Lang v. People

Cooley J. The judgment in this case recites that the said Aaron Lang, being under recognizance in the sum of three thousand dollars to appear and answer to an information to be filed for uttering counterfeit money as true, with Moses Lang and John S. Crellin as sureties, and having failed to perform the condition of such recognizance, which failure has been entered of record by order of the Court; and more than two days having elapsed since such entry, and no good cause to the contrary appearing, it is thereupon ordered that judgment be — 442 — entered, &c. The only assignment of error is, that the judgment was rendered “ upon a certain recognizance purporting to be signed and entered into by the plaintiffs in error, without giving notice to the plaintiffs in error or either of them, by the service of process or otherwise, that any ¡Droceedings were to be had against them or either of them upon said recognizance, whereby the plaintiffs in error were deprived of their right to contest the question of their liability upon said recognizance.” Another error was suggested on the argument, but as it was not specially assigned, we must consider it, under our rules, as waived. — Sup. Court Rule, 12; Webster v. Fisk, 9 Mich. 250. The questions which arise in the case, are, First, whether the statute authorizes judgment to be thus entered up, upon default being entered, without notice to the conusors; and if so, then, Second, whether such statute is constitutional. And we may be aided in coming to a conclusion upon these questions, by considering what was the nature of a recognizance, and what the effect of forfeiture at the common law. A recognizance is said to be an obligation of record, with condition to be void on performance of some act specified. It is entered into either before some court of record, or before a magistrate out of court, and afterwards enrolled in a court of record; but in the latter case it is the acknowledgment that gives the recognizance its force as a record, and the enrolment is for safe custody and notifying it to others. — 2 Tidd's Pr. 1083-4; 2 Wms. Saund. 8, i. (5) and cases cited. When forfeiture is declared and duly entered of record, the liability of the conusor is regarded as fixed, though there were always modes in which matters of excuse or of equitable consideration might be afterwards presented, depending somewhat on the nature of the case. If the 'condition was the performance of some act in court — as to appear and answer, or to give evidence, or prosecute' — the breach is to be adjudged by the court and entered of record when it occurs; while a recognizance to keep the peace would stand upon a somewhat — 443 — different footing, and a forfeiture could only be declared after trial, and upon proof of facts of which the courts could not judicially take notice. — Bac. Abr. Scire Facias, 2; 2 Tidd Pr. 1093; 2 Carr. & P. 10, and note; Queen v. Justices, &c., 7 A. & E. 583. A recognizance binding a party to appear in court, is said to be forfeited if he fail to appear, be the cause of his absence what it may. — Regina v. Ridpath, 10 Mod. 154; Rex v. Hankins, 1 McClel. & Y. 27; and in England it then became liable to be estreated; that is, taken out from among the other records and sent up to the Exchequer, which rendered the conusor an absolute debtor to the crown for the sum or penalty therein mentioned.' — 3 Pet. Abr. Bail IX, 1; 14 Id. Recognizance, IX, note; Pet. on Bail, 536; 2 Chit. Gen. Pr. 296. The principal question here is, as to the proper mode of enforcing a forfeited recognizance. The regular mode in England is said to be an extent in chief; though a scire facias is sometimes issued if it be doubtful whether the recognizance is forfeited. — 2 Tidd’s Pr. 1091. The process by extent does not exist in this country, and independent of statutory provisions prescribing a different course, the proceeding by scire facias would be the proper one. — Pinckard v. People, 2 Ill. 187; Alley v. People, 6 Id. 109; Sans v. People, 8 Id. 327; Besimer v. People, 15 Id. 439; Choate v. People, 19 Id. 63 ; Weese v. People, 19 Id. 643; Graham v. State, 7 Blackf. 313; Hall v. State, 15 Ala. 431. But it has been held that an action of debt might also be brought. — 5 Dane Abr. Ch. 150, Art. 4; People v. Van Eps, 4 Wend. 390. In either proceeding the recognizance, being a record, would import absolute verity, and would not be open to contradiction by parol evidence. — People v. Kane, 4 Denio, 543. The record of the forfeiture, I apprehend, would stand upon the same footing. But evidence might be received to show the recognizance forged; for if forged it was no record. — Patton v. Miller, 13 Sergt. & Rawle, 254; Elliott v. Green, 10 Mich. 113 ; and the question of the indentity of the defendant with the conusor — 444 — would always be open. The defendant might also plead any matter of discharge subsequent to the forfeiture; and it has been