The People v. Jayne.

remain in the custody of the officer during the examination and until he shall be discharged. (§ 17.) If the examination is adjourned, the justices are to take a bond for his appearance at the adjourned day, (§ 12,) the penalty of which, must be in such a sum as shall be deemed a full indemnity for the expense of supporting such bastard and its mother. (§ 16.) The object of this plainly was, that in case the person so charged should defeat an examination, and final order, by reason of his non-appearance, or non-attendance at the adjourned day, the public might be fully indemnified and secured against the support of the child. The policy of the statute looks, not so much to finding out who is the father of the child, as it does to providing for its support, and relieving the public from the burthen. And it inquires into and determines the former, only for the purpose, and as the means, of securing the latter.

The bond is intended to secure the appearance and presence of the person charged, at the adjourned day, as fully as it is secured by the warrant and arrest, upon an examination without adjournment. It is preposterous, as it seems to me, to suppose that the object and intent of the statute would be fulfilled by the momentary appearance of such person on the adjourned day, even though he might at once disappear, and remain away, or abscond, as he should see fit. The statute must receive such construction as will fulfill its plain object and intention. The obvious meaning and intention are as much a part of the statute as though expressed in ever so plain and explicit terms. The appearance, therefore, before the justices at the adjourned day, provided for by statute, must be held to mean, not his temporary appearance merely, but his continued appearance, and attendance, until the examination and subsequent proceedings are finally closed. This does no violence to the language, and gives full effect to the manifest will, of the legislature. (The People v. Stowell, 2 Denio, 127.) This part of the condition was, therefore, an essential part of the obligation, and was binding upon all the

The People v. Jayne.

defendants. It is entirely clear, from the evidence, that Jayne departed from the place where the examination was held, without leave, and went to his home, which was from a mile and a half to two miles distant, through the woods, and twice that distance by the highway; and that he was not at the place of the examination, and did not answer, when the justices closed their proceedings, although repeatedly called by them. It also appears clearly and without any contradiction, that when the evidence upon the examination was closed, the justices took a recess for tea, and that Jayne was then informed, by one of them, that he must not depart, as they intended to return soon, and finish the proceedings that evening. The justices, on reassembling after tea, determined from the evidence that Jayne was the putative father, and made the order of filiation, and Jayne not appearing, adjourned finally, and without day. They remained in session awaiting Jayne's return, and deliberating what course they ought to take in the premises, until ten o'clock in the evening, before finally adjourning. This departure and continued absence of Jayne, without leave, was, I think, a clear breach of the condition of the bond. It is perfectly immaterial, in my judgment, for what purpose, or with what intent, he left. It is enough that he departed voluntarily, and was not present to answer, and receive notice of the order when it was made. It is no answer to say that he intended to return and did return the next morning. He could not, to suit his own convenience, compel the magistrates to remain in session, or to adjourn over until another day. And there is nothing in the evidence to justify the supposition that the justices designed to take any advantage of Jayne's temporary absence. It is quite evident from the whole testimony that the justices did not know, or suppose, that he intended to return in the morning or at any other time. But, however this may be, it does not, as I conceive, affect the question of the breach, under the circumstances of the absence in this case, It is clear that he was not present, and did not appear, when his bond required him

to be there.

The People v. Jayne.

He was not present, either actually or constructively; as there can be no pretense that he intended returning, even if he intended to return at all, until the next day. The justices had the right to adjourn as, and when, they did. He had absented himself at his peril, and could not require the justices to follow him, or to remain in session until it might suit his convenience to return, for the purpose of giving him notice of the order they had made. This breach was in no respect healed or cured by the return of Jayne, the next morning, to the place, and his offer to the justices to submit himself to imprisonment in the county jail upon their warrant, as for a refusal or neglect to give the bond required by statute, upon notice of an order of filiation. The justices supposed that, having completed the examination, and made out the order, and adjourned without further day, their power in the premises was at an end; and they had no right to get together again, either for the purpose of taking the bond authorized by § 14 of the act, or of issuing their warrant for a neglect or refusal to give such bond. I am inclined to the opinion, however, that they still had the power to take such bond, or to issue such warrant, if they had seen fit to exercise it. In performing this duty they did not act strictly and technically as a court, but as justices, and their powers were not spent until they had done all that the statute authorized them to do in the case. This necessarily includes the power on their part to waive a breach of the bond taken on the adjournment, on behalf of the people. And this power, I think, they possess, and may exercise, in furtherance of justice, and of the ultimate remedy contemplated by the statute. But whether this be so or not, it is clear, I think, that they were in no respect bound to exercise it in favor of the defendants. The latter had no right to require the magistrates to assume what they regarded as spent, or doubtful powers, to relieve them from the consequences of the default of Jayne.

