
    William Sutherland, as Administrator with the Will Annexed of Clara Loraine Richardson, Deceased, Respondent, v. St. Lawrence County, Appellant.
    Sail— money deposited in lieu-thereof—money deposited is regarded as recovered on a recognizance—after forfeiture of the bail the money cannot be recovered although shown to belong to an estate -of which the accused was executor — a magistrate on an adjournment of an examination may admit to bail, although the offense is punishable by imprisonment exceeding five years.
    
    Where, on the adjournment of an examination before a committing magistrate of a person charged with the crime.of arson, the accused, in lieu of the bail fixed by the magistrate, deposits currency with the county treasurer to the credit of the county and is thereupon released from custody, if his bail is subsequently declared forfeited because of his failure to appear oh the adjourned day, the fact that the moneys so deposited by the accused belonged to an 'estate of which the accused was executor, does not entitle an administrator with the will annexed of the estate to recover such moneys from the county, when it does not appear that any of the county officials concerned in the transaction had any knowledge qf the sOurce of the money .deposited.
    
      It seems,: that the moneys having been paid over in due course of business could not be followed and retaken by the owner even if stolen or misappropriated! Moneys deposited in lieu of bail are tq be treated as if they had been recovered , , on a recognizance.
    Under section 192 of the Code of Criminal Procedure, a committing magistrate has power, pending' an examination concerning á bailable crime or on an adjournment of such examination, to admit the accused to bail irresfiective Of . whether por no't the crime is punishable by imprisonment exceeding five years. ' Section 557 of the Code of Criminal Procedure, which prohibits a committing magistrate from admitting to bail where the crime charged is punishable by imprisonment exceeding five years, relates only to the admission to bail of a prisoner after he has been held to answer to the grand, jury.
    Appeal by the defendant, St. Lawrence County, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St, Lawrence on the 13th day of August, 1903, upon the verdict of a jury rendered after a trial at the St. Lawrence Trial Term.
    
      Ledyard P. Hale, for the appellant.
    
      Vasco P. Abbott, for the respondent.
   Houghton, J.:

The action is to recover money deposited by .one Richardson, in lieu of bail, on an adjournment of an examination before a conn mitting magistrate, on- a criminal charge against him of arson in the second dégree. ,.

Richardson had been duly arrested arid arraigned, and on his request.'an adjournment of his examination was had. The magistrate fixed .the amount of his bail pending the adjournment at $1,000, and oti his failure to give it he was committed to the jail of St. Lawrerice county. While thus confined he notified the sheriff that he desired to deposit the money in lieu of bail. This wras done and the county treasurer notified of the fact, and he issued his certificate that such deposit had been made to the. credit of the,county, whereupon the sheriff released the prisoner from'custody¡ Prior to the adjourned day the money was transferred by the county treasurer to another bank and to the county’s special fund account. On the adjourned day Richardson failed to appear and his bail was declared forfeited.

Richardson was a legatee under, and executor of the will of his deceased wife. Because of his absconding his letters testamentary were revoked and the plaintiff was appointed administrator with the will annexed of said estate, and seeks to recover the moneys so deposited on the ground that they were a part of the moneys of the estate collected by Richardson while in jail.

The only question submitted to the jury was whether the money deposited belonged to Richardson, or whether it was a part of the estate, and their verdict was that it was a part of the funds of the estate.

The defendant’s motion for a nonsuit was reserved until the coming in of the verdict, and the learned trial judge seems to have ■denied it particularly upon the ground that the magistrate had no authority, pending an adjournment, to fix the amount of or admit Richardson to bail because the crime with which he was charged was punishable by imprisonment for a longer term than five years.

We do not think the judgment can be sustained on this ground. Section 557 of the Code of Criminal Procedure, which prohibits a magistrate from admitting to bail where the crime charged is punishable by imprisonment exceeding five years, relates to the admission to bail after a prisoner has been held to answer to the grand jury. By that section, if the .crime charged is a misdemeanor, or a felony punishable with imprisonment not exceeding five years, the committing magistrate may admit the prisoner to bail. If the crime is one punishable by a longer term of imprisonment, the admission to bail under such circumstances mtist be made by a judge of a higher court. (Code Crim. Proc. §§ 557, 558.)

Pending an examination, however, and on any adjournment of the same, unless the crime charged be a non-bailable one, we think the magistrate has power to admit to bail notwithstanding the fact that the crime may be punishable by a longer term of imprisonment than five years.

Chapter 7 of the.Code of Criminal Procedure relates to the examination By a committing magistrate, of a criminal charge. By the various sections of that chapter it is provided that the magistrate must inform the defendant of the charge against him, and of his rights thereunder, one of which is to be allowed a "reasonable time to procure counsel, and the magistrate is commanded to adjourn the examination for that purpose. The period of various adjournménts is restricted, except upon! the consent or motion of the defendant, and section 192 provides that (‘.if an adjournment bé had for.any causey the magistrate must commit thé defendant for examination, or discharge him from custody upon his giving bail to appear during the examination, or upon the deposit of money as provided in this Code, to make sure of liis appearance at the time to which the examination ,is adjourned. ”

The vast majority of crimes are bailable either as matter of right or as matter of discretion, and pending an examination for the purpose of ascertaining whether or not the person charged has probably committed aXcrime and hlíould be held to the grand jury, we ■ think'it was the intention of the Legislature to permit the magistrate to admit to bail. Magistrates remote from a justice1 of the Supreriie Court or a judge of the County Court might issue warrants and hold examinations, and if the magistrate had no power to admit to' bail pending an adjournment taken'.for the purpose of permitting the defendant to procure counsel it might result in an .innocent' person being incarcerated ■ pending his examination. The law is careful to guard the rights of individuals charged with crime and especially before it is shown by proof that the charge is probably true. Before there has been an investigation this cannot be ascertained.