held a good bar to the action that performance by the principal was prevented by the act of God, — People v. Manning, 8 Cow. 297; or by his imprisonment elsewhere. — People v. Bartlett, 3 Hill, 570. But it is obvious that matters of excuse or discharge can only be presented by plea, when enforcement is sought by suit; and if suit was always essential, there could be no necessity for presenting such matters in any other mode. But the Court of Exchequer seems to have had original jurisdiction to relieve on motion; and by statute — 4 Geo. III. c. 10 — obtaining relief in that court by petition was made more easy and less expensive. — 14 Pet. Abr. Recognizance, IX, note; Highmore on Bail, 203; Note to 8 Exch. 822. A form of petition for this purpose, in a case where the indictment against the party bound to appear was ignored, will be found in Crown Cir. Companion, 1 Am. ed. (1816) p. 24; see also 2 Chit. Gen. Pr. 397. The subsequent statute of 3 Geo. IV, c. 46, has been held to take this power away from the Exchequer in cases of recognizances, forfeited at General or Quarter Sessions, but it authorized those courts to inquire into the circumstances of any case, and at their discretion to order the discharge of the whole of the forfeited recognizance, or any part thereof. — See Rex v. Hankins, 1 McClel. & Y. 27. The still later statute of 7 Geo. IV, c. 64, § 31, in view of the hardships frequently resulting from the indiscriminate estreating of recognizances, imposed an important restraint upon that process by requiring a list of the forfeitures to be laid before a judge of the court where the parties were bound to appear, who was empowered to make such order touching the estreating or putting in pi-ocess of the forfeited recognizance, as to him should seem just. —14 Pet. Air. Recognizance, IX, note. There was thus a consideration of the case by the judge before estreat, which, however, did not preclude the Court of Exchequer from granting relief afterwards on the party’s peti — 445 — tion. The forfeited recognizances mentioned in statute 3 Geo. IV, c. 46, § 4, were collected by writ of distringas and capias, os fieri facias and capias, unless relief was obtained from the court in the manner therein pointed out. — 14 Pet. Abr. Recognizance, IX, note. These statutes are only important here as they tend to show the understanding as to the legal effect of forfeiture. In the revision of our statutes in 1846, it was deemed proper, for some reason, to provide specially the mode of enforcing the penalty of a criminal recognizance, by action of debt or assumpsit. — R. S. Ch. 128, § 30; Comp. L. § 5140. The object of this provision was perhaps to substitute the more familiar forms of action for the proceeding by scire facias / though, as we have already seen, an action of debt might have been brought without any such statutory provision. It was found, however, that leaving the forfeitures to be enforced by suit was not a very effectual way of securing the purposes for which recognizances are taken; and that especially in those counties where the business in the prosecuting attorney’s office was large, suits sometimes failed to be brought after forfeiture, and sureties in criminal cases relied somewhat upon negligence in this regard for their immunity. It was accordingly provided by the act of 1861 (p. 136), that after the forfeiture shall have been duly entered of record, “ it shall be lawful for the court, after two days thereafter, unless good cause to the contrary be shown, to enter a judgment thereon in debt, and to order an execution to issue thereon,” “ for the full amount or sum specified in the said recognizance.” I see no reason to doubt that this statute is designed to authorize the entiy of judgment upon the recognizance, without the service of any process, or notice, if the parties to it fail to come in and excuse the default within the two days allowed by the statute for that purpose. The sole remaining question is that of constitutional power to pass this statute. I have not been able to satisfy myself that the statute violates any provision of the constitution. The recognizance — 446 — being entered into in view of the statute, the conusors must be taken to assent to judgment being entered in the mode the statute provides; and the same effect is to be given to their obligation, as if a stipulation for such judgment were inserted in it.