
    The People, Resp’ts, v. Nathan I. Bennett, Impl’d, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1893.)
    
    Recognizance—Fobeeiture—Vacation oe.
    Where the principal makes default and his non-appearance is entered in the minutes, the recognizance becomes ipso facto forfeited. No further or formal order is necessary to fix the liability of the surety. The subsequent surrender of the principal does not of itself work an exoneration. If the record shows that a forfeiture has been incurred, the court has the power, upon the application of the district attorney, to cause such an order to be entered at any time, and when so entered, a certified copy with the recognizance may be filed with the county clerk, and the judgment perfected.
    Appeal from judgment of the New York common pleas, general term, denying application to vacate judgment entered on a forfeited recognizance.
    
      George Bell, for app’lt; Henry B. B. Stapler, Asst. Dist. Atty., for resp’ts.
    
      
       Affirming 46 St. Rep., 964.
    
   Maynard, J.

Under the provisions of the Criminal Code, §§ 593-595 and of the New York City Consolidation Act, § 1480, judgment was summarily entered against the appellant, April 1, 1892, in the clerk’s office of the county of New York, upon his forfeited recognizance in the general sessions as bail for the defendant in an indictment for grand larceny.

The indictment was found March 8th, and on March 19th the appellant was notified that his principal must be produced for trial on the 2'lst; on which day he was duly called and failed to appear, and the following entry was then made in the minutes of the court under the title of the criminal action.

“ On indictment; grand larceny in the first degree. (Filed March 8, 1892.) The defendant not appearing, and Nathan J. Bennett, his surety, not bringing him forth to answer to this indictment pursuant to the conditions of their recognizance, on motion of the district attorney, it is ordered by the court, that the said recognizance, together with a certified copy of this order, be filed in the office of the clerk of the city and county of New York, and that judgment be entered thereon according to law against the said Gfus Johnson, the defendant above named, and the said Nathan L Bennett, his surety, for the several sums set forth in said recognizance.

“ On motion of the district attorney, ordered, by the court, that the defendant stand committed to the custody of the warden of the city prison, until thence delivered by due course of law.”

The principal witness for the People was a non-resident of the city, and was then confined in the house of detention to secure his presence at the trial. When it became known that the defendant in the indictment had made default, this witness sued out a writ of habeas corpiis, and procured his discharge from custody on March 28th. The term of the court at which the principal failed to appear expired March 31st April 1st the appellant surrendered his principal in open court, and he was thereupon committed to the city prison, from which he was afterwards discharged upon his own recognizance on account of the inability of the People to procure the attendance of the complainant. No order was entered at any time remitting the forfeiture or in exoneration of the bail; but after the surrender of the principal and his commitment, an order was entered on April 1st, entitled in the action, containing the same recitals as the entry in the minutes of March 21st, and the further statement that “ on motion of the district attorney it is ordered by this court that the said recognizance be and the same hereby is forfeited.” There was also the same direction as in the minutes in regard to the filing of the recognizance and of a copy of the order and the entry of judgment thereon. It may be assumed that it was upon the filing of a copy of this order with the recognizance*that the judgment was entered. The surety made a motion at the general term of the common pleas for an order vacating the judgment and remitting the forfeiture of the recognizance, which was denied, and an appeal taken to this court.

The sole question to be determined is whether the clerk had jurisdiction, to enter the judgment, and so far as there may be any conflict in the statements contained in the papers read upon the motion, the affidavits and papers filed by the People must be taken as true. The principal ground urged for a reversal of the ■order is that the recognizance was not forfeited until the entry of the order of the general sessions on April 1st, and that as the ■principal had then been surrendered by his surety, and was then in the custody of the People, the criminal court had no, jurisdiction to declare a forfeiture, and thus lay the foundation for the •entry of the judgment in the common pleas. But the forfeiture was, in fact, complete on March 21st, and judgment could then 'have been entered upon filing the recognizance and a certified ■.copy of the minutes of the court.

Under § 593 of the Criminal Code, if the principal makes ■default and his nonappearance is entered in the minutes, the recognizance becomes ipso facto forfeited. ¡No further or formal order is necessary to fix the liability of the surety. His obligation to pay the amount of the bail then accrues and becomes absolute upon the record, and so continues until the surety is relieved or exonerated by the action of the court,' or in some other lawful manner. The subsequent surrender of the principal does not, of itself, work an exoneration. It may be considered and have its proper weight in an application for relief addressed to the favor of the court.

It is important to observe the distinction between the time when the forfeiture is incurred and the time when the judgment may be -entered The one relates to the maturity of the debt, the other to the application of the remedy for its enforcement. It may be that, under § 1480 of the consolidation act, the entry of an order declaring the forfeiture is a prerequisite to the right of the People to summarily enter judgment; but if the record shows that a forfeiture has been incurred, the court has the power, upon the application of the district attorney, to cause such an order to be entered at any time, and when so entered a certified copy with the recognizance may be filed with the county clerk and the judgment perfected. We think the entry in the minutes in this case on March 21st had all the essential qualities of an order forfeiting the recognizance, if not so expressed in terms, and that, upon filing a certified copy thereof, judgment might have been entered; but the district attorney preferred, undoubtedly as a precautionary measure, to apply for a more formal order, as he had a right to ■do, and, when obtained, to make use of it as the basis of the judgment. The substantial rights of the surety were not involved in this procedure. When his principal failed to appear, and the' •court entered that fact in its minutes, he became obligated to pay the record debt, which was then evidenced by the bail piece and the minute of the default. "This obligation continues until discharged by payment or by order of the court for cause shown. An arrest of the principal upon a bench warrant, and his discharge upon entering into another recognizance, to appear and answer to the charge which he kept, is no defense to an action on the first. The People v. Anable, 7 Hill, 33. It has been held that the subsequent trial and conviction of the principal did not affect the forfeiture. Walker v Commonwealth, 79 Ky., 292.

The practice here pursued was also in strict accordance with the agreement of the principal and surety, which was annexed to the recognizance, whereby they stipulated that, if it should be forfeited, a copy of the order of the court forfeiting the same might be filed with the recognizance in the clerk’s office and judgment entered for the sum set forth therein and execution issued forthwith. It is apparent, from the moving papers, that the appellant relied upon a remission of the forfeiture, which, however, was not consummated. When he surrendered his principal on April 1, his counsel made a motion for such relief, which, it is alleged, the court granted. Ho order to that effect appears in the record, and no such order was, in fact, entered. The oral direction of the court upon the subject is not sufficient. The truth in regard to the disposition of this motion undoubtedly appears in the affidavit of the assistant district attorney which, in its material statements, is not in conflict with the moving papers, but supplements them. When the motion was made, he stated to the court that, so far as he knew, the People were in as good a position to prosecute the principal as when the forfeiture occurred. It is to be inferred that if this had been true, an order remitting the forfeiture would have been entered according to the usual practice in such cases. .Bufe this assistant did not have charge of the case at the March term, and was, therefore, not aware of the discharge of the principal witness, without whose evidence a conviction could not be had. Thereupon the district attorney came in and communicated this fact to the judge, who immediately directed the clerk to enter the order of forfeiture. There is no appeal from the decision of the court of sessions, and if there were, its action was discretionary and not re viewable here.

The order of the general term must be affirmed, with costs.

All concur.  