Weese v. People

Walker, J. The first question presented by this record for our consideration, is, whether the surrender of the principal in a recognizance by Ms security, and the discharge of the security, releases the principal from the effect of a forfeiture of his recognizance. The doctrine seems to be well settled that courts have no common law power to relieve against forfeitures of this kind. Pate v. The People, 15 Ill. R. 223, and the authorities cited. At common law, by the forfeiture the debt became absolute, and courts could not relieve until the power was given by statute of 4 Geo. 3, ch. 10, which has never been adopted in this State. But our legislature has changed the common law by the 196th sec., chap. 30, R. S. 1845, 187, by -which it is provided that, “ In all cases of bail for the appearance of any person charged with any criminal offense, the security or securities of such person or persons may, at any time before judgment is rendered upon scire facias to show cause why execution should not issue against such security or securities, seize and surrender such person or persons charged as aforesaid, to the sheriff of the county wherein the recognizance shall be taken, and it shall be the duty of such sheriff on such surrender, and the delivery to him of a certified copy of the recognizance by which such security or securities are bound, to take such person or persons so charged as aforesaid into custody, and by writing acknowledge such surrender, and thereupon the security or securities shall be discharged from any such recognizance, upon payment of all costs occasioned thereby.” It seems to be obvious that the legislature only intended to release the security. The language used will bear no other reasonable construction. It declares that the security shall be discharged from the recognizance. If they had intended to release both principal and security, they would certainly have employed very different language. When the recognizance is entered into, both principal and security become bound, and the legislature only provide for the release, by this means, of the security. But it is insisted that a release of one of several joint obligors, releases all. This is generally true, where the release is executed by the obligee, but is not, where the release is by operation of law. Tooker v. Bennet, 3 Cain’s R. 5; Nadin v. Battie & Wardell, 5 East R. 147. Under a similar statute to ours the Supreme Court of Indiana have held, that when a recognizance has been forfeited, a surrender of the principal by the security, while it discharges the security docs not discharge the principal. Lorrance v. The State, 1 Carter R. 359; McGuire v. The State, 5 Porter (Ind.) R. 65. Any other construction would defeat the object of the legislature. The party has the means to avoid the forfeiture, and if he fails to do so, it is at his peril. It was urged that the judgment in this case is final, and not a judgment of forfeiture, and that this proceeding on it was erroneous. The order shows that the principal and his security were called, and failed to appear according to the condition of the recognizance, and that it was declared forfeited, and then proceeds to render judgment, that the people recover one thousand dollars, the amount of their recognizance, and then awards a scire facias to show cause why judgment and execution should not be had on their recognizance. This judgment contains more than is usual in a judgment of forfeiture, but it declares the recognizance forfeited, and awards a scire facias. There is no award of execution, and under it a fi. fa. could not have issued: and in effect it is only a judgment of forfeiture. Though informal, it was evidently not intended as a final recovery. When the defendant and his security entered into the recognizance, they acknowledged, on the records of the court, that they were indebted to the people in the sum of one thousand dollars, and when the forfeiture took place, it thereby became an absolute judgment against the defendants, and only required an order of the court awarding execution. This order of the court finding the amount the people were entitled to recover, did not change the rights of the parties, and under this proceeding the defendants had every means afforded them to show why execution should not issue. We are unable to see dhat the defendant was injured 'in the slightest degree by the form of this judgment; and if not, he has no right to complain. We are unable to discover any error in this record, and are therefore of the opinion that the judgment of the Circuit Court should be affirmed. Judgment affirmed.