- — Chappee v. Thomas, 5 Mich. 53. It cannot be said that the party is condemned unheard when he has stipulated that the proceeding may be taken against him, any more than where judgment is entered up on warrant of attorney. Moreover the recognizance is itself a notification to the parties to be present at the time appointed, and their express undertaking is that the penalty may be levied of their property if they fail to present the principal at that time. It is this undertaking which gives the court jurisdiction to adjudge the forfeiture; and the subsequent proceedings are only for the purpose of obtaining execution of a debt already fixed. All the direct authority there is upon the subject is in favor of the constitutional power. The validity of a similar provision seems to have been assumed in People v. Van Eps, 4 Wend. 390, and was directly affirmed Gildersleeve v. People, 10 Barb. 35. See also People v. Lott, 21 Ld. 130. There is no case opposed to these, and they do not appear to me to be unsound. There are doubtless objections to leaving matters of excuse or discharge to be presented by motion on affidavits; but they are objections of the force of which I think the legislative department must judge. The questions of fact are however the same, or similar in character, to those which are presented by motion in other cases where a party has incurred, or is supposed to have incurred, an obligation of record. The genuineness of a cognovit on which judgment has been entered, or the discharge of the demand by payment or otherwise after its date, or the satisfaction of judgment in any other case, may be a question proper to be passed upon by jury, but it must also be sometimes disposed of on summary application. It could hardly be claimed that a judgment on cognovit was erroneous because the defendant was not — 447 — allowed to put in issue before a jury the question of payment between its date and the rendition of judgment, though the authority to enter up judgment was expressly, or by implication, subject to the condition of non-payment. I am unable to distinguish this case in principle from that of Chappee v. Thomas. It is true that in that case the undertaking of the surety was, in effect, to abide the judgment of the court against his principal; but it is obvious that he might still have legal defenses which would not be open to the principal, and which he must still have the opportunity to make in some form. The ground of that decision was not that the surety was absolutely bound by a finding against his principal, but that, by his contract he had consented to judgment being taken in that form. The consequence is, that matters of legal defense which he might make before a jury, if the bond were sued, are now left to be presented by motion, or by some other proceeding, to vacate the judgment. -In Lewis v. Garrett's Administrators, 6 Miss. 434, the question was elaborately argued whether a statute authorizing judgment to be entered up against the sureties in a sheriff’s bond, without suit, where the sheriff’s return showed a liability, was constitutional; and the court sustained it on the same ground embraced in the decision in Chappee v. Thomas. Similar statutes are referred to in that decision, with the cases sustaining their validity. And it was held not to be an objection that such a law deprived the party of his right to a jury trial, inasmuch as by his contract he had assented to waive it. The case of Pratt v. Donovan, 10 Wis. 378, is also in point. The statute brought under review in that case authorized. judgment to be taken on motion against the sureties in a replevin bond, jointly with the principal, without the service of either process or notice upon the sureties. The court held such a judgment valid on the ground that by entering into the bond the sureties had assented to it, and waived their right to a trial in the ordinary — 448 — mode. The case of Gildersleeve v. The People is expressly referred to with approval in this decision. If any importance can be given to the fact that in the case before us the People are the party plaintiff, and that against them some common law remedy could not be taken which might be open in other cases, I do not see how any principle can be affected thereby. The People, in their collective capacity, might have occasion to bring replevin, or enforce a sheriff’s bond, or take judgment by cognovit; and there can be no question of their right to take the ordinary proceeding. No one, I presume, will contend that they would be deprived of this right, on the ground solely that all the same remedies might not be open to the defendant as if he were sued by a private individual. I am of opinion that the judgment of the Circuit Court was correct, and should be affirmed. Martin Ch. J. concurred. Campbell J. Judgment was rendered in the St. Clair Circuit Court against plaintiffs in error upon a criminal recognizance. No notice of any kind was given of the motion for 'judgment, which was ex parte, and made in supposed conformity to the Statute of 1861, p. 136. The record is otherwise defective; but, as this is the only error assigned, there is no occasion to consider any other point. The question to be disposed of is whether such a judgment can be sustained. It is claimed, on behalf of the people, that a recognizance, when filed, becomes record evidence of a liability, and that upon forfeiture declared this becomes complete without further ceremony. The law is