dissenting. [Omitting the statement.] I am unable to perceive any sufficient reason for departing from what I have always understood to be the universal practice in this State, in regard to estreating recognizances of defendants charged with misdemeanors only. According to that practice the recognizance was- never estreated until the defendant had been convicted and had failed to appear to receive sentence, for the reason that until that time there was no occasion for his personal appearance. When the court had once obtained jurisdiction of the person of the defendant by his arrest, the trial could proceed in his absence, and there was no reason why his personal presence should be required. If he chose to absent himself at the trial, that was his own affair; and if he sustained any injury by such absence, he alone was responsible for it. It was not even necessary that he should appear in person and plead to the indictment, for in misdemeanors the defendant could appear and plead by attorney. As is said in 1 Chit. Grim. Law 411 : “Although we have seen that no one can be convicted of a felony in his absence, and at the assizes and sessions the defendant must appear in person before plea, it is otherwise in the King’s Bench in the case of misdemeanors, for the defendant may in that court, when the crime is inferior to felony, appear by attorney.” To same effect see 1 Bac. Abr., tit. Attorney, B., and 1 Com. Dig., tit. Attorney, B. 5, p. 623.
In this case it appears from the agreed statement of facts, that Tomkins had appeared by attorney, for it is admitted that the name of appellant’s attorney appears on the docket as counsel for said Tomkins. It seems to me, therefore, that there was no sufficient ground for estreating the recognizance in this case, and that the Circuit judge erred in ruling otherwise, and that he should have held that the recognizance was not liable to be estreated until Tomkins had been tried and convicted and failed to appear when called for sentence.
The argument drawn from the phraseology of the condition of the recognizance seems to me to be without support. There is nothing in the “Case,” as presented here, which shows what was the language used in the condition of the recognizance, and I am not aware of any statute prescribing the form of such *285instruments, from which it could be inferred that any particular form was used in this. case. If we are to take the form of the instrument from usage, then it seems to me that we should adhere to the construction which usage has given to such form, as exhibited in the universal practice hereinbefore alluded to. But, even supposing that it be conceded, as stated in the argument of the solicitor, that the form of the recognizance in misdemeanors is the same as in felony, requiring that the accused “personally appear * * * to answer to a bill of indictment to be preferred against him, and to do and receive what shall be enjoined by the court, and not depart without leave,” I do not see how that helps the argument. It is conceded that, though the form of the recognizance is the same in felony and in misdemeanor, yet the rule is different as to the obligations imposed in the two classes df cases, and this is sufficient to show that the form is not controlling.
The argument is that, according to what is claimed to be the form of this recognizance, the defendant is not only required “to do and receive what shall be enjoined by the court,” but that he is also required to “personally appear * * * to answer to a bill of indictment;” and, therefore, a failure to do either one of these two things operates a forfeiture of the recognizance. It will be observed, however, that there .is a third requirement in the language used, to wit: “ and not depart without leave;” and yet no one has ever contended that a failure to observe this third requirement would operate as a forfeiture of the recognizance. Indeed, it seems to me plain that the language relied upon affords only one of the numerous instances of that verbosity and tautology so frequently found in old acts of parliament and statutes and legal instruments, as to furnish no little foundation for the reproaches, not to say ridicule of laymen; and all that it really means is that the accused shall not put himself beyond the reach of the court when he is needed. At all events, this is the construction which has always been given, and I am quite satisfied to adhere to it.
I have not been able to obtain access to the case from Kentucky, relied upon by the solicitor, and, therefore, do not know whether it is in point or whether it rests upon some statutory *286provision or practice adopted in that State. But, even if it is directly in point, though entitled to great respect, it is not authority here; at least not sufficient to warrant the reversal of a practice which has long, if not always, been followed in this State, and which, so far as nay experience and observation goes, has worked very well.
For these reasons I cannot concur in the conclusions reached by a majority of the court.
Judgment affirmed.