Waldron v. Harrison

2 Or. 87

• Court: Oregon Supreme Court
• Decided: September 15, 1863
• Status: Published

Opinion

Shattuck, J.

It is said that by the terms of this recognizance the sureties were bound only for Harrison’s appearance at the May term, 1862, and that a continuance of the cause until the September term, without their express consent, exonerated them from further liability.

It is admitted as a general rule that the obligations of a surety cannot be enlarged or extended without his assent; but we d.o not think, that in this case the respondents can claim any aid from that doctrine ; for by assuming to become sureties in this recognizance, they took upon themselves the office of voluntary jailors for Harrison; they became his keepers; and by the very terms of their obligation undertook to have him obedient and subject to all orders of the court. He was to go and come, whenever the court should direct, and they were to bring him whenever called. We think it was within the power of the court on the day named in this recognizance for the appearance of Harrison, to set down the case for a future day, even a day of the succeeding term, and to order him to come upon such future day to answer the charge made against him. This continuance, we think, was an order which these sureties undertook should be obeyed by Harrison ; and if on such appointed day he did not appear, and his sureties did not bring him, then the condition was literally broken. Harrison had departed without leave and failed to abide the order of the court. No express assent or agreement to stand as sureties until the future day appointed by the court was. necessary to continue their liability; they must be presumed to have been present in court with their prisoner, and to have known of the order made by the court; and they could have exonerated themselves by an express dissent, and by delivering the defendant into custody in open court; or, they could at any time, have carried him before a magistrate, and bad'him committed. Failing to do this, they remained bound for his appearance at tbe subsequent day appointed by tbe court. (People v. Clay, 17 Wend., 375.)

Harrison having failed to appear at tbe September term as ordered by tbe court, there was a default, and tbe plaintiff below should have judgment, unless tbe respondents by answer can show other matters in defense than those presented by tbe demurrer in this case.

Tbe judgment below must be reversed and tbe cause-remanded.