People v. Kane

Beardsley, J. A recognizance is defined to be “ an obligation of record, which a man enters into before some court of record or magistrate duly authorized, with condition to do some particular act; as to appear at the assizes, to keep the peace, to pay a debt, or the like.” (2 Bl. Com. 341; 2 Tidd’s Pr. 1083, Phil. ed. 1840.) It does not, like a bond, create a new debt, but is the acknowledgment of a precedent one, which, being carried into record, becomes binding and conclusive on the party. (2 Bl. Com. supra; 2 Shep. Touch. by Preston, 354, n.) Recognizances have been authorized for various purposes, one of which was to secure the payment of money by one person to another. This was allowed by the common law, and was expressly authorized by the statute of 23 Hen. 8, ch. 6. (Bac. Ab. Execution, B.; Com. Dig. Obligation, K., Statute Staple, B.; Coote’s Law of Mort. 76, 82; 2 Tidd, 1093, 6; Hall v. Winckfield, Hob. 195; Edgcomb v. Dee, Vaughn, 102, 3; Fanshaw v. Morrison, 2 Ld. Raym. 1138.) Of the same nature is the undertaking of special bail in civil actions, and the security given for the appearance of persons charged with criminal offences. There are many other purposes for which recognizances may be taken at common law, or under the authority of particular statutes. It is unnecessary, however, to enumerate or classify them, for differ as they may in their object or manner of execution, all such as may properly be termed recognizances agree in this, (and which alone is important now to note,) that the security, when complete, is matter of record. Obligations, which may be incurred for the payment of debts or the performance of other acts, are of various kinds. 1. Of record, or in the nature of a record. 2. By specialty. 3. By parol. No other class of securities for any such purpose is known to the law. — 535 — For the first of these the judgment or concurrence of a court is indispensable. The second are always sealed by the party to be bound thereby; and the last includes unsealed written agreements, as well as those which are merely verbal. (Rann v. Hughes, 7 D. & E. 350, n.; Ballard v. Walker, 3 John. Ca. 65; 2 Bl. Com. 465; 2 Steph. Com. 186. 7.) If securities of a different character are in any case valid, it must be under the special provisions of some statute. A recognizance is not a parol engagement; nor is it a specialty, not being under seal. It is, however, a record, and as such only can its obligation and validity be maintained by our law. The definition of a recognizance would seem to import that it is necessarily a record as soon as entered into. But, strictly speaking, this is incorrect; for a recognizance is not a record, until duly enrolled and filed. This rule is universal, for no proceeding can be regarded as matter of record before it has been enrolled and filed in a court of record. (Croswell v. Byrnes, 9 John. 287; Den v. Downam, 1 Green's R. 135; Cowen & Hill’s Notes to 1 Phil. Ev. p. 1013; Rex v. Bowman, 6 Car. & Payne, 101.) In civil actions, the recognizance of special bail is taken on a bail-piece, as it is called, and which, by statute, is directed to be signed by the bail. (2 R. S. 380, § 19; 1 Tidd, 250; Petersd. on Bl. 289; Grah. Pr. 177.) This is called, and rightly so, entering into recognizance as special bail. But the bail piece, although signed by the bail, and certified by the officer before whom it was acknowledged, is not a record; it is only a memorandum of the undertaking of the bail, which authorizes a recognizance roll to be made out and filed, whereby the obligation of the bail becomes matter of record. (Grah. Pr. 429; 1 Tidd, 277; 2 id. 729; Petersd. on Bl. 360, 361; Bevan v. Jones, 4 B. & C. 403; 2 Ch. Pl. 472 and notes, ed. of 1837; Green v. Ovington, 16 John. 55.) So too, although a recognizance, to secure the payment of money by one party to another, might, at common law as well as under the statute of 23 Hen. 8, ch. 6, be taken out of court, it was not a record until enrolled in court. (2 Tidd, 1083 — 536 — Bac. Abr. supra; Hob. supra; Bothomly v. Lord Fairfax, 1 P. Wms. 334; 2 Vern. 750, S. C.; Glynn v. Thorpe, 1 B. & Ald. 153.) And the same principle applies to recognizances taken by a court or magistrate for the appearance of a party charged with a criminal offence: the recognizance, although complete, is not in strictness a record, until made out in form and filed in a court of record. (The People v. Van Eps, 4 Wend. 393; The People v. Huggins, 10 id. 472; People v. Haddock, 12 id. 475; Bridge v. Ford, 4 Mass. 643; The State v. Smith, 2 Greenl. 