited by order of the court to August sessions following, when Lewis Suter being again called three times and failing to answer, the recognisance was forfeited absolutely. The objection is, that the record does not show that Isaac Mishler, the bail, was called three times. Usually, recognisances of this nature are in form several, not joint: Binns’s Just. 139. When this is so, it would seem to be necessary that each recognisance should be separately forfeited in the usual and solemn manner. The bail should be called three times to bring forth the body of the principal whom he undertook to have there that day or forfeit his recognisance. Upon an entry of the forfeiture as to each, it would be conclusively presumed that this form had been pursued. But this obligation being joint and not several, the failure of Suter to appear and answer when called was a breach of t'he condition. Nor was this forfeiture rendered invalid by the subsequent respite of the recognisance, first to another day in the same term, and then to the following August sessions. The liability of the conusors was fixed absolutely, and the respite was merely an order that the forfeiture should not be estreated for a certain period. It is a power which has been always exercised, is recognised by the 26th section of the Act of July 30th 1842 (Pamph. L. 455), and seems essential to the administration of justice in mercy. A respite is a temporary suspension of the execution of a sentence — a delay] forbearance or continuation of time: Bouvier’s Law Dict.; Wharton’s Law Lexicon. It is true, that in Keefhaver v. The Commonwealth, 2 Penna. R. 244, Chief Justice Gibson states the practice to be to do this with the consent of the bail, in order to avoid the trouble of renewing the security: but that was a case in which the defendant had appeared, been tried and acquitted, and the jury having determined that she should pay the costs, there was no forfeiture of the recognisance until the following term. He was evidently speaking, therefore, of a respite of a recognisance before forfeiture. In such case the condition of the recognisance having been complied with, as far as the bail was concerned, by the appearance and trial of defendant, which was in effect a surrender, the obligation was gone. But it is a very different case when the condition has been broken. It is not easy to perceive upon what [61]*61principle mere indulgence thus accorded to the principal should discharge the bail. It is. entirely for his benefit, for it cannot be doubted that if the principal should surrender himself, 'and stand his trial at the term to which the case was continued, the Court of Common Pleas would remit the forfeiture, as they are authorized to do by the 2d section of the Act of December 9th 1783 (2 Smith 84), according to equity and their legal discretion.
The 2d assignment of error involves substantially the same question as the 1st; for if the recognisance was forfeited as to Mishler by the failure of Suter to appear according to its terms, there was no variance between the certificate of the clerk of Quarter Sessions given in evidence and the declaration.
The 3d assignment of error is that the court erred in rejecting the evidence of Mr. Reynolds, one of the counsel of Suter, offered to prove that Suter was in court at the sessions to which he was bound to appear, and that the case was continued on his application ; that he was discharged, and, by arrangement, the recognisance forfeited and respited until a subsequent day. So far as the offer .was to show an express discharge, it contradicted the record. That the forfeiture of the recognisance was by arrangement was immaterial. The fact, however, that the case was continued before the forfeiture, appears by the record; and, although the parol evidence thus offered was irrelevant and inadmissible, being either merely confirmatory of the record or contradicting it, yet it is proper to consider, in connection with the 5th assignment of error, that the court instructed the jury to bring in a verdict for the plaintiff, whether the continuance of the case necessarily implied that the defendant had leave to depart the court. The mere appearance of a defendant and then departing without such leave, clearly.does not release the surety: Commonwealth v. Coleman, 2 Metcalf (Ky.) 382 ; Starr v. Commonwealth, 7 Dana 243; The State v. Gorley, 2 Clarke (Iowa) 57; Humphrey v. Kasson, 26 Vermont 760. It is the express condition of the recognisance that he shall appear and not depart the court without leave. It is at all times in the discretion of the court, at any stage of a criminal trial, to call the defendant and forfeit his recognisance: The People v. Petry, 2 Hilton 523 ; The People v. Blankman, 17 Wend. 252; Gildersleeve v. The People, 6 Barb. 35; Wilson v. The State, 6 Blackf. 212; The State v. Stout, 6 Halst. 125. Upon the Continuance of the case, it is the duty of the court to have the recognisance renewed or a new one taken, or otherwise to commit the defendant to jail. The surety has bound himself only for his appearance at the next term, and his obligation does not extend to any subsequent term to which the-cáse may be.continued without his express consent: Keefhaver v. The Commonwealth, 2 Penna. R. 240; Kisser v. The State, 13 Ind. 30; The People v. Clery, 17 Wend. 374. If, then, [62]*62a continuance of the cause is itself an implied leave to depart, all that a defendant has to do is to leave the court as soon as the order for a continuance is made. The order for the renewal of' the recognisance necessarily follows the order for the continuance. The very question we are now considering has been decided by the Supreme Court of the state of Ohio in Swank v. The State, 3 Ohio (N. S.) 429. “ The continuance of the cause for trial to the next term,” say the court, “has nothing to do with the proper mode of securing the attendance of the prisoner at that term.
