State v. Desforges

Simon, J.* Castera and Andry, two of the defendants, are appellants from a judgment on a bond taken by the Recorder of the Second Municipality of New Orleans, for the appearance before him of Desforges, their principal, on a charge of having embez [258] zled, and converted to his own use, funds of the Commercial Bank of New Orleans. The petition states, that the bond sued on was taken by the Recorder i and that, by reason and in consequence of the non-appearance of Desforges, before said Recorder, to answer the complaint lodged against him, and of his departure from the State without the leave of said Recorder, the same was forfeited, and the parties thereto “ became all liable and responsible to the State,” &c. The appellants filed several exceptions, among which we find the following plea: “that the Criminal Court is without jurisdiction, special laws having been enacted, determining the mode of proceeding and the extent of jurisdiction of the Criminal Court for the recovery of the amount of bonds, obligations, and recognizances due to the State in criminal cases, and said special laws not justifying, nor in any manner authorizing the mode of proceeding in this case, nor giving jurisdiction to this court.” Under this plea, it has been urged by the appellant’s counsel: 1. That the State cannot recover on the recognizances sued on, because nothing is due on it to the State by its forfeiture : and 2d, That nothing being due to the State, the Criminal Court is without jurisdiction to enforce the payment of said bond. This position of the appellant’s counsel, does not appear to have been taken below, except so far as it denies the jurisdiction of the Criminal Court; but the question, though not perhaps strictly presented by the pleadings, seems to be one of those, which, tending to destroy the plaintiff’s action, or rather to show his absolute want of legal right, may be taken advantage of at any stage of a cause. It is not based upon a mere want of capacity to sue, which is to be specially pleaded or denied; but it is an attempt to establish, that the plaintiff has no interest whatever in the subject matter of this suit, and that the right of action does not belong to the party who seeks to enforce it. Brown and Sons v. Saul et al., 4 Mart. N. S. 487. Here, the petition alleges, that the parties to the bond became all liable and responsible to the State, and if it be true that the State has no interest in the matter in litigation, it is clear that no recovery can be had at the suit of the Attorney General. The appellants’ counsel relies upon the 4th section of an act of [259] the Legislature, approved 1st of April, 1835, p. 179, which provides : “ that all bonds and recognizances taken by the Associate Judges, Mayor, or Recorder, within the city of New Orleans, for the public peace, or in criminal matters generally, shall, when forfeited, be recovered by the City Attorneys, for the use of the Corpora'ion of New Orleans, all laws to the contrary notwithstanding and he maintains that the bond, given in this case, when once forfeited, becomes the property of the Corporation of New Orleans. This is not the only instance in which forfeitures are given by the Legislature, to public institutions, or political corporations. In some cases they are allowed the benefit of the fines and forfeitures, without having the right to sue for them ; but in others, they are specially authorized to sue for their recovery, in their own corporate names. So, under a law of 1842, (acts of that year, p. 484,) all fines and forfeitures incurred under the act, are to be recovered in the name of the Police Jury of the parish of Concordia, before the Parish Judge ; and so, in this case, the bond or recognizance sued on, having been taken by a Recorder within the City of New Orleans, in a criminal matter, is to be recovered by the City Attorneys for the use of the Corporation. It is obvious, therefore, that, from the moment that the Jbond was forfeited, the Corporation became vested with the right to sue for the recovery of its amount through its attorneys, whose duty it was to institute proceedings for that purpose, for the use of the said Corporation ; and it is clear that the Attorney General could not enforce the payment of the bond, in the name and for the benefit of the State. We have been referred to several authorities in support of the position taken by the appellants’ counsel, which appear to sustain it. In 3 Summer, 120, it was held, that “ the action to recover a penalty or forfeiture must be brought in the name of the government, unless some other mode for the recovery is prescribed by the statute.” See also Adams v. Wood, 2 Cranch, 336. Here the mode is prescribed by the statute ; its terms are clear and positive, and exclude the idea of the action’s being brought in the name of the State, for the recovery of the bond which the appellants may have become liable to pay to the Corporation of New Orleans. It cannot be disputed that the action to be instituted [260] for the recovery of the recognizances given by the defendants in this suit, is a civil proceeding. Its forfeiture having become a matter of record, may be put in suit in the ordinary way. 12 La. 538. 14 La. 195, And it is a well known rule, that no one can be permitted to institute suits at law, to enforce obligations in which he has no concern. 2 Mart. N. S. 254- It has been urged that the act of 1835, which confers on the City Corporation the power of collecting and receiving the amount of the bonds and recognizances taken by the Recorder in criminal matters, was evidently repealed by the special statute of 1837, p. 73, requiring all sums paid into the State Treasury from forfeited' bonds and recognizances to be set apart, to the extent of $40,000 per annum, for the permanent support of the Charity Hospital. This act contains no repealing clause, and does not seem to refer to the law relied on by the appellant’s counsel (of the 1st of April, 1835,) This last law provides for a limited and special class of bonds and recognizances, to wit, such as are taken by the Associate Judges, Mayor and Recorder, within the City of New Orleans ; whilst the disposition of the bonds and recognizances taken in the other parishes of the State, including those taken in the other parishes of the First Judicial District which are within the territorial jurisdiction of the Criminal Court, remain unchanged, and are to be recovered under the provisions of two other acts of the Legislature, approved’the 2d of April, 1835, (Acts of that year, p. 219,) and the 11th of M,arch, 1837, (Acts of that year, p. 99 ;) the amounts whereof, after recovery, are to be paid over to the State Treasurer to be disposed of according to the provisions of the different statutes. Thus it may well be said, that in order to give effect to the law of 1835, which is not inconsistent with the law of 1837, (p. 73,) and is not repealed thereby, the provision of the latter act should extend over all sums of money which may be collected and paid into the Treasury of the State, arising from the recovery of all forfeited bonds and recognizances, except those which, by the special provision of the act of 1835, belong to the City of New Orleans, and are recoverable for the use and benefit of the said Corporation. It is clear, as maintained by the appellants’ counsel, that if the proceeds of the bond sued on, were not to be recovered by the State, and paid into the State Treasury at [261] the time when the law of 1837 was passed, the provisions of said law do not include, and were not adopted in contemplation of, the proceeds of bonds and recognizances which had been previously appropriated for the use of, and properly belong to, the City of New Orleans. The view we have taken of the'first question, precludes the necessity of inquiring into the jurisdiction of the Criminal Court, in this case, for if the State has no right to sue for the recovery of the bond, this action cannot be maintained even before a court of competent jurisdiction ; and we conclude that, as the right of action does not belong to the State, but ought tobe exercised by the. City Attorneys, for the use of the Corporation of New Orleans, tbe present proceeding ought to be dismissed. It is therefore ordered, and decreed that the judgment of the Criminal Court be annulled, and reversed, and that this suit be dismissed. Footnotes [*] This case was decided on a re-hearing.