3 Conn. Super. Ct. 434 | Conn. Super. Ct. | 1936
The defendant, Harris Gans Co., Inc., is a Connecticut corporation and having its office and principal place of business in Norwalk. The plaintiff is of the City and State of New York, in other words a non-inhabitant of this State.
The writ recites "Jennie A. Slavitt of Norwalk, Conn., is recognized in $75.00 to prosecute etc.". Also "I, A. D. Slavitt, the subscribing authority, hereby certify that I have personal knowledge as to the financial responsibility of the plaintiff *435 and deem it sufficient to pay costs in this action."
The said defendant pleads in abatement because the plaintiff, a non-inhabitant, has failed to post a bond for prosecution as is by statute in such case made and provided.
The said plaintiff in his answer to the plea in abatement, "avers that the Writ, Summons and Complaint instituting said action, contains the required recognizance as provided by the Practice Act and the Rules of Court, therein contained." The subscribing authority frankly stated in open court that he did not actually take any written recognizance but that he recognized Jennie A. Slavitt under a general blanket oral authority.
The plaintiff claims that the certificate contained in the writ, as to personal knowledge of the subscribing authority as to the financial responsibility of the plaintiff, is sufficient. Such a claim, however, is erroneous. It will be noted that Section 5619 of the General Statutes, Revision of 1930, states "if the plaintiff in any civil action shall not be an inhabitant of this state," and this is followed by the word "or". It is a claim of the plaintiff that this word "or" makes a certificate a sufficient notation on the writ, even though the plaintiff is not an inhabitant of this State. The section refers to any plaintiff who is not an inhabitant and such a plaintiff must enter into a recognizance; likewise any other plaintiff who is an inhabitant of this State when it does not appear to the subscribing authority that the plaintiff is able to pay costs.
If a defendant thinks a subscribing authority is in error when he certifies as to the financial responsibility of a plaintiff who is an inhabitant of this State he has an immediate remedy by filing a motion for bonds for prosecution.
The defendant relies in part on a decision rendered by this Court on November 7, 1935 in the case of Eckstein Sonsvs. Gorin, file No. 36479.
A bond for many years has been held to be an instrument in writing signed and under seal.
Denton and Smith vs. Adams,
This case holds in part: —
"One question" (of several) "arises on this demurrer *436 The declaration does not, in terms, allege that the bond was signed and sealed, but it declares on the defendant's writing obligatory". This term in law implied a deed, and includes sealing. "This is so holden by Sargeant Williams, in his notes to Saunders' Rep. Vol. 1, p. 291 and approved by Chitty, Vol. 1, pages 348 and 360".
In the case of Taylor and another vs. Glaser, 2 Sargeantand Rawle 501, at 502. (Supreme Court of Penn. year 1816) it is stated: —
"It has been heretofore decided that any mark made by a pen, in imitation of a seal, may be considered as a seal. The usual mode is to make a circular, oval or square mark . . . . but the shape is immaterial; something, however, there must be, intended for a seal and the writing must be delivered as a deed . . . . this relaxation is confined to the manner of making a seal. Sealing and delivering is still the criterion of a specialty".
Some cases hold that a recognizance is even "higher" than a specialty.
The case of Deming vs. Bullitt, I. Blackford's Reports, 2ndEdition, at page 241, (Supreme Court of Indiana, 1817 to1848) holds that an instrument of writing containing the words sealed with my seal, etc., but having no seal on it, is not a deed. If the declaration describe a bond as the cause of action, and the writing (instrument) shown on oyer be not sealed, the variance is fatal on demurrer.
The case of McLeod et al vs. State,
In the case of Williams, appellant, vs. The State of Florida,25 Florida Reports 734, it is held a seal, or a scrawl, to which the statutes gives the same effect, is essential to a bond, and an instrument to which there is no scrawl or seal is not a bond, although in the body thereof it is recited that the obligors or parties thereto have set their hands and seals. (p. 739.)
The case of Corbin vs. Laswell, Adm., 48 Missouri Appealreports 626 (year 1892) was concerned with a bond for an appeal from a probate court. It was held a document not under seal is not a bond, and will not satisfy a statute which requires the giving of a bond for the purpose of an appeal, as the giving of a bond pursuant to statute is a prerequisite to the validity of an appeal. The Court further held that the defective bond cannot be cured by the giving of a new bond in the lower Court, but the appeal must be dismissed.
In the case in hand, a question to be determined is whether or not under the statute a recognizance is a prerequisite to the issuance of the writ.
The early decisions throughout all jurisdictions wherein the Court decisions have been made available through printed reports hold primarily that a bond must be a written instrument signed and sealed, and such is the law of today. The matter of a bond, and the law pertaining thereto, may offhand seem to be inapplicable to the present problem which is concerned with a recognizance. The two, however, are closely related.
One will find interesting the case of Treasurer of Vermontvs. Jacob Rolfe,
In Simpson vs. The Commonwealth, 1 Dana 523, (CourtAppeals of Kentucky, year 1833) it was held a demurrer to the scire facias should have been sustained as the scire facias did not show that the recognizance had been returned to the Court as required by law, and also because the criminal charge as alleged, did not appear in the recognizance.
