
    The People of the State of New York against Thomas Coman and Morgan Jones.
    Where a prisoner who had forfeited his recognizance, and was afterwards surrendered by Ms bail, entered into a new recognizance for his appearance: Held, that the judgment upon the former recognizance could not be discharged until the prisoner appeared and took Ms trial, and was either convicted or acquitted; unless a compliance with the condition of the new recognizance became impossible by the act of God, or of the law, or of the obligee.
    The nature and history of the jurisdiction by which certain courts have authority to discharge a judgment entered upon a forfeited recognizance, or the recognizance when estreated, explained.
    The defendant Jones entered into a recognizance for the appearance of the defendant Coman, who was indicted for a criminal offense. Coman failing to appear on the day of trial, the recognizance was forfeited, and by the statute of 1844 (L. 1844, c. 315, art. IV, § 8), became a judgment to be enforced in this court. Coman afterwards surrendered himself, and with the assent of the district attorney entered into a new recognizance to appear and answer to the charge, and the district attorney gave a certificate that he believed that the people were then in as good condition to prosecute Coman upon the indictment, as they were upon the day when the recognizance was forfeited, and that therefore he gave his assent to the discharge of the judgment against Jones. The judgment being a lien upon Jones’ real estate, Jones now applied to this court to have the judgment discharged, or if not, that a certain portion of his real estate which he wished to convey might be released from the operation of the judgment.
    
      Sydney H. Stuart, for the application.
   Per Curiam.

A practice has arisen during the past year, in which all the judges of the court have participated, of dis-. charging judgments upon recognizances, on applications to discharge them, to which the district attorney has consented, upon proof that the accused has either been surrendered by the bail, or has surrendered, himself and entered into a new recognizance, approved by the district attorney, that he would • thereafter appear to be tried upon the indictment, and submit to the final judgment, sentence or order of the court. The question has arisen whether this practice is correct; and after a careful examination of the question, we are all of opinion upon the authorities that it is not.

The rule to be deduced from the authorities is, that the accused having once failed to appear, the judgment on the forfeiture of his recognizance will not be remitted upon his recaption or surrender, until after he has been tried, and either convicted or acquitted. The recognizance of bail is not designed as a satisfaction of the offense, when it is forfeited; and therefore the accused is not discharged, even though the bail upon the forfeiture of the recognizance pays the full amount of the penalty, but the principal continues amenable to the law whenever he can be taken (Petersdorf on Bail, 516). By the common law, the recognizance attached to the lands and property of the bail, when it had been estreated into the exchequer; but with us, by statute, when the principal fails to appear, it is forfeited, and becomes a judgment, which is a lien upon the defendant’s real estate. When the recognizance was thus estreated or forfeited, it could not be discharged, unless the principal appeared and took his trial, and was either convicted or acquitted, or unless a compliance with the condition became impossible by the act of God, or of the law or of the obligee (Rex v. Spencer, 1 Wils. 315 ; Rex v. Grote, 3 Dow. P. C. 955 ; Rex v. Lyon, 3 Burr. 1461; King v. Finmore, 8 T. R. 409 ; Rex v. Stancher, 3 Price, 261; Coke Lit. 206 a; Vin. Abr. Recognizance, E; 1 Price’s Treatise on the Court of Exchequer, B. I, ch. 13). The rule is that stated in The King v. Tomb (10 Mod. 278): “ If recognizances are estreated into the exchequer because not punctually complied with, yet, if the party appear and take his trial at the next session, he may compound for a very small matter in the Court of Exchequer, because the effect, though not the exact form, of the recognizance is complied witli; and in Rex v. Spencer (supra), the point, even where the principal had been tried and acquitted, was whether the recognizance could be discharged until the acquittal had been entered upon record, which the court at first doubted, but afterwards, upon further consideration, they discharged the recognizance, being satisfied of the fact that the principal had been tried and acquitted.

A Court of Exchequer was established in the colony of New York as early as 1686, with the same general jurisdiction as the Court of Exchequer in England, in respect to the king’s revenue and the enforcement and remitting of fines, which was composed of the governor and council, or of so many as the governor and council might commission and appoint (Council Minutes, V, 144; III Col. Doc. 390, 499; VI Col. Doc. 215 ; VII Col. Doc. 827).

The court was afterwards held by the chief justice and the second and third justices of the Supreme Court, probably under authority conferred by their commissions, as the court in 1733, like the Court of Exchequer in England, exercised also jurisdiction in equity (N. Y. Hist. Coll. 355; Pamphlets in the N. Y. Historical Society, Series C, No. 2; 1 E. D. Smith’s Rep. Historical Introduction, lv, lvi, lvii).

