People v. Lott

21 Barb. 130 | N.Y. Sup. Ct. | 1855

By the Court, Mitchell, P. J.

The complaint describes the judgment as recovered in the court of common pleas. If that were a variance it is one that could not mislead, and should be disregarded. It is not a variance. There are two distinct things which are known as recognizances; one, the written acknowledgment of liability signed by the party, or contained in the minutes of the court, as entered by the clerk; the other, the formal record of this acknowledgment duly filed in court, and made up by an officer of the court from the acknowledgment. The last is the record, which imports absolute verity. There is no principle of law which makes it essential that the record should be made up in the same court in which or for which the acknowledgment was taken; although it would be most congruous to make it up in that court if that court had jurisdiction of actions on such acknowledgments. Bail for the appearance of a defendant, even in a civil action, might be taken in one court and the legislature might direct the record against the obligors, founded on the bail piece alone, to be entered in some other court. The judgment would then be the judgment of such other court, although founded on a proceeding commenced in the first court.

Courts of sessions have never had jurisdiction to entertain actions to collect money due on forfeited recognizances ; and it is not to be inferred that such jurisdiction is intended to be given to them, unless there be a clear expression of legislative intent to that effect.

Under the laws of 1813, forfeitures, whether on recognizances or otherwise, were collected by the court of exchequer, presided over by one of the puisne judges of the supreme court. (1 R. L. of 1813, p. 400.) The clerks of the various courts of record delivered to that court, on the 1st day of October term in each year, an account and estreat of all recognizances forfeited prior to the month of September of that year, (Id. 402, § 6,)' and the court of exchequer issued execution, founded on the return, against the body, lands and goods of the defendant, to be levied by any sheriff, “ of the lands and tenements in his county whereof such defendant was seised on the day such sum of money became due, specifying the same in such execution, or at any time afterwards, in whose hands soever the same may be.” Thus the recognizance, when the mere account of it was delivered to the court of exchequer, became the judgment of that court, (unless for some reason it saw fit to remit the fine,) and execution issued on it, which bound the lands of the defendant from the time the recognizance became due, although they might have passed into the hands of purchasers, and in whatever county they were situated. The acknowledgment of the recognizance was taken in a court of sessions or of oyer and terminer, or a fine was imposed by those courts or other courts of record, but the collection of the fine was not effected by any of those courts, but only by the court of exchequer.

In 1830 the revised statutes altered the law, and declared that a recognizance should not bind any lands, but should be only evidence of a debt, (2 R. S. 362, §§ 23, 21,) and in pursuance of the same policy directed that whenever a recognizance to the people should become forfeited, it should be prosecuted by the district attorney, in an action of debt, for the penalty, and that on the breach of the condition being proved or confessed, or found by default, judgment should be absolute for the penalty, and execution should be awarded and executed in the same manner as upon judgments in personal actions, and with the like effect in all respects ; and that when any recognizance was to be estreated, the estreat should be made by the entry of an order directing it to be prosecuted. (Id. 485, §§ 29, 30, 31.) Power was also given to the court of common pleas of the county in which the court sat when the recognizance was taken, to remit the forfeiture or discharge it upon such terms as might be just and equitable, with restrictions on this power, in certain cases. (Id. 486, §§ 37, 38.)

The actions thus required to be brought on recognizances were not brought in the court where the recognizance was taken, but in courts having civil jurisdiction. Thus stood the law, until 1844, when it was found necessary to establish a new police system for this city, and to save the city from the large amount of costs to which it was subjected by the prosecutions of recognizances, when nothing was collected from the defendants. The old and summary proceeding was accordingly restored, so far as regarded recognizances in criminal cases in this city; and it was declared that all recognizances given to answer to a charge preferred before courts of criminal jurisdiction, on being forfeited, should be filed by the district attorney, with a certified copy of the order of the court, forfeiting the same, in the office of the clerk of the city and county of New York, and thereupon the clerk should docket the same in the book kept by him for docketing judgments, (transcripts whereof are filed with him as such clerk,) as if the same was the transcript of a judgment record for the amount of the penalty; “and that the recognizance and the certified copy of the order forfeiting the recognizance shall be the judgment record,” and that such judgment should be a lien on the real estate of the persons entering into the recognizance, from the time of filing the recognizance and a copy of the order and docketing the same: and that an execution might be issued to collect the amount of the recognizance, in the same form as upon & judgment recovered in the court of common pleas of said city and county, in an action of debt in favor of the people, against the persons entering into such recognizance. The fees of the clerk were to be the usual fees for filing papers and entering rules; and the district attorney was to receive no compensation for his services in the matter, “ his salary being deemed compensation for all such services.” (Laws of 1844, ch. 315, p. 475, 6.)