We think that, under section 192 of the' Code of Criminal Procedure, whether the crime charged be punishable by imprisonment ■ exceeding five years or not, on an adjournment during-.the examination, if the' crime be bailable, the magistrate has the right to accept bail or a deposit of money in lieu thereof. After the examination shall have, been had and the defendant held to answer to the grand jury, the magistrate’s power to admit to • bail is governed by tlie provisions of section 557. ■ •

N or do we think, as urged by the appellant, that Richardson as legatee under the will of his wife, had such title to the money as made it his own and gave him the right to buy his liberty with it.

The provisions of the will are very broad with respect to his use of the money, principal as well as interest, for his necessary support and maintenance. The right was undoubtedly given him to exhaust the estate by expenditures for that purpose; but the whole scheme of the will coniines his right to such expenditures and it fails to give him absolute title.

But, notwithstanding this, we think, the defendant can retain the money and that the judgment in favor of the plaintiff for its recovery is wrong and must be reversed.

The deposit was made in currency. There is no pretense of identifying the particular money, the only alleged ground of recovery being that Richardson, who paid it over, was not its legal owner. Nor is there any sufficient proof that the sheriff of the county knew that Richardson was depositing moneys which did not actually belong to him. There was some effort to prove that the sheriff was aware of some circumstances respecting the money and its source, but the question of notice was not submitted to the jury or passed upon by them, and in the absence of such submission or finding, we conclude, even if notice to the sheriff was notice to the county, which we do not now decide, that the evidence was insufficient to establish notice even to him. There is no proof that the county treasurer had any knowledge whatever.

Richardson was in custody pursuant to a lawful mandate. The amount of his bail had been legally fixed. If he had procured sureties to a recognizance, the contract between the county and the sureties would have been that Richardson would appear before the magistrate upon the adjourned day and at such further times as he should be lawfully directed, or in dfefaúlt that they would pay the county the amount of the undertaking. Thus there would have been between the sureties and the county a contract with good consideration, and upon the defendant’s' failure to appear they would have become absolute debtors for the amount - of the undertaking. (People v. Anable, 7 Hill, 33.)

Section 586 of the Code of Criminal Procedure gave Richardson the right, instead of giving bail iri the form of an undertaking with sureties, to deposit with the county treasurer a sum of money equal to the amount of his bail. The act of deposit was upon the same consideration- and subject to the same conditions as the giving of a .written undertaking. . If the money had actually belonged to Richardson there could be no dispute but what the effect of the deposit would have been to create a contract between him and’the county that, in consideration of his release from custody,, he agreed that in case he failed to appear on the adjourned day and such other- times during the examination as he might be lawfully directed, the title to the money would be forfeited by him and pass to the county. And this would be the effect if the money had been deposited by a third person; and the deposit would even be subject to application to the payment of any fine imposed on conviction. (People ex rel. Gilbert v. Laidlaw, 102 N. Y. 588.) Thus, Richardson entered into a valid contract with the county, upon good consideration as between it and him, and paid over the money upon the agreement that the defendant should retain it unless he performed the condition of appearing before the magistrate. He broke that condition before any of the officers of the defendant knew of the source from which the money came, and the contract thus became executed and final. Under such circumstances the true owner could not recover the money paid, even if it had been stolen, for possession of money vests the title in the. holder as to third persons dealing with him and receiving it in due course of business and in good faith, upon a consideration good as between the parties. (Stephens v. Board of Education, 79 N. Y. 183; Hatch v. National Bank, 147 id. 184; Meyers v. New York County National Bank, 36 App. Div, 482.)

This rule has grown up. from the necessity of giving security and certainty to business transactions, for money has no earmarks by which it may he distinguished and its source óf title cannot be traced as can that of a chattel or chose in action.

The transaction of depositing the money in lieu of bail meets all' the requirements of the rule. The consideration was good- as between Richardson and the county, and, therefore; it was good as to all the world. What was done was in due course of business as. prescribed by law, and in'good faith.

The rule invoked is not antagonistic to that salutary one that money may be "recovered by the true owner where it remains on deposit with a bank, or a corporation or an individual, or where it is traced to a corporation or individual with notice, actual or constructive, of the infirmity of title. That may always be done whether the money •can be identified or not, and it may ..be impressed with the trust unless it has passed upon good consideration in a transaction con-ductedin good faith. (Importers & Traders' Nat. Bank v. Peters, 123 N. Y. 272.)

While in our view of the law it is unimportant, yet it can be hardly said that the money was stolen money. Intent is a necessary element of larceny. The language of the will is . ambiguous .and Richardson may have believed that the moneys were his.to do with as he pleased, or he may have lia.d no intent of forfeiting them to the county when lie made his deposit. , ’

Moneys deposited in lieu of bail are to be treated as if they had . been, recovered on a recognizance. (County of Rock Island v. County of Mercer, 24 Ill. 35. See Code Crim. Proc. § 596.) If Richardson had given an undertaking with sureties, and had paid with funds of the estate a judgment against them taken because ■of liis non-appearance, it could hardly be said that the estate could recover the money back upon simply showing that the currency with which the satisfaction of the judgment was. procured was part •of the funds of the estate. So, too, if Richardson had made an unauthorized purchase with funds of the estate the moneys could not be recovered from the innocent vendor. It would be necessary for the estate to go further and show notice or bad faith..

The same rule applies to the moneys herein sought to be recovered.

The judgment must be reversed and a new trial granted, with •costs to the appellant to abide the event, •■

Al'1 concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event; 
      
      Pt. 4, tit. 3, chap. 7.— [Rep.
     
      
       See Code Grim. Proc. § 586 et seg.— [Rep.
     