On the 31st of July, 1744, an act of the general assembly was passed which, in its effect, was regarded as permanently establishing the court (Journal of the General Assembly, vol. 2, p. 27; VI Col. Doc. 215). The court was in existence in 1766, ten years before the Revolution, but had practically fallen into disuse, as no provision was made for the. payment of its officers, the court being unpopular, both with the legislature and the people (VII Col. Doc. 827). The lords of trade instructed Governor Moore to report to them his opinion respecting it, which he did, declaring that the court was necessary in the colony, and recommending that it should hold four quarterly sessions thereafter, which the lords agreed to take into consideration ; but nothing further appears to have been done,probably from the troubles incident to the breaking out of the Revolution.

By the act of February 9tn, 1786 (1 Greenleaf’s Laws, p. 200), a Court of Exchequer was created, held by the junior justice of the Supreme Court, at every term, as a distinct court, with a clerk and seal, which exercised the same general powers as the English Court of Exchequer, for enforcing or remitting fines and forfeitures. In the words of the statute, it was, among other things, authorized “ upon good cause shown, to remit any such forfeitures, or part thereof, and to discharge such recognizance according to equity and justice,” which act, with some modification, was re-enacted in the Revised Laws of 1801 (c. 135); and of 1813 (c. 90, and c. 104, § 1); and by the act of 1818 (c. 283), the Courts of Common Pleas of the several counties had conferred upon them “ the like power relative to the collection and remission of fines and forfeited recognizance,” which had been by law “for that purpose vested in the Court of Exchequer,” and this was confirmed by the Revised Statutes (vol. 1, p. 486, § 37).

When the Courts of Common Fleas were abolished by the Constitution of 1846, this court was specially excepted from the operation of the Constitution (art. XIV, sec. 13), and retained this, with the rest of its jurisdiction ; and this special jurisdiction was re-affirmed by the act of 1854 (e. 198, p. 464, § 6).

The former Court of Exchequer, and this court after succeeding to its powers in the exercise of this jurisdiction, have exercised it according to the practice settled by adjudged cases in the English Court of Exchequer; and if it had not, the propriety of the practice—as the court must act “ according to equity and justice”—is obvious. It followed the practice of that court, not to discharge upon a surrender, until the principal went to trial, and was either convicted or acquitted (People v. Petry, 2 Hilt. 523). There never was, except where it was indispensable—as in cases like The Schuylkill Nav. Co. v. Farr (4 Watts & Serg. 362)—any such practice as substituting a new recognizance for one estreated and forfeited until the present district attorney introduced it, by acquiescing in sncli applications and giving his certificate or opinion that, as far as he is informed, the people have lost no rights by reason of the failure of the hail to produce the principal; and that he believes them to be in as good a position to prosecute the principal upon the indictments as they were the day that the recognizance was forfeited ; and that therefore he gives his assent to the discharge of the judgment on the recognizance. It appears that the recognizance in this case was forfeited in December, 1873 ; that in October, 1874, Coman surrendered himself, and that a new recognizance was then, with the district attorney’s assent, taken for his further appearance, and that he has not yet been tried. In Rex v. Stancher (3 Price, 261), the principal, after the forfeiture of the recognizance, was committed to prison ; and yet the Court of Exchequer refused to remit the forfeiture, although the prosecution was, with reference to the district attorney’s reasons, in a better situation to secure the principal’s appearing and being tried for the offense, than it would have been by the acceptance of another recognizance for his appearance.

The giving of a new recognizance does not put the people in as good a position as they were before the forfeiture, for the accused having failed to appearand stand his trial is in default; and the consequence of that default is, that the judgment is rendered against the bail, which is a lien upon his lands. If the judgment is discharged, upon the giving of a new recognizance, the accused may fail to appear again, and another judgment have to be entered, which may not be a security upon land; for the bail, if he be the same, may have then parted with his lands, or if he be another person, he may not have any. It is a security, therefore, for due vigilance on the part of the bail, that his land is bound and may be applied upon the judgment, if he does not secure the appearance of his principal, and the law clothes him with extraordinary powers for that purpose. The practice of the English courts, as will appear from the cases cited, is to withhold the enforcement of the forfeiture over one or several terms, until a trial can be had.

The application must be denied.

Note.—After this decision the court established the following rule : “ Rule XXII. All applications to this court to remit fines an.l forfeited recognizances, and to correct or discharge the dockets of liens and judgment entered upon recognizances, shall be made at the general term. The applications shall be upon affidavits and upon a notice of eight days to the district attorneys, and may be made returnable on any day of term during the sitting of the court. Pending such applications, a stay of proceedings upon any such judgment may be applied for at special term. 
      
       Present Daly, Ch. J., and Robinson, Loew, L arremo re and J. F. Daly, JJ.
     