
    *Caldwell v. The Commonwealth.
    July Term, 1858,
    Lewisburg.
    1. Recognizance — Several Cognizors — One Scire Fa-cias. — One scire facias may issue against several cognizors in one recognizance: But it must treat the recognizance as several, and the judgment must be several.
    a. Same — Performance Rendered Impossible by Act of Law — Case at Bar. — The recognizance is that the principal shall appear before the Circuit court at a certain time to answer a charge of felony. At the time he was required to appear he was in the penitentiary, haying; been tried, convicted and sentenced for another felony. Afterwards, and before a judgment on the scire facias against his bail, his time under his sentence expires, and he is sent back to the ;j ail of the county in which he was to appear for trial before the Circuit court; and he is tried and accruitted. — The prisoner's confinement in the penitentiary haying rendered it impossible for him to appear at the court at the time prescribed by the recognizance, it constitutes a good defence for the bail to the scire facias.
    
    3. Same — Same—How Socii Defence May Be Made. — In such case the defence may be made by plea; but it may also be made by petition or motion; and the facts being agreed by counsel for the bail and the attorney for the commonwealth, the question of law may be decided by the court.
    At an examining’ court held for Ohio county on the 8th day of February 18S3, Robert J. Drew, charged with felony, and Alfred Caldwell his security, entered into a recognizance in the usual form, in the sum of five hundred dollars each, conditioned that the said Drew would appear at the Circuit court of said county on the first day of the next term thereof, then and there to stand his trial for the said felony, and not depart thence without leave of the said court.
    On the first day of the next term of said court, to wit, the 14th day of May 18S3, the said Drew having been called and not appearing, his default was recorded, and a scire facias was ordered to be issued *against him and his said surety, on the said recognizance.
    A scire facias was accordingly issued, which was returned executed upon said Caldwell, but “no inhabitant,” as to said Drew.
    On the 23d day of June 18S4 the defendant Caldwell demurred to the scire facias, and the attorney for the commonwealth joined in the demurrer.
    On the next day, to wit, the 24th day of June 18S4, Caldwell filed a petition, representing to the court that upon the day of the forfeiture of said recognizance the said Drew was imprisoned as a convict in the penitentiary of Virginia, for an offence committed by him, between 1he day of the execution of said recognizance and its forfeiture. But that the said Drew having within the last two months been discharg-ed from said penitentiary, was then in the jail of Ohio county, there confined to await and abide his trial for the offence mentioned in the recognizance. And praying that, for as much as no end of justice would be defeated thereby, the court would remit the penalty of the said recognizance, or so 1 much thereof as might seem under the circumstances reasonable and just.
    Annexed to the petition was a memorandum, signed by the attorney for the commonwealth, containing an admission of facts, corresponding, substantially, with those stated in the petition.
    The court ordered the petition to be filed, and the matter thereof continued until the said Drew (who had been indicted for the offence mentioned in the recognizance, and against whom the prosecution had been hitherto continued) should have had his trial on the said indictment.
    About a year thereafter, to wit, on the 19th day of June 185S, Drew was tried on the said indictment, and acquitted.
    ^Afterwards, during the same term, to wit, on the 23d day of June 1855, the matters of law arising on the demurrer to the scire facias, were argued and decided against the defendant; and judgment was thereupon rendered against him for five hundred dollars, with interest and costs. Before the judgment was rendered, it appears Caldwell insisted that the court ought to discharge or exonerate him from the penalty of the said recognizance. But the court refused to allow such exoneration and discharge, either in whole or in part, and entered judgment against him for the full penalty of said recognizance. To which refusal and judgment Caldwell excepted.
    At the same term, to wit, on the 5th day of July 1855, Caldwell moved the court to set aside the judgment, and grant him a rule against the commonwealth, returnable on the first day of the next term, to show cause why he should not be exonerated and discharged from the penalty of said recognizance, by reason of the matters and things set forth in the petition aforesaid, and the admission of the attorney for the commonwealth thereto annexed, and an addition then made to the petition, stating that said Drew' had been tried on the indictment, found not guilty and discharged. On the next day the court overruled the said motion; “for these among other reasons: That the motion is addressed to the discretion of the court, an the court can dispose of the application without the formal presence of the commonwealth; because the court had at a former day of the term disposed of the matter by giving judgment on the scire facias in the name of the commonwealth against the defendant Caldwell; because the court, of its knowledge of the facts attending the trial of the cause, is satisfied that if the said Drew had not forfeited his recognizance, but had appeared and had his trial, at the time to which he was recognized by the recognizance referred to, *the said Dreiv would have been convicted. The term of the court to which said Drew was recognized w'as the trial term of his co-indictees, James Morgan, William Parker and John S. Smith, and who were severally tried and convicted. On the trial of said Drew one of the witnesses who testified at that term, from misrecolleotion, as the court believes', stated a fact important to the issue in the trial of Drew, differently from what he stated it on the former trial; and the court being satisfied of the want of reasonable conditions for remitting the said recognizance, or any part thereof.”
    The said Caldwell applied to this court for a supersedeas; which was awarded.
    Fry and H. M. Matthews, for the appellant.
    The Attorney General, for the commonwealth.
    
