County of Mendocino v. Lamar

By the Court, Shafter, J.: This is an action upon a recognizance given in a criminal proceeding. The complaint was demurred to on the ground that the right of action was not in the county but in the people; and that the complaint, furthermore, did not contain facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendants declining to answer, judgment was entered against them in due course. The appeal is from the judgment. First—The action is properly brought in the name of the county. Where a defendant convicted in a criminal proceeding is unable to pay the costs, or where he is acquitted, the costs become a county charge, and all fines and forfeitures, when collected in any Court in this State, are to be applied to the payment of the costs in which the fine was imposed or in which the forfeiture was incurred; and after such costs have been paid, the residue is directed to be paid to the County Treasurer of the county in which the Court is held. (1 Hit. Dig., Arts. 2,266, 2,281, 2,282.) The county has a direct interest in the collection of the amount due on the recognizance. If collected, the county will be relieved of the necessity of raising money for the payment of the costs by a resort to taxation; and in the event of a surplus, the surplus will belong to it by force of the legislative direction that it shall be paid into the County Treasury. Second—It is objected that the complaint does not aver that the recognizance was filed in Court or that it became a matter of record. This is stated as a special ground of demurrer. The objection is well taken. “ A recognizance is an obligation of record. Without record there is no recognizance ; and in an action on such obligation it should be alleged that the same was a record.” (People v. Huggins, 10 Wend. 472; [630] Bidge v. Ford, 4 Mass. 641; Tarbell et al. v. Gray, 4 Gray, ,445.) Judgment reversed and cause remanded, with leave to plaintiff to amend complaint within twenty days after notice óf filing of remittitur. Mr. Justice Saedebsow expressed no opinion.