Statement of the Case.

of paper attached together, and that in this case only the title of the cause, the name of the principal and sureties, the amount of the bail, in figures, the time at which the principal was to appear, and the cause for which he was to appear, were written in the said minutes; that the recognizance was put into form and written in a book kept for that purpose after said Court had adjourned, and that said recognizance, as repeated to prisoner and sureties, was not on the minutes kept in said Court.

Third. That the Defendant, Byron P. Tubbs, did not appear, &c.

Fourth. That said Byron P. Tubbs was unable to appear at said Court of Sessions, by reason of sickness and injuries arising from being thrown from a horse shortly prior to said March Term of said Court of Sessions."

And he states his conclusions of law:

First. That the recognizance upon which this action is brought was not executed in accordance with the requirements of the statute, and is void by reason thereof.

Second. That the sickness of the Defendant, and his injuries, disabling him from appearing at said March Sessions, is an excuse for his non-appearance thereat, and a valid defence to this action. He therefore directed judgment for the Defendants for costs, which was entered accordingly.

The special finding contained in the case, as settled by the referee, reiterates the findings embodied in his report, with the further finding, that the Defendants did, in open Court, at the time alleged, enter into the recognizance mentioned in the complaint, a copy of which was given in evidence; and that Byron P. Tubbs failed to appear, and an order was made by the Court estreating said recognizance, and ordering the same to be prosecuted as alleged in the complaint. To a question put to Mr. Tubbs, when examined as a witness, viz.: "Were you able to go to Court during Court week?" the Plaintiffs' counsel objected, and to its admission excepted.

From the judgment of affirmance the Plaintiffs appealed to this Court.

Opinion by Woodruff, J.

D. C. Cameron for the Appellants.

H. O. Southworth for the Respondents.

WOODRUFF, J.-The referee has found as a fact that the Defendant, Byron P. Tubbs, the principal, was unable to appear at the term of the Court at which he was, by the alleged recognizance, bound to appear, and at which, for such non-appearance, the said recognizance was estreated. And also that such inability was by reason of sickness and injuries arising from being thrown from a horse shortly prior to said term of the said Court.

These facts we are not at liberty to question.

The case is before us in a form permitting us to review questions of law only (Code, §§ 272, 268).

There was evidence in support of this finding, and it was competent for the Supreme Court to reverse if the findings were not satisfactory to them upon this point. We have no such power.

The question of law upon this finding is, Does an inability of the principal to appear, "by reason of sickness and injuries arising from being thrown from a horse prior to the term of the Court,” constitute a defence to an action upon the Defendant's recognizance?

I do not think that this should be regarded as an open question in this State. The recognizance is but a solemn contract. It is made of record, but that does not withdraw it from the general rule applicable to contracts, whether by parol, in writing, under seal, or in whatever form they are entered into.

In this State it is settled that the act of God or of the law will excuse the non-performance.

As to contracts in general, see Wolfe v. Howes (20 N. Y. 197) in this Court, affirming the decision of the Supreme Court (24 Barb. 174), and citing cases, text-writers, and reports from other States establishing the doctrine. The case of a replevin bond-Carpenter v. Stevens (12 Wend. 589). And as to recognizances in particular, see The People v. Manning (8 Cowen, 297); The People v. Bartlett (3 Hill, 570); The People v. Cook (30 Barb. 110).

The inability of the principal to appear, by reason of sickness, is, within these cases, the act of God which excuses, and is a sufficient defence.

Opinion by Woodruff, J.

On the trial, Byron P. Tubbs, the principal in the recognizance, was examined as a witness, and testified to his illness; that he was hurt on Friday; that on Monday, when the Court commenced, he had not got up; that he was confined to his bed nine days. The question was then put to him-"Were you able to go to Court during Court week?" To this question the Plaintiffs' counsel objected, and excepted to its allowance.

The witness answered: "No, sir; I was not able during Court week to go to Morrisville, and could not have gone.'

It is argued that this was objectionable, because the witness was not an expert, and that it was permitting the witness to determine a question of fact which it was within the province of the referee to determine.

Witnesses are often permitted to testify in the very terms in which a referee, or the Court, or the jury are to determine an issue— e.g., on an issue touching the making of a note, or the signing of an instrument; if the alleged signer be a competent witness he may testify in terms that he did not sign it, or that the signature is not in his handwriting. Or in an action for an assault and battery, the Defendant, when a competent witness, may be asked, and he may testify that he did not strike the Plaintiff; and the like is true in examples that might be multiplied almost indefinitely. The objection, therefore, that this was the very matter which the referee was to decide, amounts to nothing. He was to decide upon all the evidence bearing on the question, and the witness, in all such cases, may be contradicted, and his testimony be, perhaps, wholly discredited.

Was the evidence objectionable, as calling for the opinion of an expert? No such suggestion was made on the trial, and if it had been suggested it is possible that the Defendants might have obviated the objection by proof that the witness had every qualification of medical skill and experience which constituted the most thorough expert.

But I apprehend that the question did not call for an opinion. It was addressed to the conscious knowledge of the witness of the extent of his prostration. It added very little to what he

Opinion by Woodruff, J.

had previously stated, viz., that he was confined to his bed; but whether more or less, it is clearly competent for the witness to describe his actual condition. If he could not sit up, he knew it, presumptively, better than any one else; not as an opinion, but as matter of fact of which he was conscious, either from sensation or experience. So if he could not raise his arm, or could not walk, or could not go to Court.

I think the objection was properly overruled.

If these views are correct, the judgment must be affirmed, whatever our views may be of the sufficiency of the recognizance. All concur.

Judgment affirmed.

JOEL TIFFANY,
State Reporter.

Statement of the Case.

THE PEOPLE EX REL. GLENN'S FALLS INSURANCE
COMPANY v. HENRY FERGUSON ET AL.,
SORS OF QUEENSBURY.

Certiorari-Assessments-Corporations-Capital.

THE ASSES

Under the statutes respecting assessments, passed in 1853, and also in 1857, insurance and other corporations are to be assessed upon the actual value of their capital; and in determining the value of the capital stock, allowance must be made for their contingent liability on their policies which are outstanding.

A refusal on the part of assessors to make deductions for such contingent liabilities, is an error which may be corrected by certiorari.

THIS was a common law certiorari to review the action of the assessors of the town of Queensbury, and compel them to strike from the assessment roll of said town, for 1866, an assessment for personal property, and an entry on the assessment roll of personal property erroneously omitted in 1865. Instead of a return, the case has been argued upon a statement agreed upon as the facts, with a stipulation for the entry of judgment.

The case presents two questions for consideration:

1. Was the entry on the assessment roll of $30,000, as for personal property, alleged to have been erroneously omitted from the roll of 1865, authorized?

2. Was the assessment for $40,000, as for personal property, legal?

The first question was decided in favor of the Relators by the General Term, and as no appeal is taken from that decision by the assessors, the point does not arise in this Court, and the statement of facts respecting the same is omitted here.

Second. Upon the liability of the Relators to an assessment of $40,000 for personal property, the facts are these: The capital of the corporation is $100,000, all of which is paid in, and its surplus profits is $141,932.55; making, in all, $241,932.55.