      
      Recognizance — Several Cognizors — One Scire Facias. —See foot-note to Gedney v. Com., 14 Gratt. 318.
    
    
      
      Same — Performance Rendered Impossible by Act of Law — Effect.—In United States v. Van Possen, 28 Fed. Cas. 358, the principal cáse is cited as approving the proposition that where the performance of the condition of a recognizance becomes impossible by the act of God, or of the law, or of the obligee, the tie fault is excused.
      In that case, the principal was prevented from appearing before the United States district court because, at the time appointed for appearance, he was in actual confinement in the penitentiary of Missouri. But the court held that this was no defence co the sureties on the recognizance given to the United States. The court (citing among others the principal case) said, that if it had been shown, that the United States had. by a subsequent arrest and conviction in another district, for another defence against it, prevented the performance of the condition, the question would have been more complicated and difficult of solution; and one respecting which the cases ill the state courts seem to differ.
      The court then continues by saying: “The United States and the state of Missouri are wholly distinct parties, and the action of the state authorities cannot be imputed to the government of the United States as an obstruction or interruption by it to the performance of the condition of the recognizance. It is therefore plain that there is no act of the obligee which excuses the default of the principal obligor. Hence, the defence pleaded must rest upon the proposition that the performance was excused by the act of the law. This makes it necessary to consider what is an act of the law, in the sense of the rule.”
      As shown above, the court, in this case, did not consider the existing facts to constitute such an act of law as would relieve the sureties from their liability on the recognizance.
    
   MONCURE, J.

The Circuit court did not err in overruling the demurrer .to the scire facias. It was decided by this court in Gedney v. The Commonwealth, ante, p. 318, that one scire facias may be issued against several cognizors in one recognizance; and that case governs this. Of course the scire facias must treat the recognizance as several, and not joint; and the judgment must be several. That is the case here. The scire facias correctly recites the recognizance; and though it calls on the cognizors to show why the commonwealth should not have execution against them, “of the said five hundred dollars,” 3Tet the words, “according to the force, form and effect of the recognizance aforesaid,” immediately follow, and plainly show that the scire facias was intended to be, and actually is, in strict conformity with the recognizance.

The second assignment of error, that ‘ ‘the court should have awarded a writ of enquiry,11 was not relied *on by the counsel for the plaintiff in error, in their argument before this court, and is clearly without any just foundation.

The remaining assignments of error are, I think, well founded. The plaintiff in error had a good defence to the scire facias. The performance of the condition of the recognizance was legally impossible. On the day on which the principal cognizor was to make his personal appearance before the Circuit court of Ohio county, according to the terms of the said condition, he was imprisoned as a convict in the penitentiary of the state, as he had been for some time before, and continued to be for some time thereafter. There were no means whereby the surety could withdraw the principal from the penitentiary, and bring him, or have him brought to the Circuit court of Ohio, to be surrendered in discharge of the recognizance. The principal is considered to be in the custody of the bail; and the laiv undoubtedly gives to the bail great power in arresting the principal and surrendering him in discharge of the recognizance. But that power is not invincible. It may be overcome by the act of God, as for instance the death of the principal; or by the act of the law, as in this case. And when so overcome, the law excuses the non-performance of the condition, because it compels no man to do impossibilities. So also such non-performance may be excused by the act of the cognizee.

That it may be excused by the act of God, is well settled by authority. In Coke Bit. 206, a, it is said, ‘ ‘If a man be bound by recognizance or bond, with a condition that he shall appear the next term in such a court; and before the daj' the cognizor or obligor dieth, the recognizance or obligation is saved. ” In The People v. Manning, 8 Cow. R. 297, the principal cog'nizor was so sick on the day for his appearance that he could not be removed, and continued sick until *he died on a subsequent day. This was held to be a good de-fence to an action of debt on the recognizance. The court, by Savage, Ch. J., said, “In all cases where the condition of a bond or recognizance is possible at the time of making the condition, and before the same can be performed it becomes impossible by the act of God, or of the law, or of the ob-ligee, there the obligation is saved.

