county, in an action of debt in favor of the people against the persons entering into such recognizance.1

The same statute further provides that the costs and fees to be charged for entering such judgment and filing the necessary papers, shall be the usual fees to the clerk for filing papers and entering rules, but that the district attorney shall receive no fees therefor.2

It has been decided that the provisions of the statute above refered to, are not in contravention of the clause of the constitution, which declares that the trial by jury in all cases in which it had been theretofore used, should remain inviolate forever.3

The judgments docketed upon recognizances, as above mentioned, and the executions issued thereon, are subject to the jurisdiction and control of the Court of Common Pleas of the city and county of New York, in the same manner as if such judg ments had been docketed in said court.4

§ 55. RECOGNIZANCE, WHEN FORFEITED.

Where one under recognizance appeared in court answered when called, and without having been summoned by his bail or ordered into custody, entered upon his trial, but before the conclusion of his trial, departed from the court without leave, and did not return, it was held that his recognizance was forfeited."

If the condition of the bond becomes impossible by the act of God, or of the obligee, or the conusee, the performer is excused." As where the party dies, or intermediate the date of the recog nizance and the term of the court therein mentioned, the party was arrested and committed to jail in another county, where he was kept in confinement until after the day of appearance."

So, also, where a surety enters into a recognizance to the people of the State, conditioned that his principal shall appear at court to answer indictment, and subsequently, and before the day named, the principal voluntarily enlists in the militia forces

' Laws 1844, ch. 315, art. 4, § 8.

* Idem, § 9.

Gildersleeve v. The People, 10 Barb., 35.

Laws 1845, ch. 229.

Peo. v. McCoy, 39 Barb., 73.

Peo. v. Manning, 8 Cow., 295; Peo. v. Bartleu, 3 Hill, 570; 3 Harrington, 333.

7 Idem.

in the State, raised by the State under an authorized call of the President of the United States, in consequence of which he is detained by the officers of the State, and prevented from attending according to the recognizance. When called, the party is not liable upon his recognizance, for such a case is within the rule that the performance of the recognizance is rendered impossible by the act of the obligees, and also that it is prevented by act of law and the sureties are discharged.1

A recognizance to appear and answer is not satisfied by an appearance and readiness to answer on the first day, but is broken by not appearing when called on any day of the term. It was so held, although the recognizance did not contain the clause, "That he shall not depart," &c.2

A recognizance to appear and answer before a court or officer is not satisfied by the mere corporal presence of the party; he must answer.3

It is no defence to an action upon a recognizance, conditioned for appearance, that no indictment was found at the court where the accused was bound by it to appear, since the discharge of the accused does not depend on the failure to find a bill; but where none is found, it is in the discretion of the court to discharge him.1

The forfeiture accrues and the right of action becomes complete on default to appear. A subsequent arrest of the prisoner and his discharge upon entering into another recognizance, and the performance of its condition, constitutes no defence to an action on the first.5

§ 56. ESTREATING THE RECOGNIZANCE.

The Revised Statutes provide that whenever any recognizance is directed by law to be estreated, such estreat shall be made by the entry of an order directing the same to be prosecuted. Prior to the entry of the order by the clerk of the court, the following proclamation is made by the clerk: "Hear ye, hear ye,

1 Peo. v. Cook, 30 How., 110; Peo. v. Cushney, 44 Barb., 118.

Peo. v. Stager, 10 Wend., 431; Peo. v. Petry, 2 Hilt., 523. See also 39 Barb., 73.

4

Peo. v. Wilgus, 5 Den., 58.

Champlain v. Peo. (2 Com.), 2 N. Y., 82.

Peo. v. Anable, 7 Hill, 33.

2 R. S., 486, § 32.

hear ye. A B come forth and answer to your name, and save yourself and bail or you will forfeit your recognizance." After a short pause the crier then proceeds: "Hear ye, hear ye, hear ye. CD and E F bring forth A B, your principal, whom you have undertaken to have here this day, or you will forfeit your recognizance." No one answering, the court directs the clerk to enter an order upon the minutes of the court, declaring the recognizance estreated and forfeited, and directing the prosecu tion of the same. Where the party does not appear, pursuant to the terms of the recognizance, the same is sometimes estreated; but the order for a suit thereon is sometimes respited or delayed till a future day, when if the party makes default a suit is ordered."