62; Palister v. Little, 6 id. 350; 4 Bl. Com. 253; 2 R. S. 709, §§ 25, 6, 7; Id. 729, § 58; 1 Ch. Cr. L. 90, 91, 404, 105.) The mode at common law of taking such recognizances in criminal cases, is for the court or magistrate taking the same to state at large to the bail, the obligation entered into, and its condition, to which they assent. A short minute of this is made at the time, but it need not be signed, and from which, at leisure, a formal record of the recognizance is prepared. This is to be filed in the court where the party is bound to appear, and it thus becomes a record of that court. (1 Ch. Cr. L. 90, 92, 103, 5; Commonwealth v. Emery, 2 Bin. 434; The State v. Cherry, 2 Dev. 550; Same v. Mills, id. 555; Commonwealth v. McNiell, 19 Pick. 127; 4 Burns’ Justice, Recognizance.) Recognizances in criminal proceedings are still, with us, taken by courts of record in the same way; being entered in the minutes of the court, and the substance thereof read to the person recognized; but “ all other recognizances in any criminal matter or proceeding, or in any proceeding under the laws respecting the internal police of this state, shall be in writing and shall be subscribed by the parties to be bound thereby.” (2 R. S. 746, § 24.) This statute has reference to the mode in which recognizances are to be entered into and taken, and not to the manner of making them records. That remains as at common law, for the statute has not abolished the distinction between entering into a recognizance, and its consummation by record evidence of the obligation. The mere entry of a recognizance in the — 537 — minutes of a court of .record, is not a record on which suit can be maintained against the recognisor; nor does a recognizance, taken out of court, become a record by being signed as the statute directs. The first is merely an authority to make up and file a formal record of the obligation entered into, as an acknowledgment, proved by a similar memorandum of a magistrate, was sufficient for .that purpose at common law. But recognizances taken out of a court of record, must now be signed as well as acknowledged and certified. This the statute requires as a guard against mistakes and fraud, but it has not changed the nature of the obligation thus incurred. The recognizance, although signed, is not thereby transformed into a record, but must, at least, be filed in the court where the party is bound to appear, before that change can be effected. If the instrument signed by the conusor contain, as it well may, a full statement of the obligation entered into, it may, when filed, be very properly regarded as a record. But if it contain brief heads of what was acknowledged by the recognisor, and nothing more, it can hardly be regarded as a record, although such notes may be quite sufficient to justify the officer in making out and filing an extended and complete record of the obligation entered into. By statute, as has been stated, special bail pieces are to be signed, which was not required at common law, a certificate of an officer authorized to take the acknowledgment, being all that was necessary. At common law too, the same principle was applicable to the taking of recognizances in criminal proceedings, the integrity of courts .and magistrates being the only guaranty, in all such cases, for the accuracy of records made up on such vouchers. (The State v. Cherry, supra.) It has been deemed proper by the legislature, to require that all special bail pieces, and such recognizances as are taken out of *•. court of record, shall be signed by the persons to be charged thereby; but this has not changed the law in other respects. The bail piece, although signed, is not by that made a record, nor does the signature dispense with the necessity of filing a recognizance roll when proceedings are to be taken against the — 538 — bail. And, in my view of the law, a recognizance taken by a magistrate in a criminal case, and duly signed as the statute directs, does not thereby.become a record. It may, when complete in form and substance, become such on being filed in the proper court; but its vitality as a record does not depend on its being the original instrument, or the signature of the cognisor. In its consummation a recognizance always becomes matter of record. According to Lord Coke, records “ import in them such incontrollable credit and veritie, as they admit no averment, plea, or proofe to the contrarié.” (Co. Lit. 260, a.) The rule admits of some qualifications not material now to be considered; (1 Phil. Ev. 317; C. & H.’s Notes, pp. 799, 800, 801, 826, 909, 987, et seq.) but its general accuracy cannot be questioned. (1 Phil. Ev. 316; Patton v. Miller, 13 S. & R. 254; Glynn v. Thorpe, supra; The State v. Mills, supra; Bearblock v. Read, Cro. Eliz. 822, 734; Sadlers and their case, 4 Rep. 59, 60; Harrison’s case, 5 id. 28, 29; 2 Shep. Touch. 354; Math. Ex. and Adm. 142, 4.) At common law a recognizance had some of the qualities of a judgment. It would uphold an execution to levy the amount, and in favor of the sovereign it bound the lands of the conusor. (2 Tidd, 1083 to 1086, 1093; 2 Saund. 