People v. Van Eps

By the Court, Sutherland, J. I am inclined to think that an action may be sustained in this court upon a criminal recognizance taken in a court of oyer and terminer. A recognizance is an acknowledgement of a debt of record; it has many of the attributes of a judgment. It binds the lands of the cognizor, and an execution may be issued upon it as upon a judgment. (1 R. L. 403, s. 9. Jacobs’ L. Dict. tit. Recognizance.) Unless, therefore, there is some statutory prohibition, either express or implied, it is not perceived why an action of debt may not be brought upon it. Prior to 1818, these recognizances, when forfeited were sent by the respective courts in which they were taken into the court of exchequer, whose duty it was to enforce them [391] by execution. (1 R. L. 402, s. 6.) The jurisdiction of that court being general, (territorially,) its process ran throughout the state; and it is unnecessary to determine whether a recognizance could then have been enforced by action, or whether the remedy was confined to the execution given by the statute. In 1818, (Laws of 1818, p. 306,) the collection of fines and recognizances was transferred from the court of exchequer to the courts of common pleas of the different counties in the state. The 7th section of that act directs, “ That all fines and recognizances which may be imposed and forfeited in any of the counties within this state shall be collected by the district attornies thereof, and paid to the county treasurer for the use of the countyand the 8th section enacts, “ That the court of common pleas of the several counties within this state, (of which the first or presiding judge shall always be one, for the purposes herein expressed,) shall possess the like powers relative to the collection and remission of fines and forfeited recognizances as are by law for that purpose vested in the court of exchequer.” It is here made the duty of the district attorney to collect the fines and recognizances. The manner of collecting them is left to his official discretion. If the parties and their property are within the county, it is his duty to take out an execution for their collection without suit; the court of common pleas having the same authority to issue such execution as the court of exchequer formerly had, and that being the most expeditious and least expensive mode. But the executions to be issued by the courts of common pleas cannot, I apprehend, run beyond their respective counties. These courts, in the aggregate, possess all the powers of the court of exchequer in relation to the remission and collection of fines and recognizances ; but the power or jurisdiction of each court is confined to its own county, and its process, when acting as a court of exchequer, is subject to the same limitations and restrictions which control its ordinary writs. The legislature have, in express terms, provided that subpoenas issued by the courts of common pleas and mayor’s courts may be served in any part of the state, (2 R. L. 147, 505;) and if they had intended in this instance to extend the [392] jurisdiction of those courts, they would have used equally uneqL-¿y0Cai language. Cases may, therefore, frequently arise in which neither the property nor the person of the cognizor can be reached by an execution upon the recognizance, both being beyond the county. In such cases, a suit in this court affords the only effectual means of collection. It is said that there is no case to be found in which a suit has been maintained in the king’s bench in England on a criminal recognizance. If it should be conceded that the king’s bench had no jurisdiction in such a case, it would not follow that this court had not. The ordinance of the governor and council for further establishing the supreme court of judicature within the province of New-York, adopted the 3d April, 1704. (Appendix No. 6 to 2 R. L. p. 13,) gives to this court all the jurisdiction which was possessed by the courts of King’s bench, common pleas and excheques in England ; and it now possesses all the jurisdiction of the English court of exchequer, except so far as that jurisdiction has been transferred or restrained by statute.. The court of exchequer, as it was originally organized after the adoption of the constitution, (Green, ed. Laws, vol. 1. 200,) and as it continued until recently abolished, (R. L. 400,) was but a department of the supreme court ; it was called in the act the court of exchequer in the supreme court. It cannot, I think, be contended that the act organizing the court of exchequer, (1 R. L. 400,) transferred to it all the powers and authority which were possessed by the same court in England. Its jurisdiction is strictly a limited one, confined to the subjects and to be exercised in the manner prescribed by the act; and although a general control and jurisdiction were given to it over forfeitures, recognizances, fines, &c. yet I apprehend that jurisdiction was not so exclusive as to oust this court of its ordinary power to sustain an action of established form upon a record or judgment of that court, in the same manner as it might be sustained upon the. judgment or record of any other court. Again, it is said if a recognizance can be prosecuted in this court, that the power to remit the forfeiture, which was formerly possessed by the court of exchequer, and now by [393] the courts of common pleas cannot be exercised. This is by no means a legitimate conclusion. The power of remitting fines and forfeitures was absolute and unqualified in the court of exchequer, (1 R. L. 400, s. 1,) and the act of 1818 confers the same authority on the courts of common pleas. The right of the court to remit a forfeiture cannot be affected by the fact of a suit having been commenced upon the recognizance in another court, any more than its control over one of its judgments would be taken away or impaired in consequence of an action of debt having been brought upon it. If a forfeiture should be remitted by the court of common pleas after a suit had been brought in this court, it would undoubtedly be a complete defence to the further prosecution of the suit; and the defendant could avail himself of it by way of plea puis darrein continuance or possibly by motion. I am of opinion, therefore, that the action is sustainable. But the declaration appears to me to be defective in not averring that the recognizance was ever filed in or made a record of any court. It does not, strictly speaking, become a recognizance, or a debt of record, until it is filed or recorded in the court in which it is returnable. All the precedents of declarations in debt on recognizance of bail, contain this averment. (7 Went. Plead. 55, 57, 60, 61, 73, 78.) It is an essential and fatal omission. It ought also to have been averred that the default of the principal for not appearing was entered of record; though this omission would not of itself be fatal, as it is averred that he was called and did not appear. The declaration commences by alleging that the defendant was indebted to the state in the sum of $600 of debt on recognizance, and then sets forth two distinct recognizances, each for the sum of $600. They were undoubtedly intended for two distinct counts; but then the debt should have been stated at $1200, and the first count should have been for $600 parcel of the debt, and the second for the residue. In these respects, the declaration is defective, and the first defect is certainly one of substance. The defendant is therefore entitled to judgment upon the demurrer, with leave to the plaintiff to amend.