plain that a recognizance becomes a record obligation; but this is simply because the party acknowledges it in the solemn manner necessary to give it judicial sanction. But whether a conditional liability — 449 — acknowledged by a party can become absolute by proceedings which he does not acknowledge, and has no opportunity of being heard upon, is a very different question, by no means dependent upon the character of the original obligation. A man may be estopped in many ways from disputing a conditional obligation, but whether the condition has been broken or not is a very different thing, upon which, in ordinary cases, he certainly is to be heard. And if such is not the case concerning criminal recognizances, it must be owing to some peculiar rule which distinguishes them from common debts. If a recognizance bound the maker at all hazards, and without regard to circumstances, to resjjond if the person charged should fail to appear in court at the time appointed, then there could be no great difficulty in maintaining the completed liability upon any such failure. But such is not the character of the undertaking. There are many cases in which, by compulsion of law, or by unavoidable accident, or by the action of responsible officers or parties, the person charged is lawfully prevented or excused from such appearance. And it has never been supposed by any one, and certainly no one has produced any decision tending to support the notion, that a failure to appear always absolutely forfeits the recognizance. Death, or lawful imprisonment, or absence under compulsion of law, are familiar instances of valid reasons for non-appearance. Nor has the law in all cases required the appearance to be impossible. For in the early statutes on this subject it was distinctly provided that, upon all debts and obligations to the crown, any defense based upon “ law, reason, or good conscience,” was admissible; and these words received a large and not a limited construction.—Tomlyn's Law Dic. “King 6; 7 Coke's R. 19 b, 20 a; Tidd's Pr. 1077. A record obligation to the king was in most cases enforced in a somewhat different manner from the claims of individuals. By certain early statutes, debts created in the form of recognizances were enforced by peculiar proceedings in the Exchequer, sometimes by scire facias, — 450 — and sometimes by extendi facias. There is some reason to doubt whether criminal recognizances came within the same rule with those which were merely money obligations ; and I have been able to find no case in the English books which classed them together. But the matter is not very important, for there never was any process to collect -any royal debt, which condemned the debtor without giving him a chance to be heard in his defense. Some confusion has arisen from the fact that an extent is a species of execution, and that sometimes an immediate extent might issue before or without a scire facias. The only case in which an immediate extent was permitted was where there was an affidavit filed, showing a positive indebtedness, and an immediate danger to the debt, in which case a fiat was granted by a Baron of the Exchequer. This affidavit was required to comply strictly with the law, and to show insolvency. — King v. Marsh, 13 Price, 826; Rex v. Pearson, 3 Price, 288, 292. It is held in this last case that the Crown has no right to elect between scire facias and immediate extent, but must make out a clear case of insolvency. It is also held, contrary to some loose dicta formerly received, that the whole proceedings connected with the collection of crown debts are at law, and not in equity; and that the parties’ rights are legal and not subject to discretion. — Gases above, and 11 Price, 643, cited in note to Tidd's Pr. p. 1048. It is also laid down that an extent will not lie if there is any doubt about the obligation being clearly forfeited.— Tidd’s Pr. 1045, 1091. Nor does it lie against sureties.— Tidd's Pr. 1046, 1091. And where the obligation was conditioned to collateral purposes, and not for a mere debt, it seems an extent was not granted. — Ib. (And see also King v. Lamb, 13 Price, 649.) But the extent, even if granted in such cases, did not cut off the party from any defense. It was rather analogous to proceedings in attachment, where upon a proper showing .there may be .a preliminary seizure of property, to answer — 451 — any final adjudication, but where the merits are in no way prejudiced by the preliminary steps. The party charged had a right to introduce any defense of law or of fact, and might interpose objections in the nature of a demurrer, or might plead, and traverse or avoid the facts on which the recovery depended. In short, he could use any defense in these proceedings, as fully and completely as on scire facias.—Tidd's Pr. 1077. The cause might be tried either at nisi prius or at bar. — Id. 1080. And if the defendant prevailed he was entitled to an amoveas manus, whereby the seizure was remitted.