
    The People vs. Anable.
    In debt on a recognizance conditioned that the defendant should appear and answer to an indictment found against him, .the defendant pleaded that, after the forfeiture of the recognizance, and before the commencement of the action, he"was arrested upon a bench warrant isstied upon the same indictment, and that he thereupon entered into another recognizance to'appear and answer, the condition of which he jfully kept and performed. Held, that the matters stated in the plea constituted no defence.
    ON.demurrer to plea. The declaration was in debt on a recognizance entered into at the oyer and terminer, conditioned that the defendant should appear and answer to an indictment found against him; alleging that he did not appear pursuant' to' the terms of the recognizance, but made default &c., and that thereupon the, recognizance was forfeited and ordered tobe prosecuted. Plea, stating in substance that after the forfeiture of the recognizance, and before the commencement of this suit, the defendant was arrested by virtue of a bench warrant issued upon the indictment mentioned in the declaration, and that he thereupon went before an officer and entered into another recognizance to appear and answer to the indictment; averring that he afterwards appeared accordingly, and then and there did and received what was enjoined by the .court &c. The plaintiffs demurred to the plea, and the defendant joined in demurrer.
    
      
      T. Miller, (district attorney,) for the people.
    
      H. Hogeboom, for the defendant.
   By the Court,

Nelson, Ch. J.

The plea is no answer to the cause of action set forth in the declaration. The forfeiture accrued and the right of action became complete on the default for not appearing alleged in the declaration. The condition of the recognizance was then broken, and the parties to it became absolute debtors to the people for the amount of the penalty. (1 Chitty's Cr. L. 92, Am. ed. of 1836.)

In the case of The People v. Bartlett, (3 Hill, 570,) we held that an imprisonment of the accused in another county on a criminal charge, until after the day of appearance, excused the default. So in the case of The People v. Stager, (10 Wend. 431,) it was held that an arrest ón a bench warrant upon the same indictment, before the default for not appearing, would discharge the bail.

But there is neither authority nor principle for the position that a subsequent arrest and discharge can work any such consequence. The plea virtually assumes that the prisoner, after having broken his recognizance, may compel the people to elect between the penalty and the crime. This cannot be maintained.

We have examined the several objections taken to the declaration, and are satisfied that there is no foundation for them, especially as none are to be regarded here but such as relate to matters of substance.

Judgment for the plaintiffs.  