Opinion
August Term, 1853.
A recognize conditioned for the appearance of a party at one day, is not forfeited by his failure to appear at another day, to which the holding of the court was changed by a law passed after the taking of the recognizance; the law containing no provision that recognizance should be returned and parties appear on that day. Whether such a provision would have made any difference. Quere?
(The case of Winslow v. Anderson, 20 N.C. 1, cited and approved.)
THE defendants, William Melton and Jesse Melton, were indicted for larceny in the Superior Court of Buncombe, and had respectively given their bonds in the usual form to appear and answer the said charge at the Superior Court of said county, on the first Monday after the fourth Monday of March, 1853. At Spring Term, 1853, the indictment was tried and the defendants convicted; who being thereupon called to answer the judgment of the court, failed to appear. Mr. Solicitor Burton moved for judgment nisi against each of said defendants and their sureties for the sum of five hundred dollars, the penalty of their appearance bonds; but his Honor, Ellis, J., before whom the matter was moved, being of opinion that, as the act of 1852 changed the time of holding said court to the second Monday, instead of the first, the defendants had not forfeited their recognizances, and he accordingly refused to allow the motion; and the solicitor for the State appealed to the Supreme Court.
Attorney-General for the State.
(427) J. W. Woodfin for defendants.
The bond executed by the defendants had a condition by which it was to be discharged, if the defendant, Melton, should appear at the next Superior Court of Law, to be held for the county of Buncombe on the first Monday after the fourth Monday of March, A.D. 1853, and not depart the court without leave. The act of 1852, chapter 44, section 2, changed the time of holding said court to the second Monday after the fourth Monday of March, 1853; but contained no provision directing recognizance to be returned, and the parties to appear, at that time. The defendant, Melton, however, did appear at the term then held, and was tried and convicted upon an indictment for petit larceny, but departed the court without leave; and upon being called to receive judgment, failed to answer. Was his bond forfeited by such failure? We think not, and that his Honor, therefore, properly refused to permit the solicitor for the State to have a judgment entered against him and his sureties, as for a forfeiture of his bond. The case of Winslow v. Anderson, 20 N.C. 1, is a direct authority to show that an obligation entered into by a party, stipulating for his appearance at the term of a court to be held on one week, is not broken by a failure to appear at a term held on a different week, though the wrong time was inserted by mistake. The obligors, when called at a time when they had not stipulated to appear, might well say, non venimus in hoc foedus. Whether the case would have been different, had the act of 1852, above referred to, contained a clause making all recognizances returnable to the term as changed, and requiring the parties to appear at such term, it is unnecessary for us to decide. As it is, there is no error in the order from which the appeal was taken, and it must be affirmed. The case of the State against Jesse Melton et al., is similar in all respects to the above, and the order therein appealed must also be affirmed.
PER CURIAM. Judgment accordingly.
Cited: S. v. Houston, 74 N.C. 176.
(428)