68, a, 1, 70, d, 3; Vin. Abr. Recognizance, F.; 2 Cruise, D. 51, §§ 4, 5, 6; The State v. Mills, supra; Allen v. Reesor, 16 S. & R. 10.) By statute, however, a recognizance is, with us, only evidence of a debt, and does not, in any case, bind land. (2 R. S. 362, § 21.) It might always have been enforced by an action of debt, and that is now the only remedy. (Commonwealth v. Green, 12 Mass. 1; 2 R. S. 485, § 29.) But, although a recognizance will no longer uphold an execution, nor is it a lien on land, it still has the most essential attribute of a record, for it importa absolute verity, and in its nature, is conclusive evidence of the obligation entered into by the cognisor. Every record should be complete of itself, and contain on :'ts face enough to show that it is legal and valid. Upon this principle records of judgments rendered are made up, for where jurisdiction is not presumed, the record must show such facts — 539 — as were necessary to give jurisdiction to the court by which the judgment was rendered. As to courts of general jurisdiction the law dispenses with all averments on this point, as it raises the presumption of jurisdiction. (C.& H. Notes, p. 1013, 1021, 987; Mills v. Martin, 19 John. 7, 33.) But the record of a court of limited authority, should show that jurisdiction of the particular case in which the judgment was rendered, had been duly acquired. These rules apply to recognizance rolls in civil suits, as well as to records of recognizances taken in criminal proceedings. Whatever is properly matter of record, and proceeded on as such, must exist and can be proved, in that form alone. The law will not permit it to rest partly in record and partly in parol, but it must be made complete in its proper form. The gist of an action being matter of record, it must be that alone. There is no form of action, the gravamen of which, properly speaking, can be in part matter of record or specialty, and the residue matter in pais. A record must be pleaded with a prout patet per recordwm, which may be answered by nul tiel record. (1 Ch. Pl. 404, 521; Arch. Civ. Pl. 149.) It is so where the proceeding is founded on the record of a recognizance, as well as in every other case. In civil suits, the recognizance roll shews a case which authorized bail to be taken. So are all the forms. (Prac. Forms from Tidd’s App. by Caines, 96, 97; Arch. Civ. Pl. 148, a; 1 Ch. Pl. 403; 2 id. 472, 7; 2 Saund. Pl. & Ev. 750.) And in criminal cases the record of the recognizance should also show a case in which the court or magistrate, was authorized to take bail. (1 Ch. Cr. L. 103; Petersd. on Bl. 509, note; The State v. Smith, 2 Greenleaf, 62; Commonwealth v. Loveridge, 11 Mass. 337; Same v. Daggett, 16 id. 447; Same v. The Bail of Gordon, 15 Pick. 193; Same v. McNeil, 19 id. 127; The State v. Corson, 1 Fairf. 473; The People v. Blankman, 17 Wend. 252; Same v. Brown, 23 id. 47; Same v. Koeber, 7 Hill, 39.) The proper form of declaring in debt on the record of a recognizance in a criminal case, is to set out the matters of fact — 540 — which constitute the foundation of the defendant’s obligation, and which must appear in the record. These should be stated with a prowl patet, and should be followed by proper averments to show a breach of the condition of the recognizance. Declarations on recognizances of special bail in civil cases, are drawn in this form. But the declaration in the case at bar ■ was not framed on any such principle. As disclosed by the declaration, the action seems to be founded on an obligation, created in part by matter of record, and in part by matter in pais. I know of no principle on which such an action can be upheld. Besides, a recognizance is an obligation of record. This is its definition, as given in books of approved authority. Every thing therefore, which constitutes the obligation ; that, by which the conusor is bound, must appear in and by the record. This is precisely what the declaration should contain, for good pleading is a statement of material facts, and except showing a breach of the condition, this is all that need be al Ieged in a declaration. There is a further difficulty in the present case ; for it is impracticable to ascertain from this declaration, with any thing like reasonable certainty, what is in, and what out of the record of the recognizance. In this particular the pleading is faulty. Much confusion has arisen from the use of the term recognizance to indicate not only the acknowledgment made by the conusor in entering into the obligation and the minute of the officer taking the acknowledgment, but also the obligation thus incurred, and the record evidence of such obligation. In the case of the State v. Smith, (supra,) the court say, “ It is settled law that a recognizance should state the grounds on which it is taken.” Again, in the Commonwealth v. Daggett, (supra,) “It is essential to a recognizance of this kind that it show the cause of taking it.” The term recognizance, as used in these and many other cases, must be understood as having reference to the record on which the action was founded, and not to the act of acknowledgment, or the minute thereof made at the time by the court or magistrate taking the recog nizance. Understood in this sense, the rule laid down in the — 541 — authorities referred to, applies to recognizances in civil as well as criminal cases. The recognizance roll on which suit is brought against special bail, must show, on its face, the grounds on which bail in the particular case was taken—that is, the court