People v. Shaver

| N.Y. Sup. Ct. | May 15, 1858

By the Court, Rosekrans, J.

The statute requires that whenever a prisoner shall be let to bail by an officer out of court, the officer shall immediately cause the recognizance taken by him to be filed with the clerk of the county in which the party bailed was imprisoned. (2 B. S., Mh ed., 893, § 34.) The recognizance is to be certified by the magistrate taking the same, to the court at which .the defendant is bound to appear. (lb., § 28.) The court can take no action upon the recognizance until it is filed; and for that reason, power is conferred upon the court to compel the return of the recognizance in case the magistrate who took it omits to certify and file it as the statute requires. And, in an action upon a recognizance, it is necessary that it should appear that the recognizance was filed in or made a record of the court in which it is returnable. (People v. Huggins, 10 Wend., 472, 464; People v. Van Eps, 4 Wend., 393, and cases there cited.) In the case of People v. Huggins, supra, although the declaration did' not positively aver the fact that the recognizance was filed in or made a record of the court, yet, as it referred to the recognizance as a record of the court, it was held, upon general demurrer, that the pleading was good. In this case the complaint does not contain any averment of or allusion to the fact, that the recognizance upon which the action is founded, was ever filed or made a record of the court, and, within the authorities, the nonsuit was proper upon that ground. The complaint did not state facts sufficient to constitute a cause of action. Without the filing of the recognizance, the order that it be forfeited and prosecuted was a nullity. The court had no power to make such order. Had the plaintiff furnished proof, upon the trial, of the filing of the recognizance, the complaint might have been amended; but no such proof was offered.

The recognizance, too, appeared to have been taken under illegal duress of the prisoner, for whom the defendant became bail. The complaint averred, and the proof showed, that upon an unindorsed warrant issued by a justice of the peace of Fulton county, a constable of Montgomery county arrested the defendant named in the warrant, in the latter county, and took him before the justice who issued the warrant in Fulton county. While under this arrest, the recognizance was entered into. Assuming that the warrant was legally issued, it could only have been directed to an officer of the county in which the justice of the peace who issued it was a magistrate, and such officer could only have executed the warrant in that county, unless the defendant had escaped to or was in another county, “ out of the jurisdiction of the magistrate who issued the warrant,” and then only upon proof of the handwriting of the magistrate who issued it being furnished to an officer in the latter county, and obtaining his indorsement of the warrant; and such indorsement would authorize the officer bringing the warrant, or any other officer to whom it may have been directed, to execute the warrant in the county where it was indorsed. (2 R. S., Mi ed., 890, § 3, 45.) Such indorsement would extend the jurisdiction of the officers of the county in which the magistrate who issued the warrant resided, to the county in which the warrant was indorsed, but it would not confer any power upon an officer of the latter county to arrest the defendant any where, not even in his own county, nor to take the defendant out of his county before any magistrate in the county in which the warrant was issued. _ The privilege of avoiding a contract on the ground of duress, is generally per-' sonal to the party under duress, and the general rule is, that no other person can take advantage of it. An exception, however, is made in favor of a surety. (Fisher v. Shattuck, 17 Pick. R., 152.) In Theobald on Principal and Surety (1 Law Lib., 2), it is said that “the obligation of the surety being accessory to that of the principal, it is of its essence that there should be a valid obligation of a principal debtor. The nullity of the principal obligation necessarily induces the nullity of the accessory. Without a principal there “ cannot be an accessory.” And at page 207 (Marg.), it is said, “ the office of bail, it is evident, is founded on the privilege given by the law to the plaintiff, of arresting and imprisoning, and keeping in prison the defendant; and, therefore, if the plaintiff in any case, either had not the right to arrest, or by his own act or the act of the law, has lost the right to keep the defendant, the derivative right of the bail ceases; and their right of keeping the defendant being gone, they are discharged from the obligation of keeping him. In McClintock v. Cummins (3 McLean R., 158), it was held that a father and son may each avoid his obligation by duress of the other, and also a husband by duress of his wife.

Besides, the recognizance was void, under the circumstances, as to both principal and surety, on the ground that it was taken before a magistrate of the county of Fulton, by whom the warrant of arrest was issued for the appearance of the principal at the Court of Sessions in the county of Montgomery. The justice of the peace derived all his authority to take the recognizance, from the statute; and unless the provisions of the statute are complied with, the recognizance is a nullity. A party may be indicted for a second, third or other marriage, prohibited by statute, in the county in which he may be apprehended, and the same proceedings had upon such indictment as if the offence had been committed there. (2 R. /S'., 4th ed., 870, § 10.) But this provision refers to a lawful arrest. Conceding that the arrest in Fulton county was legal, the recognizance should have been made returnable at the next criminal court in that county having cognizance of the offence. (2 R. K, 892, §21.) The statute makes no provision for the taking of a recognizance by a magistrate upon a warrant issued before indictment for the appearance of a party at a court in any other county than that in which the magistrate taking it is an officer, except where a warrant has been issued for an offence not punishable with death or imprisonment in a state prison, committed in the county of the magistrate who issued the warrant, and the defendant has escaped to, or is arrested in, another county, and is brought before a magistrate of the latter county, upon a warrant indorsed by a magistrate of such latter county. In such case, the magistrate before whom the defendant is brought, may take a recognizance for the appearance of the defendant at a court to be held in the county of the magistrate who issued the warrant. (2 R. /S'., 890, §§8,9,10,11.)

If the warrant under which the recognizance in this case was taken, had been properly issued by a justice of the peace in Fulton county, and had been indorsed by a justice of the peace in Montgomery county, and the defendant arrested in Montgomery county by a constable of the county of Fulton, the offence charged in the warrant being punishable with imprisonment in a state prison, the defendant must necessarily have been taken to Fulton county before some magistrate of that county. The arrest of the defendant in Montgomery county, under the Fulton county process, by a Fulton county officer, would be deemed in law an arrest in Fulton county for all the purposes of examination of the defendant, the taking of bail, and trial for the offence charged. The justice in Fulton county could not, however, take a recognizance under that proceeding for the appearance of the defendant in a court in any other county than Fulton. The statute relating to indictments for bigamy in the county where the defendant may be apprehended, was not intended to authorize the taking of such a recognizance as that counted upon in this case.

The nonsuit was rightly ordered, and the judgment entered upon it should be affirmed.