Green & Green v. Ovington & Bleecker

Spencer, J. delivered the opinion of the Court. The course of the argument adopted by the counsel did not appear to me adapted to this case. The plaintiff declares in debt, on a record of recognizance of bail entered into by the defendants, in the Mayor’s Court, as of April term of 58 that Court, in 1810; and refers, in his declaration, to the recoí¿ 0f recognizance remaining in that Court, in the usual form of declaring on records of judgment or recognizance, prout patet per recordum. The defendant’s plea impeaches the record, in stating that the bail-piece, which is the warrant for the recognizance record, was not acknowledged by the defendants, until after the judgment in the original cause, to wit, the 24th of January, 1811 ; and the plea concludes with the allega-, tion, that the hail-piece is void. As the plea is clearly bad, it is unnecessary to take any particular notice of the replication. Although the recognizance of bail is taken before a single judge of a court, it is, in legal contemplation, done in court; and it is so entered. The bail-piece is a mere memorandum of the recognizance, authorizing the making up the record of recognizance of bail, and when that is filed, it becomes a record of the Court; and the party in . whose favour it is acknowledged, may, on its being forfeited,. bring either a scire facias, or debt, at his election. The .validity of records, among which are recognizances of bail, cannot, in pleading, be impeached or affected by any sup, posed defect or illegality in the transaction, on which they were founded.; nor can. there he any allegation against the validity of a record. (1 Chitty PI. 354. and the cases there cited.) It is to be observed, that all the pleas by bail, of which we have any precedent, state matters consistent, with the record. If the record is untruly stated, the defendants can avail themselves, of such defect, only by pleading ml tiel record. Judgment for the plaintiff.