Afterwards, in 1845, (Laws of 1845, p. 250,) it was declared that these judgments should be subject to the jurisdiction and control of the court of common pleas for the city and county of New York, in the same manner as if such judgments had been docketed in that court.

Some of these provisions were quite unnecessary, if the person drafting these two laws had concluded that the judgments were in fact the judgments of the common pleas, and that this would appear to others clearly to be so. They may have been added to prevent any doubt as to the powers expressly conferred by them. By the express words of the law “the recognizance and the certified copy of the order forfeiting the recognizance shall be the judgment record, and such judgment is to be a lien on real estate from the time of filing the recognizance and copy order and docketing the same,” and execution is to issue in the same form as on a judgment recovered in the court of common pleas in an action of debt. It is not the recognisance and the original order which constitute the judgment record; but the recognizance and the copy order. So it is not a judgment of the sessions, but it becomes a judgment when the two papers are filed with the clerk of the county; who then was clerk of the common pleas and of no other court. It could not be the judgment of the sessions, as that court had no jurisdiction, at any time, to entertain such actions. If not of the sessions it must be of the common pleas; for to that court alone was any control over the judgihent given.

There was a reason for some of the expressions used in the act, perfectly consistent with the idea of the judgment being the judgment of the common pleas. No action was commenced in that court, as the foundation of the judgment, and no judgment was recovered in that court in an action; but the defendant came into the criminal court and there made the acknowledgment of record, which, on his default in that court, made him liable to an action or to an immediate judgment in any court, as the legislature should direct. For this reason the expression is used as upon a judgment recovered in the court of common pleas in an action of debt.” Is it not a necessary conclusion that when certain papers are directed to be filed with an officer who is the clerk of a court and declared then to be a judgment, and that court has jurisdiction of such actions and the court from which they come has not, and that court has the jurisdiction and control over such judgment in the same manner as if such judgment .had been docketed in it, and no other court has that jurisdiction or control over the judgment; and execution is to issue to collect the amount of such judgment, in the same manner as upon a judgment recovered in that court in an action of debt, that the law has in effect declared the judgment to be the judgment of that court? Are not all the attributes of a judgment of that court given to it; and if so, can it be less than a judgment of such court?

But if this were not strictly a judgment of that court, it would not avail the defendant. By the act of 1840, (Laws of 1840, p. 334, 5,) the judgment of any court of common pleas might be docketed (in the same manner as a judgment of the supreme court) in any other county than that in which the judgment was rendered, with the like effect as judgments in the supreme court, and execution could be issued to the sheriff of any county where the judgment was docketed, with like effect as if issued to the sheriff of the county where the court was held. The docket of the judgment thus was made to affect lands in any county where the docket was entered, and the execution to such county required the sheriff to sell the title of the judgment debtor in any lands, from the time of such docket. The law in question directs the execution on the judgment entered upon the recognizance to be issued “in the same form as upon a judgment recovered in the court of common pleas.” If the execution, as required, adopts the form of an execution on a judgment in the common pleas, it must direct the sheriff to sell the title of the defendant to any lands held by him when the judgment was docketed in-his county. This the sheriff has failed to do, and is therefore liable for his default.

The law of 1844 was not intended in any way to curtail the force or effect of a judgment obtained in the short way prescribed by it, but to save expense, and obtain the same objects as before, in a summary method. A judgment on recognizance, in the old method, could issue to any county, (after the act of 1840,) and be a lien on the lands of the defendant; one under the act of 1844 must be allowed to have the same effect, to carry out the intention of the law.

[New York General Term, November 5, 1855.

The rulé of damages was that prescribed in Ledyard v. Jones, (3 Seld. 550,) and was correct.

The judgment must be affirmed, with costs.

Mitchell, Clerke, Roosevelt and Cowles, Justices.]