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The opinion of the court was delivered,
by Sharswood, J.
This was ah action of debt upon a forfeited recognisance in the Quarter Sessions. The defendant below was the bail of Lewis Suter, and pleaded nul tiel record, and a special-plea that the condition of the recognisance was performed by Lewis Suter appearing, and that the said recognisance was not lawfully forfeited as to Isaac Mishler, the plaintiff in error. To this a replication, traversing the averments of the plea, was filed by the Commonwealth, tendering an issue to the country.
The 1st assignment of error is, that the court erred in entering judgment for the plaintiff on the plea of nul tiel record. The reasons specified in the assignment are, that there was no record showing that the recognisance was ever forfeited as to Isaac Mishler, or that the said Isaac Mishler ever consented that the same should be respited.
[60]*60The recognisance upon which the suit was brought was a joint obligation upon condition that Suter should appear at the next Court of Quarter Sessions, then and there to answer such things as should be objected against him on behalf of the Commonwealth, and not depart said court without leave. The record showed that a true bill was found, and on the 16th of April 1867 the trial was continued to May 27th 1867. On the following day Lewis Suter being called three times in open court and failing to answer, the recognisance was forfeited and respited to May 27th 1867. On May 27th 1867 the recognisance was again respited by order of the court to August sessions following, when Lewis Suter being again called three times and failing to answer, the recognisance was forfeited absolutely. The objection is, that the record does not show that Isaac Mishler, the bail, was called three times. Usually, recognisances of this nature are in form several, not joint: Binns’s Just. 139. When this is so, it would seem to be necessary that each recognisance should be separately forfeited in the usual and solemn manner. The bail should be called three times to bring forth the body of the principal whom he undertook to have there that day or forfeit his recognisance. Upon an entry of the forfeiture as to each, it would be conclusively presumed that this form had been pursued. But this obligation being joint and not several, the failure of Suter to appear and answer when called was a breach of t'he condition. Nor was this forfeiture rendered invalid by the subsequent respite of the recognisance, first to another day in the same term, and then to the following August sessions. The liability of the conusors was fixed absolutely, and the respite was merely an order that the forfeiture should not be estreated for a certain period. It is a power which has been always exercised, is recognised by the 26th section of the Act of July 30th 1842 (Pamph. L. 455), and seems essential to the administration of justice in mercy. A respite is a temporary suspension of the execution of a sentence — a delay] forbearance or continuation of time: Bouvier’s Law Dict.; Wharton’s Law Lexicon. It is true, that in Keefhaver v. The Commonwealth, 2 Penna. R. 244, Chief Justice Gibson states the practice to be to do this with the consent of the bail, in order to avoid the trouble of renewing the security: but that was a case in which the defendant had appeared, been tried and acquitted, and the jury having determined that she should pay the costs, there was no forfeiture of the recognisance until the following term. He was evidently speaking, therefore, of a respite of a recognisance before forfeiture. In such case the condition of the recognisance having been complied with, as far as the bail was concerned, by the appearance and trial of defendant, which was in effect a surrender, the obligation was gone. But it is a very different case when the condition has been broken. It is not easy to perceive upon what [61]*61principle mere indulgence thus accorded to the principal should discharge the bail. It is. entirely for his benefit, for it cannot be doubted that if the principal should surrender himself, 'and stand his trial at the term to which the case was continued, the Court of Common Pleas would remit the forfeiture, as they are authorized to do by the 2d section of the Act of December 9th 1783 (2 Smith 84), according to equity and their legal discretion.