In the case of Hall et al vs. the State,
In the case of Grigsby vs. State, 14 Tennessee Reports 355,Cooper's Edition, 6 Yeager 355, (year of 1834) it does not appear that a recognizance was the same as a bond, for the record states that the sureties "came into Court and acknowledged themselves severally", etc. It seems that the sureties must have entered into an oral recognizance. (See pages 354 and 356-8.)
In 1830, in People vs. Van Eps, 4 Wendell's Reports 387,(Supreme Court of New York) it was held an action may be sustained in the Supreme Court upon a criminal recognizance taken in the Court of oyer and terminer and that the manner of collecting recognizances was left to the discretion of the district attorneys. That a recognizance must be filed, or made a record of a Court to sustain a suit and must be so averred *439 in the declaration, and also the default. In this case it is stated "the defendant came before" a Judge "and entered into a recognizance in the usual form" (p. 387) and the defendant "acknowledged himself to be indebted to the people", etc.
The case of Longley vs. Vose,
One reason why there has been so much seeming conflict and confusion in other jurisdictions as to the law pertaining to recognizances is due, to a degree, because the words bail, bond and recognizance have been used without distinction as to their use and meaning; and because the law pertaining to a recognizance taken ministerially has been applied to one of record, and vice versa.
In 1874, a provision of a statute regarding bonds to be given on the issuing of writs of error was as follows:
"and the authority signing such writ shall take good and sufficient bond, with surety, that the plaintiff in error shall prosecute his suit to effect and answer all damages if he fail to make his plea good".
In Ripley vs. The Merchant's National Bank,
"If the record had been simply `bonds for prosecution given', and no more, it would have been inferred that full and legal bond was given, and it would have been a sufficient memorandum of this, provided bond with surety had in fact been given. The question of fact is of course open".
The Court also said, "If some other person", other than the plaintiff, "had given bond it might perhaps have been enough". The Court stated there was a practice which would go to sustain the sufficiency of a bond so given but the Court did not decide the point.
The case of Ripley vs. The Merchant's National Bank,
The Court mentions the early case of Hurd vs. Hull, 1Root 505, decided in 1793; also Dee vs. Ely, 2 Root 11; Enovs. Frisbie, 5 Day 122. These cases had to do with a writ issued without the duty being paid and was therefore "void". The early Court said "the Statute is express and positive that no writ shall be valid unless the duty is paid and certified . . . ." The Court then states "the statute requiring duty to be paid was no more peremptory than is the one under consideration", referring to the non-resident plaintiff problem. In this case, (Morse vs. Rankin), the Court held that if the bond for prosecution was not given, the writ was of no validity, and that the defect could not be cured or made good by bond afterwards given in Court. The Court said,
The case of Gregory vs. Sherman,
Again in the case of Bradley vs. Vail,
"Bonds of recognizance of this description are seldom, if ever, drawn up in form at the time they are taken".
The Court then proceeds to consider "brief notes or memoranda upon the docket", which is often times referred to in early times as "the minutes", or upon the files in which they are taken, and to draw them up in form at any times afterward when they are wanted for use as evidence. This is true in previous cases passed upon in other jurisdictions. But *443
in this case the recognizance was actually taken by the Clerk of the Superior Court, and thus in due time became a record of that Court. It was not merely the certificate of an officer acting in a ministerial capacity, as was in the case of Gregoryvs. Sherman,
The case of Lovejoy vs. Isbell,
The case of Miller vs. Cross,
The Court said a recognizance of this kind is an obligation of record, acknowledged before some Court or person duly authorized to take such acknowledgment, conditioned to do some particular act, and such a recognizance is a bond. The Court refers to the fact that when a bond of prosecution is taken, that fact may be "noted" in the writ in a prescribed but simple form of words, or in any form of words of like import. The Court held the memorandum as noted in the writ to be sufficient. "It thus appears, prima facie at least, from the writ itself, that a proper bond of prosecution was taken before the writ was issued", etc. It clearly appears from the decision as a whole that the Court was of the opinion a recognizance must be actually entered into prior to the issuance of the writ and that such a fact could be noted in the writ in a simple form. It is equally made clear in the case of Vincent vs. The Mutual Reserve Fund Life Assoc.,
From a study of many cases of all jurisdictions it seems clear that a recognizance should be considered in a large measure by the same circumspection and test which is applied to a bond. Further a notation in the writ in words similar to "E. G. of . . . . is recognized in $ . . . . to prosecute", etc. is prima facie indication a proper recognizance was taken before the writ was issued; in other words such is only a notation of the fact; that a recognizance must actually be entered into prior to the issuance of the writ although it may be noted in the writ in a simple form. Such a recognizance should not exist merely in the recollection of the principal, surety or the subscribing authority; any one of the three might not be alive when redress was sought. It should be in writing, signed and sealed, — and furthermore acknowledged for the sake of safety.
The Plea in Abatement is sustained.
Judgment for the defendant to recover costs.