- — Id. 1081. But, as already suggested, it is by no means clear that criminal recognizances were under any circumstances enforced without scire facias. There are very few authorities on the subject, but there seems to have been a general recognition of the illegality of proceeding without a regular suit in any case. It is said, in Rolle's Abr. 900, that the Sessions cannot proceed against recognizors for non-appearance or for breach of the peace, but that the recognizance should be removed into one of the courts at Westminster Hall, who should proceed by scire facias upon it, and not by indictment, for the reason that the party might have some good defense that he should be allowed to plead. This doctrine is recognized and approved by the text writers generally. — Bacon's Abr. “Scire Facias," C, 2; Hawk. P. C. Book 1, ch. 60, § 18; Tomlyn's Law Dic. “Surety of the Peace," “ Scire Facias,” 3; 4 Inst. 181. The practice is described in a note to Rex. v. Wiblin, 2 C. & P. 10. And in the case of The Queen v. The Justices of the West Riding of Yorkshire, 7 Ad. & El. 583, the court refer very plainly to the illegality of attempting to fix a party’s liability without a trial. See also note to Rex v. Hankins, McC. & Y. 26-31; In re White, 1 New Sess. ca. 9; cited, 5 Harr. Dig. 1514. In many eases the recognizances might be estreated into the Court of Chancery or King’s Bench, as well as into the Exchequer, and could not then be carried into the Exchequer until after judgment on scire facias, and — 452 — the return of a fi. fa. or ca. sa. unsatisfied. — 2 C. & P. 10; Hawk. P. C. B, 1, ch. 60, § 18. It hardly requires the citation of authorities to show that a scire facias is an action, and subject to the same rules with other actions, concerning defenses. — Com. Dig. Plead. 3 L. 3, 10; State v. Harlow, 26 Me. 74. The condition of a recognizance is not broken by the entry of a default, but by the facts which, if not excused, will justify such entry. — Dillingham v. U. S. 2 Wash. 422; State v. Robb, 16 Ind. 413. And, inasmuch as the liability arises only upon an unexeused breach of a condition, it would be contrary to every principle of law to estop a party, by an ex parte finding', from showing that he is excused. It is impossible that a person can have a legal defense which he has no legal means of asserting. The law has always recognized many things as legally discharging a person from performing conditions. ■ Thus the obstruction of the obligee is held sufficient, and the instance given is a recognizance to the King for appearance, where the party is subsequently, and before the time for appearance, imprisoned by the King’s authority.— Com. Dig. “Condition," L. 6. So by the act of God, or the act of the law.— Com. Dig. “ Condition," L. 12, 13. And the American cases recognize the same doctrine. —People v. Manning, 8 Cow. 297; People v. Bartlett, 3 Hill, 570; People v. Clary, 17 Wend. 374. The genuineness of the recognizance, or the identity of the obligor, must also be open to inquiry.— Viner's Abr. “Recognizance," E.; Brown's Abr. "Recognizance," 6; Elliott v. Green, 10 Mich. 113. And this can best be done by traverse. —Ex parte Stowell, cited 5 Harr. Dig. 1514. It would be a very anomalous practice — to say the least — to try forgery or identity, so as to absolutely fix or discharge a legal liability, on affidavits, unless a party saw fit to accept such a test. And to fix a liability, without any notice at all, has already been decided by this Court to be beyond the power of any tribunal. — Montgomery v. Henry, 10 Mich. 19. Except — 453 — in the cases of Gildersleeve v. People, 10 Barb. 35, and People v. Lott, 21 Id 130, no authorities have been discovered giving any credit to the notion that the liability of an obligor can be fixed on a recognizance without a hearing. The case of Chappee v. Thomas, 5 Mich. 53, is in no sense ojoposed to this view. In that case the recognizance was a preliminary to the jurisdiction of the court to try the appeal, and the liability was not conditional upon any matter in pais, but absolute to respond to the judgment of the Circuit Court. Such an undertaking could not be excused by any misadventure which would not destroy the judgment itself, and the act of the court was the very thing contemplated. Being absolute, it was, as there explained, equivalent to a warrant of attorney to the Circuit Court to confess judgment. The cases, with the exception of those in Barbour’s Beports, above referred to, agree that nothing short of an action of some kind can fix the liability of the obligor. — Johnstons v. State, 3 Ark. 524; Pinckard v. People, 2 Ill. 187; Sans v. People, 8 Ill. 327; Graham v. State, 7 Blackf. 