in which the original action was pending—what the action was, and the names of the parties thereto. The- recognizance in this case, was taken before the recorder of the city of Albany, who, being of the degree of counsellor in this court, was, by virtue of his office, a supreme court commissioner. (2 R. S. 281, § 32.) He ivas authorized to let to bail in all cases, persons brought before him charged with crime. (Id. 710, § 29.) Looking at the first count in this declaration the prisoner was not brought before the recorder charged with a crime, but on a writ of habeas corpus. The sheriff to whom this writ was directe d, should have made a return stating the cause of the imprisonment complained of; (id. 566, § 32;) and it was the duty of the recorder immediately to proceed and examine into the facts contained hi such return, and into the cause of the imprisonment. (Id. 567, § 38; p. 569, § 48.) And, by the statute, “ If it appear that the party has been legally committed for any criminal offence, or if he appear by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment be irregular, the court or officer before whom such party shall be brought, shall proceed to let such party to bail, if the case be bailable, and good bail be offered; or if not, shall forthwith remand such party.” (Id. 568, § 43.) This, as far as I know, is the only authority the recorder had, for letting a person to bail on habeas corpus, and the inquiry is presented, whether the first count in this declaration shows that such a case existed before that officer, when bail was taken by him. And it is plain that no such case appears by that count. It is not shown that any return was made to the writ of habeas corpus, or that the recorder was in any manner apprized of the cause for which the prisoner had been committed and was detained in custody. We cannot, therefore, as I think, see that a case existed before the recorder which authorized him to — 542 — take bail; and such being the fact; he had no power to take a recognizance. A recognizance is not merely an acknowledgment of a debt on a specified condition, but it is an acknowledgment, taken by a court or officer, in such a case and manner, that the law will permit a legal record thereof to be made. This is allowable where a case for taking bail exists before an officer, but not simply because bail is voluntarily given to procure the liberation of a party who is imprisoned. This count can hardly be said to be framed as on a record of a recognizance; and it is quite impracticable to ascertain what appears by the record and what by matter in pais. The proceedings before the police justice are stated at large, as also is the fact that an indictment was found; all which was wholly unnecessary. It would have been sufficient to allege that the prisoner was brought l efore the recorder on a writ of habeas corpus, to which the sheriff made a return, that he was in his custody on the mittimus issued by the police justice, setting forth the substance thereof, and that thereupon the recognizance was entered into by the defendant. These averments, adding time, place and circumstances, would have shown a proper occasion for taking bail; and the record of the recognizance, if in due form, would have proved such averments to be true. On such a record, supposing the condition of the obligation to be broken, an action of debt would lie, as upon a recognizance of bail in a civil suit. The declaration might be framed in the ordinary way, with a prout patet, followed by an averment of the breach of the condition. This count, as I read it, was not framed on any such principle; for it is impracticable to determine, from its multifarious statements, what appears by the record of the recognizance, and what in some other way. In my opinion the count is bad, and the de fendant should have judgment upon it. The second count alleges that the prisoner, being in the custody of the sheriff on a commitment for felony, was brought before the recorder of the city of Albany, &c. who thereupon took such recognizance as is mentioned in the first count. But it is not stated that the prisoner was brought before the recordei — 543 — on a writ of habeas corpus, or that he ever heard of the commitment by the police justice. I certainly know of no mode in which the prisoner, who was not under indictment, could lawfully be brought before the recorder otherwise than on habeas corpus; and if that writ was issued, and the recognizance taken thereupon, it should have been so stated. This count is open to objections like those stated against the first, and in my estimation is bad. In form, there is to a certain extent, a similarity between a bond and a recognizance; and they agree in this, that an action of debt will lie on each. But here the analogy ceases. A bond is always sealed by the obligor, but a recognizance need not be. A bond creates a debt by specialty, a recognizance one by record. In the latter respect it is like a judgment, and in its nature equally conclusive on the recognisors, infants as well as adults. (Macph. on Inf. 464, 491; 1 