People v. Hickey, 5 Daly 365

People v. Hickey

5 Daly 365 | New York Court of Common Pleas | 1874

Robinson, J.

These are appeals from orders denying motions to vacate judgments entered upon forfeited recognizances in criminal cases, in pursuance of the provisions of L. 1844, c. 315, § 8, such judgments being made by L. 1845, c. 229, the subjects of the jurisdiction and control of this court, in the same manner as if actually docketed therein. This complete supervision of such judgments has been affirmed by the Supreme *375Court, when an appellate court, in The People v. Gildersleeve (10 Barb. 44), and since in The People v. Lott (21 Barb. 130), and has since been constantly exercised.

Such a recognizance is an instrument peculiar to the common law, and is given as security for the appearance of persons charged with crimes. It consists of an acknowledgment of debt to the people in a sum fixed for bail, and is intended to be made a matter of record, whereon, when duly filed and enrolled, judgment and execution may be had (People v. Kane, 4 Den. 535, and cases cited; The People v. Gildersleeve, and Same v. Lott, supra).

Although of such high character, it partook of the nature of a bond and warrant of attorney in civil cases, and being the act of the party executing it, giving authority for such entry of final judgment thereon, it constituted due process of law, and infringed upon no right of trial by jury, which (as might be done in civil cases) was waived (Murray's Lessees v. Hoboken Land and Imp. Co. 18 How. [U. S.] 272; Const. 1846, art. 1, § 2; Embury v. Connor, 3 N. Y. 511; 2 Abb. Dig. [U. S.] 108, § 29, and cases cited). Previous to 1818, such proceeding was had in a court styled a Court of Exchequer (1 R. L. [1813] 400), whose powers were by act of 1818 (L. 1818, c. 283, § 8) transferred to the Court of Common Pleas of the several counties.

By the Revised Statutes (2 R. S. 362, § 21) such instruments were, as to the other counties, deposed from their high prerogative, as conferred by the common law, and made mere instruments of evidence of debt, to be prosecuted by the district attorney (2 R. S. 480, §§ 1, 29, 31); but this county was excepted from such general legislation, and the proceedings for the collection of fines and recognizances then in force were continued (2 R. S. 487, § 43). This was by sovrefaeias for obtaining execution on the judgment, or an action of debt upon the recognizance.

By the subsequent act of 1839 (L. 1839, c. 343), the proceeding by action in debt, under the provisions of the Revised Statutes, was made applicable to this county, except that the district attorney was only to be entitled to costs when prosecuting by order of the court (L. 1839, c. 343, p. 317). The act of 1844 *376(L. 1844, c. 315, § 8), however, restored the proceedings on forfeited recognizances in this county to their common'law office, with the right of entry of judgment thereon upon filing such recognizance with the clerk of the city and county of New York, with a certified copy of the order for its estreat, and also of execution, without scire facias, against the real and personal property of the persons entering into such cognizance (L. 1844, c. 315, p. 476). No alteration in the mode of giving effect to such instrument is claimed to have occurred until the amendment to section 471 of the Code of Procedure (which previously had wholly excepted proceedings on recognizances from its operation) by chapter 202 of the Laws of 1855 (L. 1855, p. 305), by which it was enacted as follows: “ § 1. All the provisions of the Code of Procedure are hereby applied to all recognizances forfeited in any Court of General Sessions of the Peace of Oyer and Terminer in any of the counties of this State.” By section 2 all laws or parts of laws conflicting with such application of the provisions of the Code of Procedure to such forfeited recognizances were repealed; and by section 3 it was provided that in no ease should any fees or costs upon proceedings upon forfeited recognizances be chargeable upon this city or county by the officer prosecuting the same. A review of these several provisions of law does not relieve from doubt the question, whether the summary mode of enforcing such recognizances by filing the same and a certified copy of the order estreating it, and thereby effecting a judgment with immediate right of execution, which appertained to this county, in addition to the prosecution of the recognizance as a mere evidence of debt, was intended to be abrogated by the act of 1855. The Revised Statutes (2 R. S. 480, §§ 1, 31 had used imperative language that such recognizances forfeited in other counties should be sued, in an ordinary action of debt. The Code of 1849 (§ 471) excepted all former modes of proceeding on such instruments from its operation; the act of 1855 uses no such imperative terms, but may be construed as applicable to all suits brought by original process in any such actions to recover the debt due by the recognizance. Being but a remedial statute, it cannot, upon well recognized rules of construction, be *377held, except by express terms, or by necessary implication from such as are used, as inhibiting or abolishing such other remedies or modes of procedure upon forfeited recognizances as were known to the common law, and it is rather to be held as affording a cumulative remedy. Justice Spencer, in Wheaton v. Hibbard (20 Johns. 293), says: “How, the principle is, that where a party has a remedy at common law for a wrong, and a statute be passed giving a further remedy, without a negative of the common law remedy, express or necessarily implied, he may, notwithstanding the statute, have his action at common law.” To the same effect are Almy v. Harris (5 Johns. 175); Wetmore v. Tracy (14 Wend. 255); Stafford v. Ingersol (3 Hill, 38) ; Turnpike Co. v. The People (9 Barb. 161).