There is more doubt, I think, whether the justices could proceed and determine who was the father of the child, and

The People v. Jayne.

make a valid order of filiation, after Jayne had absented himself. But as this was after the evidence on the examination was through with, I think the order was valid. This, however, is not material, as I view the case. If it was valid, Jayne was in default in not being there to receive it, or notice of it, when it was made; and if it was invalid it worked no injury to the defendants. The proof that the order was made, was called out by the defendants. There was no error in refusing to receive the evidence of what Jayne's counsel had told him, in respect to his right to leave and go home. The advice could not affect the question of his right to absent himself, nor could his intention to return, if he entertained it. The evidence allowed from the justice, Mulford, that he told Jayne not to leave, as they should finish the matter that evening, was material upon the issue on which the case turned. It went clearly to show that Jayne had departed without leave. But if not material, in no possible view could it have injured the defendants, as the verdict was ordered subject to the opinion of the court, wholly irrespective of the question of Jayne's intention in departing. And it is now apparent that Jayne's intention neither aided nor prevented a breach. On the undisputed facts, therefore, the plaintiffs are entitled to judgment. There was no disputed question of fact which was at all material, to submit to a jury. The bond being for the appearance of the defendant Jayne, the judgment must be for the whole penalty of the bond. (The People v. Tilton, 13 Wend. 597.)

Judgment ordered accordingly.

[MONROE GENERAL TERM, March 1, 1858. Johnson, T. R. Strong and Smith, Justices.]

THE BANK OF ROME VS. THE VILLAGE OF ROME.

By an act of the legislature, passed in 1853, the president and trustees of the village of Rome were authorized to subscribe for, and hold, stock in the O., C. and R. Rail Road Company to an amount not exceeding $150,000, and to provide for the payment of such stock by issuing corporation bonds. Commissioners were appointed, who were empowered to sell the bonds, or exchange them for stock in the rail road. But it was provided they should have no power to negotiate, sell, or transfer such bonds, or create any liability, except upon the express condition that $500,000 should have been first subscribed by others, to the capital stock of the rail road company; and that before negotiating or transferring any of the said bonds the commissioners should make and subscribe a certificate, in writing, that such subscription of $500,000 had been actually made, and that in their judgment and belief the same had been made in good faith, and by persons able to pay their subscriptions; which certificate was to be filed with the clerk of the village. The commissioners having made and filed the certificate required by the act; Held, in an action against the Village of Rome, upon one of the bonds issued in pursuance of the act, that the making and filing of the certificate by the commissioners, was conclusive on the parties to the suit, as to the fact stated in it; and that the defendants could not go behind the certificate and show that in point of fact valid subscriptions to the amount stated had not been made.

BY

Y an act of the legislature, passed in 1853, (Laws of 1853, p. 596,) the president and trustees of the village of Rome were empowered and authorized to subscribe for, take and hold stock in the Ogdensburgh, Clayton and Rome Rail Road Company, to an amount not exceeding $150,000. (§ 1 of the Act.) By the second section of the act, the trustees were empowered to provide for the payment of the stock by issuing corporation bonds, under the seal of the corporation, signed by its president and treasurer, approved by the commissioners named in the act, and to be issued at such time as the commissioners should direct. (§ 2.) The third section names five persons to be styled the "commissioners of the rail road fund of Rome." These commissioners are authorized to sell the bonds or exchange them for an equal amount of the stock of the rail road. By the fourth section the commissioners are made personally responsible to the defendant for the faithful. discharge of their duties under the act, and they are removVOL. XXVII.

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