Inst. 380, b. 2; id. 673; Bing. on Inf. 43.) In every point of view, a recognizance is intrinsically different from, and superior to, a bond or other specialty; and upon no principle do I see that it can be regarded and enforced as a security of that nature. In vitality and effect it is a record, and should be counted upon and enforced as such. I think this declaration is bad, and that the defendant is entitled to judgment on the deizurrsrs. Bronson, Ch. J. A criminal recognizance taken out of court must be in writing, and be subscribed by the party to be bound by it. (2 R. S. 746, § 24.) It is no longer a lien upon lands, but is deemed a mere evidence of debt. (Id. 362, § 21.) And the remedy upon it, when forfeited, is by action of debt for the penalty, in which action the proceedings and pleadings are in most respects the same as they are in other personal actions for the recovery of a debt. (Id. 485, § 29.) These are all the changes, either in form or effect, which have been made by the legislature; and I entertain no doubt, that when the recognizance is returned and filed in the proper office, it is still, what the common law has declared it to be, an acknowledgment of — 544 — record; and like other records, it imports absolute verity. Thus far I agree with my brother Beardsley. But when the recognizance has a condition to do some act for the doing of which such an obligation may properly be taken, and the officer before whom it was acknowledged had authority by law to act in cases of that general description, I think the recognizance is valid although it does not recite the special circumstances under which it was taken. And in declaring upon such a recognizance, I do not think it necessary to aver the existence of the particular facts which prove that the officer had authority to take it. It is true that the want of such an averment has been thought a fatal objection. (The People v. Koeber, and The People v. Young, 7 Hill, 39, 44.) In the first of those cases it was not necessary to go so far; for the charge was burglary, the first degree of which is punishable with imprisonment for life, and the special justice had no authority by law to take a recognizance in such a case. And in several of the cases cited in The People v. Koeber, it appeared affirmatively that the officer who took the recognizance had no jurisdiction. (Vose v. Deane, 7 Mass. 280; Commonwealth v. Loveridge, 11 id. 337; Commonwealth v. Otis, 16 id. 198; Harrington v. Brown, 7 Pick. 232; The People v. Brown, 23 Wend. 47.) Of course these cases prove nothing upon the present question. This recognizance was taken by an officer who could let to bail in all bailable cases. (2 R. S. 281, § 32; id. 710, § 29; id. 728, § 56.) And it was a case where bail might by law be taken. In Bridge v. Ford, (4 Mass. 641,) it was said that the recognizance should recite the cause of taking it, so that it might appear that the officer had cognizance of the matter ; but the remark was not necessary to the decision of the cause. And that is also true of The Commonwealth v. Downey, (9 Mass. 520,) where it was again said, that a recognizance should recite the cause of its caption. On the authority of the two last mentioned cases, the same doctrine was again affirmed in The State v. Smith, (2 Greenl. 62,) but it was not necessary to decide the question. Nor do I find that it has ever been necessarily decided, unless it was in The People v — 545 — Young, (7 Hill, 44,) where, as I think, too much importance was given to the dicta which have been mentioned. As the recognizance must be conditioned to do some act for the doing of which such an obligation may properly be taken, it will, to that extent, show the cause of its caption. But it need not recite all the facts which prove that the officer had jurisdiction to act in the particular case. It is undoubtedly a well settled and highly important principle, that before any one can be affected by the judgment or order of a court or officer of special and limited jurisdiction, it must not only appear that the court or officer had authority to act in cases of that kind, but that jurisdiction had been acquired in the particular case. But there is an obvious distinction between cases where a charge or burden is attempted to be fastened upon a party by a proceeding in invitum, and those where the charge or burden springs from his own voluntary act. Here the defendant went before an officer duly authorized to let-to bail, and subscribed a recognizance for the appearance of Murray, to answer a charge of forgery; and the instrument has been filed of record; and I cannot think the recognizance void because it fails to recite the particular facts which led to the taking of it; nor that it is necessary in declaring to make any averment by way of fortifying or upholding the record. If we reject all such averments in this declaration as surplusage, the pleading will be sufficient in substance, though it may be defective in point of form. My brother Jewett is of the same opinion, and the people are entitled to judgment. Ordered accordingly.