It is a fundamental rule of construction that all acts altering or impairing the common law rights of parties are to be strictly construed, especially such as abridge the rights of the people to any remedy to be afforded them in their own courts. I am therefore of the opinion that a construction of the provisions of the act of 1855 found complete solution or satisfaction in their application to all suits upon forfeited recognizances to be brought, as well on those estreated in this as in the other counties of the State, as a substitute for the common law action of debt; and that while by this enactment such recognizances when sued upon were to be prosecuted in the mode prescribed by the Code, the common law mode of procedure upon forfeited recognizances by direct enrolment and entry of judgment thereon, by virtue of such quality attached to them at common law, was not, as respects this county, abrogated or interfered with. But were this otherwise, the provisions of the subsequent act of 1861 (L. 1861, c. 333), declaring that the before mentioned section 8 of the act of 1844 was still in force and should be applicable to the city and county of Hew York, if necessarily an act of original legislation, and void as one of judicial.legislation, was not obnoxious to any constitutional objection. It is claimed it was in violation of the provisions of article 3, section 16, of the Constitution, declaring that “ no private or local bill shall embrace more than one subject, and that shall be expressed in the title.” The title of this is, “ An act in relation to fines, recognizances *378and forfeitures ; ” and the first section prescribes and limits the mode for the remission or reduction of fines; the second requires the filing of every recognizance, with the complaint in question, the affidavits and other papers upon which it is founded, within ten days after it is taken; and the third section is to the effect above stated.

I am unable to discover in this act of 1861 any evasion of the provisions of the Constitution. The title does not express any local subject, but has reference to the general administration of justice relating to the matter of fines, recognizances and forfeitures, in which all persons are interested, and affecting all coming within the range of the operation of the act. It has general application upon those subjects to the whole State, and the third section, applicable to this county, is but the special expression of the will of the Legislature, within the general subject embraced in the title. The exclusion of one or more counties from the operation of the general act, or the making of particular provisions on a general subject, in reference to one or more counties or localities, is clearly within the legislative powers, and not obnoxious to constitutional objection (Matter of Walker, 1 Edm. 574; Conner v. The Mayor &c. of New York, 5 N. Y. 286; Williams v. The People, 24 lb. 405 5 Matter of Mayor, 50 N. Y. 504).

In this view of the law applicable to the cases under examination, the clause contained in the recognizances in two of them, consenting to the entry of judgment thereon, in the manner provided in the act of 1844, was but an expression as to the legal effect of the instrument, and was mere surplusage. The maxim, “ utile per inutile non vitiaturf applies (People v. Millis, 5 Barb. 511).

In my opinion, the several orders in these cases should be affirmed, with costs.

Larremore and Van Brunt, JJ., concurred.

Orders affirmed.