By the Court,
Douglass, J.
The first question reserved is, whether, as Benson was a party to the recognizance, this should not have been stated in the declaration.
The declaration does not show on its face whether he was a party or not. From a reference, on the brief of the defendants’ counsel, to Bevised Statutes, Chapter 134, Sections 42,43, which provide, that in the case there mentioned, the Circuit 'Court Commissioner shall be authorized to take the recognizance of a person imprisoned, and of two sufficient sureties, we suppose it is insisted that it is essential to a valid recognizance, that the person bound to appear should be recognized jointly with his sureties; and that, therefore, the declaration does not show a valid recognizance. But a recognizance is a common law obligation, and by the common law, the sureties may be bound separately from their principal; or without this principal being bound at all. (Minor vs. State, 1 Blackf., 236.) Therefore; the alleged omission cannot be availed of on motion in arrest of judgment, which is based solely upon defects apparent on the face of the record.
The evidence on the trial showed, that in this case.Benson, the principal, recognized jointly with the defendants; but it is well settled that in actions ex contractu the non-joinder of the co-contractor is not a ground of variance, and unless it appear on the face of the declaration, can. only be taken [616] advantage of by plea in abatement. (Rice vs. Shute, and note thereto, 1 Smith's Lead. Cas., 287, 292, 296; Cabell vs. Vaughan, 1 Wms. Saund., 291.)
And this rule applies to actions on recognizances and judgments, viz.: Wilson vs. The State, 6 Blackf., 212; Burgess vs. Abbott, 1 Hill, 476; S. C., 6 Hill, 135; Cocks vs. Brewer, 11 Mees. & Welbs., 51; Needham vs. Heath, 17 Verm. R., 224, 225; McGregor vs. Balch, Ib., 563, 567.
The second question is, whether the'recognizance was valid, because it did not contain a sufficient description of the offence. It was a recognizance to answer to an indictment for larceny, without describing what larceny; in this respect the recognizance was in the form sanctioned by long, and, as far as our knowledge extends, almost uniform usage, both here and elsewhere ; and we have no doubt that the naming of the offence, where it belongs to a class which has a definite and well understood general name, is sufficient. (See 1 Monr., 128.) We can see no good reason for requiring greater particularity, and the authorities do not seem to require it. (Gildersleeve vs. People, 10 Barb., 35; Hall vs. State, 15 Alab., 431; State vs. Weaver, 18 Ib., 293; State vs. Hamer, 1 Cart. [Ind.], 359.)
What we have said on this point, is a sufficient answer to the third question, which is : Whether the recognizance was void, inasmuch as it took no notice of the count in the indictment charging Benson as accessory before the fact.
The fourth question is, whether the l-ecognizance was void, becaxxse it did not state the circumstances uxxder which it was taken. Although, at one time some doubts seem to have existed upon the subject, we think it is now well settled, that where the recognizance has a condition to do some act for the doing of which such an obligation may properly be taken, and the Court or officer before whom it was acknowledged, had authority by law to act in cases of that general description, the recognizance is valid, although it does not recite [617] tbe special circumstances under which it was taken; and that, in declaring upon such a recognizance, it is not necessary to aver the existence of the particular facts which show that the Court or officer had authority to take it. (People vs. Kane, 4 Denio, 530; People vs. Millis, 5 Barb. S. C. R., 511; Archer vs. Commonwealth, 10 Grattan, 638; Champlain vs. The People, 2 Comst., 82; Gildersleeve vs. People, 10 Barb. S. C., 35.)
The fifth question is, whether parol evidence was admissible of the contents of the indictment, it having been destroyed. Although there has been some conflict in the authorities, this question also seems to be very well settled. Mr. Greenleaf, in the first volume of his Evidence, section 509, says : “If a record is lost and is ancient, its existence and contents may sometimes be presumed; but whether it is ancient or recent, after proof of the loss, its contents may be proved like any other document, by any secondary evidence, where the ease does not, from its nature, disclose the existence of other and better evidence. And the cases there cited, and in note (2), to section 81, fully sustain this proposition. See, also, Davies vs. Petit, 6 Eng. (Ark.) R., 349; Osborne vs. Eakin, 10 Smedes & Marsh., 549; Derritt vs. Alexander, 25 Alab. R., 265; Hill vs. Park, 5 Rich. (So. Car.), 87; Harris vs. McRea, 4 Ired., 81; Jackson ex dem. vs. Cullum, 2 Blackf., 228.
The sixth question is, in substance, whether the destruction of the indictment before the term at which Benson was recognized to appear, was not a good defence to this action on the recognizance.
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By the Court,
Douglass, J.
The first question reserved is, whether, as Benson was a party to the recognizance, this should not have been stated in the declaration.
The declaration does not show on its face whether he was a party or not. From a reference, on the brief of the defendants’ counsel, to Bevised Statutes, Chapter 134, Sections 42,43, which provide, that in the case there mentioned, the Circuit 'Court Commissioner shall be authorized to take the recognizance of a person imprisoned, and of two sufficient sureties, we suppose it is insisted that it is essential to a valid recognizance, that the person bound to appear should be recognized jointly with his sureties; and that, therefore, the declaration does not show a valid recognizance. But a recognizance is a common law obligation, and by the common law, the sureties may be bound separately from their principal; or without this principal being bound at all. (Minor vs. State, 1 Blackf., 236.) Therefore; the alleged omission cannot be availed of on motion in arrest of judgment, which is based solely upon defects apparent on the face of the record.
The evidence on the trial showed, that in this case.Benson, the principal, recognized jointly with the defendants; but it is well settled that in actions ex contractu the non-joinder of the co-contractor is not a ground of variance, and unless it appear on the face of the declaration, can. only be taken [616] advantage of by plea in abatement. (Rice vs. Shute, and note thereto, 1 Smith's Lead. Cas., 287, 292, 296; Cabell vs. Vaughan, 1 Wms. Saund., 291.)