Upon the estreating of the recognizance, besides the remedy by an action against the sureties upon the recognizance, the district attorney should immediately issue a bench warrant for the arrest of the prisoner. In such cases, upon the re-arrest of the prisoner, it is customary to enter an order vacating the order estreating the recognizance and directing a suit; upon the sureties, paying the expenses of the arrest, including the cost of the court, and expenses of witnesses incident upon the failure of the prisoner to appear, and in such cases where the failure of the prisoner to appear was willful upon his part, it is also customary to refuse to re-let him to bail again.

In the city and county of New York it is not the duty of the district attorney to prosecute forfeited recognizances, unless by express order of the court of general sessions or of the court of oyer and terminer of said city and county.2

§ 57. FORFEITED RECOGNIZANCES, HOW REMITTED.

By the Code of Procedure, the county courts are given power to remit forfeited recognizances, in the same cases, and in the like manner, as such power was given prior to the Code, to courts of common pleas.3

The Court of Common Pleas of the city and county of New York, has likewise power to remit forfeited recognizances, in the same cases, and in like manner, as such power was formerly given

1 Peo. v. Hainer, 1 Den., 454.

* Laws 1839, ch. 343, § 2. Code, § 30, sub. 12.

by law to courts of common pleas, and to correct and discharge the docket of liens and of judgments entered upon recognizances.1

The provision of the Revised Statutes above referred to, in relation to the power of courts of common pleas upon this subject, were as follows: Upon the application of any person whose recognizance shall have become forfeited, or of his surety, the court of common pleas of the county in which such court was held, or in which such recognizance was taken, might, upon good cause shown, remit such forfeiture or recognizance, or any part of the penalty of such recognizance, and might discharge such recognizance, upon such terms as to said court should appear just and equitable, but such provision did not authorize the court to remit or discharge any recognizance taken in one county for the appearance of any person in another, but the power of remitting or discharging such recognizance was to be exercised exclusively by the court of the county in which such person should be bound to appear.2

The statute further provided, that no such application should be heard until reasonable notice should be given to the district attorney of the county, and until he had an opportunity to examine the matter and prepare to resist such application.3

The old statute further provided, that in the order granting the remission of the penalty of the recognizance, or any part thereof, the concurrence of the county judge should be expressed, and that no such application should in any case be granted without payment of the costs and expenses incurred in the proceedings for the collection of the penalty of such recognizance.*

§ 58. SUITS ON RECOGNIZANCES.

Whenever any recognizance to the people of this State shall have become forfeited, the district attorney of the county in which such recognizance was taken shall prosecute the same by action of debt for the penalty thereof; and the proceedings and pleadings therein shall be the same in all respects as in personal actions for the recovery of any debt, except that it shall not be necessary to allege or prove any damages by reason of a breach

'Laws 1854, ch. 198, § 6.

' 2 R. S., 487, §§ 38, 39. * Idem, § 40.

4 Idem. §§ 40, 41.

. C. P.-20.

of the condition of such recognizance; but on such breach being found or confessed, or upon judgment by default being entered against the defendants, the judgment shall be absolute for the penalty of the recognizance.1

All the provisions of the Code of Procedure are applied to all recognizances forfeited in any court of sessions or of oyer and terminer, in any of the counties of this State.2

And by the same act all laws, or parts of laws, or provisions of statutes in any wise conflicting with the application of the Code of Procedure to forfeited recognizances are repealed.3

As to suits upon recognizances in the city and county of New York, see preceding section entitled, "Of the lien of recognizances upon real estate."4

§ 59. POSTPONING THE TRIAL ON THE DEFENDANT'S APPLICATION. In case the defendant is not ready for a trial by reason of the absence of his witnesses, or for other sufficient reasons, his counsel makes an application to the court for a postponement of his trial until some subsequent term of the court; or, as it is technically called, for an order of continuance.

The old English practice of traversing the indictment, as it was called, in cases of misdemeanors-that is, that the defendant was not bound to submit to be tried at the same assizes or sessions at which the bill was found; but had a right to traverse it, that is to put off his trial until the next following assizes or sessions for the same county-does not apply with us."

No notice of the application is required to be given to the district attorney; the appliction is generally made at an early day in the session of the court, although sometimes the prisoner's counsel waits until the case is called up for trial by the district attorney, and then reads the affidavit and makes his motion for . an order of continuance. The trial is generally postponed until the next term of the same court, or the next term of the court of oyer and terminer or of sessions to be held in the county, as the case may happen to be; although, from the particular circum

1

2 R. S., 485, § 27; vide 10 Barb., 35; 4 Wend., 387.

2 Laws 1855, ch., 202, § 1; see § 471 of the Code.

• Id., § 2.

• Ante p. 301.

Arch. Cr. Pl., vol. 1, § 110; 4 Blac. Com., 351.