313; State v. Harlow, 26 Me. 74; Schneider v. Commonwealth, 3 Metc. Ky. 409; State v. Glass, 9 Iowa, 325. It was held in State v. Hopkins, 30 Ho. 404, affirming a former decision, that the validity of a liability under recognizance could not be properly tried at all until scire facias had been brought upon it, and an attempt thus made to enforce it. And the same doctrine is laid, down in Regina v. Sydserff, 2 Dowl. & L. 564; (5 Harr. Dig. 1514). If the party has no right to be heard before judgment, then it cannot be said that he has any way whatever of enforcing his legal defense. As between private parties, possibly, an audita querela would lie, but that, (being in itself a recognized form of action, upon which process issues as in other cases to bring in the defendant,) cannot lie against the government— Viner’s Abr. “Audita Querela,” 1; Fitzh. N. B. 102, et seq.; Brooks v. Hunt, 17 Johns. 484. And this may be the reason why in all cases of debts of the crown the traverses — 454 — and other forms of defense were allowed' upon extents, on recognizances and other obligations, where among private parties the remedy by audita querela was most frequent. For the old authorities furnish more instances of a resort to it upon statutes and recognizances, than in any other cases. And although the practice on audita querela has become superseded by motion, and practically obsolete for most purposes, yet where the parties dispute the facts on which relief is sought there can be no question of the right to have a trial by jury, and the benefit of proceedings in error, where the matter is one of legal cognizance, and not discretionary.- — - Nathan v. Giles, 5 Taunt. 558; Lister v. Mundell, 1 B. & P. 427; Symons v. Blake, 2 C. M. & R. 416; Baker v. Ridgway, 2 Bing. 41; Hanson v. Blakey, 4 Bing. 493 ; Hewes v. Mott, 6 Taunt. 329; Graham's Pr. 450. It has been held quite uniformly that legal proceedings which do not provide for due notice to the party charged, and which do not give him a chance to have his rights tested in a legal way, are not due process of law, and are in violation of constitutional right. Such has frequently been held by this Court. — Hibbard v. People, 4 Mich. 126; Parsons v. Russell, 11 Id. 113; Ames v. Port Huron Log Driving & Booming Co. 11 Id. 139; Price v. Hopkin, 13 Id. 318; Groesbeck v. Seeley, 13 Id. 329. For these reasons the judgment in question was unauthorized and could not be made valid by legislation. A neglect on the part of prosecuting attorneys to do their duty, under laws affording ample remedies to the State, cannot authorize the introduction of new remedies whereby private rights are unlawfully endangered. Christiancy J. So far as relates to the trial of the question of default for non-appearance, I see no objection to the statute; that is a question depending upon the record, and to be tried by the Court, and not by a jury. — 455 — And if the cognizors never appeared and were never notified to appear in court prior to the judgment, I am inclined to think the trial of the question of identity could hardly be urged against the validity of the statute; since that question must in such case, I think, be looked upon as undetermined by the judgment, and still open to the defendants whenever an attempt should be made to enforce the judgment against them by execution. The record in this cause does not show whether any of the cognizors aj>peared or attempted to show cause or not; nor does it show any notice to them of the proceedings to take judgment. Independent of this statute, the recognizance in a criminal case has always been understood to impose upon the cognizors the duty not only of securing the appearance of the principal to answer, but that he should abide the order, and not depart without the leave of the court. By this statute, if they have failed to secure the appearance of the principal, they are required, at their own peril, to take notice of the entry of the default for non-appearance, (to which there can be no constitutional objection), and if they have any matter of defense or excuse to allege against a judgment, for the amount of the recognizance, they are required of their own motion, within two days after the entry, to present the same to the court; and failing to do this, or, (as I understand the statute,) failing to show sufficient cause, the court is authorized to enter a judgment against them, in debt, for the amount. Now if, upon appearing within the time to show cause, the statute had made provision for a regular trial of the questions which might be involved, securing substantially the same rights as they would have been entitled to in an action brought upon the recognizance, no objection could have been made to the validity of the statute. And if this statute could be construed as authorizing the judgment to be entered only in cases where no motion or attempt is made to show any cause within the prescribed time, I should agree with my brother Cooley, that the recog — 456 — nizance, having been entered into under this statute, should be understood as incorporating its terms, and therefore as an express authority, after