And this rule applies to actions on recognizances and judgments, viz.: Wilson vs. The State, 6 Blackf., 212; Burgess vs. Abbott, 1 Hill, 476; S. C., 6 Hill, 135; Cocks vs. Brewer, 11 Mees. & Welbs., 51; Needham vs. Heath, 17 Verm. R., 224, 225; McGregor vs. Balch, Ib., 563, 567.
The second question is, whether the'recognizance was valid, because it did not contain a sufficient description of the offence. It was a recognizance to answer to an indictment for larceny, without describing what larceny; in this respect the recognizance was in the form sanctioned by long, and, as far as our knowledge extends, almost uniform usage, both here and elsewhere ; and we have no doubt that the naming of the offence, where it belongs to a class which has a definite and well understood general name, is sufficient. (See 1 Monr., 128.) We can see no good reason for requiring greater particularity, and the authorities do not seem to require it. (Gildersleeve vs. People, 10 Barb., 35; Hall vs. State, 15 Alab., 431; State vs. Weaver, 18 Ib., 293; State vs. Hamer, 1 Cart. [Ind.], 359.)
What we have said on this point, is a sufficient answer to the third question, which is : Whether the recognizance was void, inasmuch as it took no notice of the count in the indictment charging Benson as accessory before the fact.
The fourth question is, whether the l-ecognizance was void, becaxxse it did not state the circumstances uxxder which it was taken. Although, at one time some doubts seem to have existed upon the subject, we think it is now well settled, that where the recognizance has a condition to do some act for the doing of which such an obligation may properly be taken, and the Court or officer before whom it was acknowledged, had authority by law to act in cases of that general description, the recognizance is valid, although it does not recite [617] tbe special circumstances under which it was taken; and that, in declaring upon such a recognizance, it is not necessary to aver the existence of the particular facts which show that the Court or officer had authority to take it. (People vs. Kane, 4 Denio, 530; People vs. Millis, 5 Barb. S. C. R., 511; Archer vs. Commonwealth, 10 Grattan, 638; Champlain vs. The People, 2 Comst., 82; Gildersleeve vs. People, 10 Barb. S. C., 35.)
The fifth question is, whether parol evidence was admissible of the contents of the indictment, it having been destroyed. Although there has been some conflict in the authorities, this question also seems to be very well settled. Mr. Greenleaf, in the first volume of his Evidence, section 509, says : “If a record is lost and is ancient, its existence and contents may sometimes be presumed; but whether it is ancient or recent, after proof of the loss, its contents may be proved like any other document, by any secondary evidence, where the ease does not, from its nature, disclose the existence of other and better evidence. And the cases there cited, and in note (2), to section 81, fully sustain this proposition. See, also, Davies vs. Petit, 6 Eng. (Ark.) R., 349; Osborne vs. Eakin, 10 Smedes & Marsh., 549; Derritt vs. Alexander, 25 Alab. R., 265; Hill vs. Park, 5 Rich. (So. Car.), 87; Harris vs. McRea, 4 Ired., 81; Jackson ex dem. vs. Cullum, 2 Blackf., 228.
The sixth question is, in substance, whether the destruction of the indictment before the term at which Benson was recognized to appear, was not a good defence to this action on the recognizance.
"We think not The condition of the recognizance, was that Benson should appear at the then next term of the Circuit Court, and answer to an indictment against him for larceny, and then to abide the order of the Court. A man’s bail are his jailors, and they are bound to have him as much in the power of the Court, as if he were within its prison walls. Without appearance, or an order of Court to that effect, they [618] are never discharged. It would have been no defence to this action, if it had appeared that a nolle prosequi had been entered to this indictment. Hawkins, Bacon and Chitty lay down the law to be that “ if otie bound in recognizance for the appearance of another in the Court of King’s Bench at a fixed day, to answer to a particular information against him, and not depart until discharged by the Court, and a nolle proseqm is entered on that information, and another exhibited whereto the defendant refuses to appear, the recognizance is forfeited.” (Hawk., Tit. Bail, Book 2, Oh. 15, § 84; Baa. Air., Tit. Bail on Or. Gas.’, 1 Oh. Or. Lorn, 105.) The reason of the rule, as given by Hawkins, is : “For being express that the - party shall not depart until he be discharged by the Court, it cannot be satisfied until he be forthcoming, and ready to answer to any other information to be exhibited against him, while he continues undischarged, as much as to that which he is particularly bound to answer.” The subject under consideration was very ably and fully considered by the Supreme Court of New Jersey, in the State vs. Stout and others (6 Halsted R., 124.) That was sowe facias on a recognizance conditioned for the appearance of one Merseran, before the Supreme Court, “ to stand the traverse of a certain indictment against him for a misdemeanor, stand to and abide the judgment of the Court, and not depart the Court without leave.” The defendant plead that there was not, and never had been, any indictment pending against him in the Supreme Court. But it was held that this was no- defence to the action; that the recognizance was forfeited by the non-appearance of Merseran in the Supreme Court, whether there was any indictment then pending against him or not, and that it could only be discharged by an order of that Court. In Adam vs. The State (1 Blackf., 200), it was held that a recognizance for the principal’s appearance on the first day of a term of Court, was forfeited by his failure to appear on that day; and that the sureties would continue liable, [619] unless lie appeared during the term, although no indictment should be found against him. And The State vs. Cooper (2 Ib., 226), is another case to the same effect.
Present and concurring, Pratt, Green, Copeland, Martin, Johnson, Willson and Bacon, J. J.