People v. Bennett

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 sub

sequent 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.