Wilborn J. Williford v. The State, 17 Tex. 653

Wheeler, J. If we were to construe the condition of the bond by the single expression, “ before the next Term of the Hon. District Court,” this phraseology, disconnected from the context, would favor the construction contended for by counsel for the appellants ; that is, that it requires the appearance of the party anterior to the time of holding the Court. But we must construe the instrument as a whole, and with reference to all its parts ; and so construed, it becomes apparent that such is not its meaning. It requires that the defendant “ shall be and personally appear before the next Term of the Hon.

District Court, to be begun and holden,” <fcc., stating the time and place of holding the Court, “ and attend from day to day and Term to Term, then and there to answer the State of Texas,” &c. The defendant is thus required to “ be and personally appear” before the Court, “ then and there” to answer, &c., which he could not do until the meeting of the Court. To place the meaning contended for upon the word before, therefore, would render the language employed repugnantfand contradictory in itself.

Such a construction as will defeat the intention of the instrument, and render it nugatory, is not to be adopted where the language will reasonably admit of a different construction, which will effectuate the intention.

And by attending to the latter clause of the sentence, “ then and there to answer,” &c., it appears, evidently, that the word before is used, not as a sign of time merely, but to mean in the presence ' of; and the evident meaning of the condition, is, that the defendant shall make his personal appearance before, that is in the presence of the Court, then next ensuing, “ then and there to answer,” &c. Thus construed, with reference to all its parts, there is no real ambiguity, and can be no doubt as to the import of the condition of the bond.

Then, as to the condition being more onerous than the law requires; we do not so regard it. The prescribed' condition is, that the defendant “ will appear at the District Court of the proper county, at the next Term thereof, then and there to answer the charges exhibited against him, and that he will not depart therefrom without leave of the Court.” (Hart. Dig.

Art. 2889.) The condition that he will not depart without leave of the Court, requires the defendant to attend from day to day and Term to Term, until discharged by the Court, and is of precisely equivalent legal import to the condition of the bond in this case. Thus, in The State v. Stout, (6 Halst. 124,) it is said a recognizance in general binds to three particulars : 1st. To appear to answer, either to a specified charge, or to Such matters as may be objected ; 2nd. To stand and abide the judgment of the Court; and 3d. Not to depart without the leave of the Court.

And each of these particulars is distinct and independent. The party is not to depart until discharged, although no indictment should be found against him by the grand jury, or although he be tried, and a verdict of acquittal rendered. If no trial is requisite, an order of discharge is regularly made by the Court.

If a trial results in a verdict of not guilty, the judgment of the Court contains a discharge ; which, in practice, is always supposed to be entered, although not always done. (Id. 133, 134.) The condition of the present bond, though not in the very words prescribed in the statute, is precisely the same in its legal effect. But if the condition to “ attend from day to day and from Term to Term,” were not authorized by the statute, it would not invalidate the condition requiring the defendant to appear at the Term next succeeding ; and as the forfeiture was taken at that Term, it must be supported.

For it is well settled that superadded words of condition, beyond what are authorized by statute, do not invalidate the recognizance ; but it has the same effect as if they had been omitted. (Howie v. The State, 1 Ala. 113.) It results that the Court did not err in the rulings complained of, and the judgment is affirmed. Judgment affirmed.