That such non-performance may be excused by the act of the law, is also well settled. In The People v. Bartlett, 3 Hill’s N. Y. R. 570, which was an action of debt on a recognizance, conditioned that R. should personally appear at the next Court of general sessions of the county of B, to answer to an indictment; it was held to be a good defence to the action, that between the date of the recognizance and the term of the court therein mentioned, R was arrested and committed to jail in another county, where he was kept in confinement till after the day of appearance. The court, by Nelson, Ch. J., lays down the same general principle before stated, “that where the performance of a condition of a bond or recognizance has been rendered impossible by the act of God, or of the law, or of the obligee, the default is excused:” and several authorities are cited to sustain the principle. In that case the party was confined in jail before conviction. In this case’he had been convicted and was confined in the penitentiary. So that this case, if possible, is stronger than that, in favor of the defence.

Even in civil cases, in which the undertaking of the bail is different from what it is in criminal, and is to some extent a se-curiiy for the debt, he may be discharged by the act of God. or of the law. Petersd. on Bail 389, 390, 10 Law Libr. In Wood v. Mitchell, 6 T. R. 247, it was held that after a defendant had been convicted of felony and sentenced to transportation, the bail were entitled to their discharge.

*The bail in this case then had a good legal defence to the scire facias ; and if he had availed himself of it regularly, by plea, he would have been discharged by verdict and judgment. He did not so avail himself of it. But he brought the fact on which it was founded fully to the notice of the court by petition, on the day after he demurred to the scire facias, and a year before the demurrer was overruled and judgment rendered against him. The petition was sworn to in open court, and the facts therein stated were admitted in writing to be true by the attorney for the commonwealth. It was, in effect, a case agreed between the plain tiff in error and the commonwealth. The facts being admitted, there was no issue to be tried and no necessity for a jury. Nothing remained to be done but for the court to pronounce the law upon the facts; as upon a special verdict or a case agreed. No objection was made by the court or the attorney for the commonwealth to the form in which the defence was made: It would have been made by plea, if either had so required. The petition did not formally pray for a discharge from the recognizance, but in effect it did so. The petitioner wanted all the relief to which the facts entitled him. The court might, and ought to have entered a judgment for an exoneretur, and discharged the petitioner from his recognizance. In the People v. Manning, cited supra, it was contended that relief in such cases should be obtained by motion, and not by plea. The court said, “Perhaps it might be obtained in that way; but this is no reason against pleading the defence, if it be a bar to the action.’’ In the case of Wood v. Mitchell, cited supra, the proper course for obtaining relief was held to be, 1 Ho move for permission to enter an exoneretur on the bail piece. ’ ’

Ins tead of discharging the petitioner from the recognizance on the facts agreed, the court directed the petition to be filed, and the matter thereof continued *until the prisoner Drew should have had his trial on the indictment against him. The trial -was accordingly had about a year thereafter, and the prisoner was acquitted. Instead of then discharging the petitioner from his recognizance, as he insisted, the court a few days thereafter overruled his demurrer to the scire facias, and rendered judgment against him for the penalty, with interest and costs. And when, during the same term, the petitioner moved the court to set aside the judgment, and grant him a rule against the commonwealth to show cause why he should not be exonerated and discharged from the penalty of said recognizance, by reason of the matters and things set forth in the petition, and in an | I ' i I ¡addendum thereto, stating that the prisoner I had been tried and acquitted, the court j overruled the motion, and refused to allow such exoneration and discharge, either in whole or in part, assigning reasons for such refusal, which, in my opinion, are wholly inadequate. If the only ground for the motion had been the facts stated in the addendum to the petition, that the prisoner had been tried on the indictment and acquitted, it would strongly have addressed itself to the discretion of the court, and would have justified the exercise of that discretion in favor of the petitioner. “The object of a recognizance (said Ch. J. Marshall in The United States v. Feely, 1 Brock. R. 255) is not to enrich the treasury, but to combine the administration of criminal justice with the convenience of a person accused, but not found to be guilty. If the accused has, under circumstances which show that there was no design to evade the justice of his country, forfeited his recognizance, but repairs the default as much as is in his power by appearing at the succeeding term and submitting himself to the law, the real intention and object of the recognizance 'xare effected, and no injury is done.” In that case, a motion was made to stay proceedings on a scire facias which had been sued out by the United States against Eeely and his security, on a recognizance conditioned for the appearance of Eeely on the first day of the preceding term, to answer an indictment against him. Eeely did not appear, and his default was recorded. He after-wards appeared, and was in custody when the motion aforesaid was made. The report does not show whether he offered any, and if any, what excuse for his non-appearance according to his recognizance. It was contended on the .part of the United States, that the court possessed no power over the recognizance: that being forfeited, it had become a debt due to the United States, which was no more subject to the control of the court than a debt upon contract. It was admitted that in England the Court of exchequer exercises this power; but it was contended that the statutes of the 33 Hen. 8, ch. 39, and of 1 Geo. 2, expressly delegated it, and that from these statutes alone the authority of the Court of exchequer is derived. The chief justice reviewed the authorities, and came to the conclusion, that entirely independent of the statute, the courts of England exercised the power which the court in that case was required to exercise. And accordingly, all proceedings on the recognizance were ordered to be stayed until it should appear whether the accused should continue to submit himself to the law, or should attempt to evade the justice of the nation.