The 2d assignment of error involves substantially the same question as the 1st; for if the recognisance was forfeited as to Mishler by the failure of Suter to appear according to its terms, there was no variance between the certificate of the clerk of Quarter Sessions given in evidence and the declaration.
The 3d assignment of error is that the court erred in rejecting the evidence of Mr. Reynolds, one of the counsel of Suter, offered to prove that Suter was in court at the sessions to which he was bound to appear, and that the case was continued on his application ; that he was discharged, and, by arrangement, the recognisance forfeited and respited until a subsequent day. So far as the offer .was to show an express discharge, it contradicted the record. That the forfeiture of the recognisance was by arrangement was immaterial. The fact, however, that the case was continued before the forfeiture, appears by the record; and, although the parol evidence thus offered was irrelevant and inadmissible, being either merely confirmatory of the record or contradicting it, yet it is proper to consider, in connection with the 5th assignment of error, that the court instructed the jury to bring in a verdict for the plaintiff, whether the continuance of the case necessarily implied that the defendant had leave to depart the court. The mere appearance of a defendant and then departing without such leave, clearly.does not release the surety: Commonwealth v. Coleman, 2 Metcalf (Ky.) 382 ; Starr v. Commonwealth, 7 Dana 243; The State v. Gorley, 2 Clarke (Iowa) 57; Humphrey v. Kasson, 26 Vermont 760. It is the express condition of the recognisance that he shall appear and not depart the court without leave. It is at all times in the discretion of the court, at any stage of a criminal trial, to call the defendant and forfeit his recognisance: The People v. Petry, 2 Hilton 523 ; The People v. Blankman, 17 Wend. 252; Gildersleeve v. The People, 6 Barb. 35; Wilson v. The State, 6 Blackf. 212; The State v. Stout, 6 Halst. 125. Upon the Continuance of the case, it is the duty of the court to have the recognisance renewed or a new one taken, or otherwise to commit the defendant to jail. The surety has bound himself only for his appearance at the next term, and his obligation does not extend to any subsequent term to which the-cáse may be.continued without his express consent: Keefhaver v. The Commonwealth, 2 Penna. R. 240; Kisser v. The State, 13 Ind. 30; The People v. Clery, 17 Wend. 374. If, then, [62]*62a continuance of the cause is itself an implied leave to depart, all that a defendant has to do is to leave the court as soon as the order for a continuance is made. The order for the renewal of' the recognisance necessarily follows the order for the continuance. The very question we are now considering has been decided by the Supreme Court of the state of Ohio in Swank v. The State, 3 Ohio (N. S.) 429. “ The continuance of the cause for trial to the next term,” say the court, “has nothing to do with the proper mode of securing the attendance of the prisoner at that term. Indeed, until the continuance takes place, upon the motion of the state or prisoner, it cannot be known that the attendance of the prisoner will be required at the next term, and no recognisance could be required of him to appear at a subsequent time. It is the continuance which creates the necessity of the new recognisance.”
The 4th assignment of error is that the court erred in refusing to allow the record to be amended according to the facts. The court below thought that on the evidence presented by the bail they would not be warranted in allowing the amendment, and it is very clear that their decision is not the subject of review in this court: Rhoads v. The Commonwealth, 3 Harris 277.
The 5th assignment we have already considered. The 6th is that the court erred in calling back the jury after they had rendered a general verdict for the Commonwealth, and been discharged, and allowing them to amend their verdict by finding the amount of the penalty of the recognisance. This was certainly an irregular and erroneous proceeding; but it was an error which did the defendant below no harm. Upon the plea of nul tiel record, and a general verdict for the Commonwealth, the court were fully authorized to enter the judgment for the amount of the penalty which they did.
Judgment affirmed.