Corlies v. Waddell

1 Barb. 355 | N.Y. Sup. Ct. | 1847

By the Court, Hurlbut, P. J.

It is contended by the defendant that he was authorized to receive the money, and that his receipt would be a discharge of the recognizances. The plaintiff, on the contrary, insists that the commissioner who issued the warrant had no right to take recognizances in criminal cases. On this point we are not fully satisfied; but we are of the opinion that the recognizances should not have been made returnable at chambers. The prisoner could not be bound to appear there; but the recognizances should have been made returnable before the court, at a term thereof. The majority of this court have come to the conclusion that the recognizances, and all subsequent proceedings, were utterly void. We have tried, we confess, to come to a different result, but find it impossible. There being a moral obligation resting upon the bail, had the money been received by any one having authority to apply it to the satisfaction of the recognizances—if it had reached its destination—the court might have allowed it to remain there. In that case we might have held that this was a voluntary payment, and if made under any mistake, under a mistake of law merely. The marshal bears the same relation to the circuit court of the United States that a sheriff does to our county courts; and his duties are very analogous to those of a sheriff. Now it cannot be contended, that Waddell was authorized to receive this money before an execution was duly issued, and placed in his hands. Then he could have done it: but until the process of the court was in his possession, he had no right to the money. Suppose him to have received this money as marshal, he having no process, and then he should squander it, the recognizance would not be considered paid. In this case, if the payment had been made to the United States through one properly authorized to receive it, we might hold the payment binding. Even if the money was handed over to the United States, we might so hold; but such is not the case. It is still in the defendant’s hands.

The superior court, in their decision, take the ground that as Waddell has been in the habit, for a long time, of receiving fines, penalties, &c., and afterwards accounting for them, this course has become sanctioned by usage; and that congress, in passing its annual appropriation bill, sets apart certain moneys in aid of the fines and penalties in the marshal’s hands, towards the contingent expenses of the court, thus making him virtually a disbursing officer of the government. This is a broad inference from narrow premises, and we cannot rest Mr. Waddell’s authority to receive that money on so untenable and frail a foundation. How then does the matter stand ? We can regard Waddell in no other light than as the agent of Bottomley, in this transaction. And while on his way to execute the commands of his principal, he is stopped by him and the authority revoked. Now if the defendant had been at the same time the-agent of the government, for the purpose of receiving the money, the case would be different. But such is not the fact. We have come to this conclusion most reluctantly, because there can be no doubt but that the money is properly due to the government ; but they must resort to their action upon the recognizances. The judgment of the superior court must be reversed, and a venire de novo awarded.

McCoun, J.,

dissented from the opinion of the majority of the

court, and concurred with the superior court. The payment by the plaintiff to Waddell was a voluntary payment, and its receipt by the marshal must be considered as a receipt by the government he represented. After such a payment, entirely voluntary on his part, the plaintiff has no right to complain, even though the recognizances were void. The money, when it came into the marshal’s hands, became vested in the government, and by previous acts of congress concerning moneys thus in the marshal’s hands, became appropriated. I am not prepared to say, that even if these recognizances were void, that fact can be taken advantage of in this court. The recognizances have already been acted upon in another tribunal, by the order entered for their escheatment, and directing execution to issue thereon; and it seems to me that the party should be left to his remedy there.