In the Commonwealth v. Craig, &c., 6 Rand. 731, there was a recognizance to appear and answer an indictment for felony. The accused failed to appear, and his default was recorded. A rule was then entered against him and his sureties, to show cause I why a scire facias should not be awarded against them. At *the following term the accused appeared, and was taken into custody. The sureties offered to prove that by reason of wounds received in a rencontre the accused had been rendered unable to attend according to his recognizance. The court adjourned to the General court, among others, the question, whether, if the above mentioned fact were proved, the sureties ought to ■ be discharged from their recognizance? Brock-enbrough, J., delivering the opinion of the court said, ‘ ‘It appears clear that the courts of oyer and terminer have the right, at any time before a recognizance is estreated, either to estreat or spare it. This is a discretion vested in them for the obvious purpose of remitting the obligation in a hard case. Estreats are, strictly speaking, not known in this state, but by analogy to the practice in England, the courts here have certainly the power to spare the recognizance, at least, at any time before the scire facias awarded. If the court of Montgomery (from which the question was adjourned) was satisfied, by competent evidence, that the recognizor was disabled by his wounds from attending the court, it is reasonable and just that his misfortune should not be visited upon him and his sureties; particularly as, by his appearance afterwards, the ends of public justice will be answered: and in such case, the court ought not to award any sci. fa. against them.”

These cases show that our courts, at common law, possessed and exercised a power of discharging recognizance before the same were adjudged to be forfeited. The statute has extended this power, and provided that “when, in an action of scire facias on a recognizance, the penalty is adjudged to be forfeited, the court may, on application of a defendant, and in a county or corporation court, with the consent of the attorney prosecuting, remit the penalty, or any part *of it, and render judgment, on such terms and conditions as it deems reasonable.” Code, ch. 211, § 10, p. 785.

The motion of the plaintiff in error in this case, considering it as a mere application addressed to the discretion of the court, in the exercise of its common law or statutory power over the subject of recognizances, was entitled to much more favor than the application in either of the cases before cited from 1 Brockenbrough and 6 Randolph. Eor besides being sustained by all the grounds for relief which existed in those cases, it is sustained by this further and additional ground, that the plaintiff in error had a good legal defence to the scire facias, which he brought forward in due time, and would have made by plea if he had been required to do so, and had not been induced, by the course pursued by the court, to believe that the benefit of the defence would be secured to him, at least in the event that the accused 'should stand his1 trial upon the indictment. I

But it is unnecessary in this case to de- j cide, and I therefore express no opinion upon the question, which was much discussed in the argument, whether an appellate court may review a judgment of a court of original jurisdiction, given in the exercise of its discretionarj' power (whether of common law or under the statute) over the subject of recognizances. The plaintiff in error had a good legal defence, to the benefit of which he was entitled in some form or other. He might have made it by plea. But the facts on which it rested being admitted, there was no necessity for a plea, and he might and ought to have been discharged on petition or motion, as matter of right and not of mere discretion. The Circuit court having refused so to discharge him, and rendered judgment against him upon his recognizance, I am of opinion *that the judgment is erroneous and ought to be reversed, and a judgment rendered exonerating and discharging him from his recognizance, and dismissing the scire facias.

The other judges concurred in the opinion of Moncure, J.

Judgment reversed.  