People v. Cook

Where a surety enters into a recognizance for the appearance at court of a principal to answer an indictment, and subsequently the principal voluntarily enlists as a soldier in the army of the United States, where he is detained by military authoritywhen the recognizance is called and forfeited, the surety is not liable upon his recognizance.

The plaintiffs in this action allege in their complaint that on the llth day of August, A. D., 1864, the said defendants entered into and executed a certain recognizance, bond and covenant, under their hands and seals respectively, whereby they jointly and severally acknowledged themselves to be indebted to the plaintiffs in the sum of five hundred dollars, upon the conditions following, that is to say, that if the said Jefferson Miller should be and appear at the next term of the court of oyer and terminer, to be held in and for the county of Montgomery, then and there to answer to an indictment for larceny or other offence, to be preferred against him, and not depart the court without leave, then such recognizance was to be void, else to be in full force and virtue. And the plaintiffs further allege, that after the execution of said recognizance, to wit: on the said iTth- day of August, 1864, the same was duly filed in the office of the clerk of the county of Montgomery, aforesaid. And they further allege, that the next court referred to in said recognizance, commenced its session at the court house in Fonda, in said county, on the 19th day of September, 1864, and so continued until the 24th day of September, A. D., 1864. And the plaintiffs further say, that the defendants have not kept or performed the condition of said recognizance, in that the said Jefferson Miller did not be or appear at the said court of oyer and terminer, but upon being then and there called to answer, made default. And an indictment for larceny having been duly found, preferred and filed against him, the said Jefferson Miller, and he being called in the said court to answer thereto, did not appear, but altogether made default. Whereupon an order was duly made and entered of record in the minutes of said court, that the said recognizance be forfeited, estreated, and was ordered by the court to be prosecuted by the plaintiffs’ attorney. And they also aver that none of the covenants, agreements or conditions of said recognizance has been complied with or performed. Wherefore the plaintiffs demand judgment against the defendants for the sum of five hundred dollars, 'with interest thereon from the 24th day of September, 1864, besides costs. The defendants, John V. Davis and Jacob H. Cook, for answer to the plaintiffs’ complaint in this, deny each, every and all the allegations in said complaint contained. And for a second or further answer to said complaint, the said defendants aver that during the entire time the said court of oyer and terminer, held in and for the county of Montgomery, mentioned in said complaint was in session, and for a long time previous thereto, and ever since the 18th day of August, 1864, the said Jefferson Miller, one of t'he above named defendants, was a private soldier in the army of the United States, and under the control an4 directions of the President of the United States, as commander-in-chief of said army, and was then engaged in active service in said army, out of the state of New York, and was prevented by the commanding general of said army (who was legally and duly authorized by the said commander-in-chief to do such act), from appearing at said court of oyer and terminer, as he otherwise might, and could, and would have done, and requested leave of said commanding general to do, had it not been for such military interference on the part of said general, and the defendants insist that by reason thereof they are not liable on the recognizance mentioned in said complaint. Wherefore the defendants pray that the plaintiffs’ complaint be dismissed, with costs. The plaintiffs in this action demur to the second count or defence set forth in the defendants’ answer in this action, on the ground that the same does not state facts sufficient to constitute a defence to such action. This action having been brought to a hearing upon an appeal from an order and judgment of the special term of this court, made on the 21st day of February, 1865, and entered in Montgomery county clerk’s office on the 20th day of March, 1865, sustaining the plaintiffs’ demurrer to the defendants’ answer in this action, and the decision of the court upon the said appeal having been filed, whereby the aforesaid order and judgment is in all things reversed, now on motion of H. B. Cushney, defendants’ attorney, it is adjudged that the said order and judgment be, and the same is hereby, in all things reversed; and that the defendants recover of the plaintiffs the sum of one hundred and eighty-one dollars and thirty-five cents costs and disbursements in the action and on this appeal. Entered October 20th, 1865.