the time agreed upon had exjDired, to enter the judgment in this manner in all such cases, within the principle recognized in Chappee v. Thomas, 5 Mich. 33. But the statute will not admit of this construction. The language is “unless good cause to the contrary be shown”; clearly showing the intent to make the statute apply equally to cases where no attempt is made to show cause, and to those in-which the attempt is made, but the cause shown shall be deemed by the court insufficient. And the entry in the present case is in accordance with this view of the statute, and would be equally true, whether no attempt had been made to show cause, or the attempt had been made and the cause shown had been adjudged insufficient; — “No good cause to the contrary aj>pearing to the Court,” &e. The statute, therefore, authorizes the court to try not only the truth of the facts offered in excuse or defense, but their sufficiency as a legal defense to the forfeiture. And as no mode is provided, nor any allusion made to any issue or form of trial, and it clearly appears by comparing this statute with that formerly in force, that no regular trial, as of an action, is contemplated, the inference is irresistible that the intention' of this statute was to authorize the courts to try these questions, both of fact and law, in a summary manner, upon motion or petition, and upon affidavits. Now, while there may be many matters of excuse in such cases which would appeal only to the discretion of the judge — as to which this mode of proceeding would be unobjectionable, — yet, as has been sufficiently shown by my brother Campbell, many other facts may exist, and may be shown, which in themselves constitute a full and complete legal defense against a forfeiture for non-appearance. Many of these defenses consist of matters in pais, in no way determinable by inspection of the record. Of all such matters of legal defense, I think the cognizors must be held to have a constitutional right to a trial, substantially as in — 457 — ordinary actions at law, and the right to demand a jury; unless by entering into the recognizance under this statute they can properly be held to have waived these rights, and consented to the mode of trial provided by the statute. Upon this question I have felt much doubt, but have finally arrived at the conclusion, that as to all defenses which admit the voluntary execution or acknowledgment of the recognizance, it is competent for the parties thus to waive their rights, and to consent to the mode of trial provided by the statute; and that by voluntarily executing the recognizance under this statute, they must be held to have done so, and that the statute as to these defenses is therefore valid. But as to those defenses which involve a denial of the voluntary execution or acknowledgment of the recognizance by the defendants — such as forgery, non-identity, or its procurement by duress — there is no possible ground for the application of the doctrine of waiver; and as to these the cognizors are entitled to the ordinary and constitutional modes of trial. And, notwithstanding some respectable authorities to the contrary, I have been unable to discover any satisfactory principle upon which the trial of the latter class of defenses, in the summary mode authorized by the statute, can be held to satisfy the constitutional requisition of “ due process of law,” or that which secures the right of a trial by jury. When the recognizance is taken in open court and entered upon record, no signature being necessary, the defense of forgery could not be set up. But from the record in the present case it would appear that the recognizance in question must have been taken before a magistrate and returned into court, in which case it is required to be signed; and the defense of forgery is, therefore, I think, open to the defendants, as well as that of identity or duress. It may with truth be said that questions of this nature might arise in cases like that of Chappee v. Thomas, and cases of a like character; but in such cases the judgment is not absolutely final and conclusive, upon questions of this kind. The defendants in such cases, — 458 — between individuals, would be entitled to the benefit of such defenses by resorting to the common law remedy by audita querela. But, as shown by my brother Campbell, this is a remedy which cannot be resorted to against the State. ■ As we are not authorized to say such defenses did not exist in the present case, when the defendants below had no right or opportunity secured for presenting them, and when the record would have been the same had they been presented and overruled, I must concur with my brother Campbell, that, so far as the statute in question applies to the present case, it is in violation of the Constitution, and that the judgment is therefore erroneous and should be reversed. The court being thus equally divided, the judgment below was affirmed.