People ex rel. Norton v. Locke — 3 N.Y. Super. Ct. 443

Majority

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The People, Ex Relatione Norton and Lawrence, v. Locke.

Headnote

The bond required to be given by the eighth section (as amended in 1840,) of the act to abolish imprisonment for debt and to punish fraudulent debtors, conditioned that the debtor shall not remove his property out of the jurisdiction of the court until the final decision, must be executed before an adjournment can be had by the debtor ; and a declaration in an action against a surety upon a recognizance for the debtor's persona.! appearance, given on such adjournment, which contains no averment that such a bond was executed, is bad on demurrer.

The final decision of the officer before whom the proceedings are had, takes place-when the officer decides whether the allegations upon which the warrant issued are sustained or not, and the direction of the statute requiring the commitment of the debtor in ease of conviction, unless he complies with the provisions of the tenth section, must then bo enforced. A recognizance for the debtor’s appearance until the final decision is, therefore, satisfied, if he be present when the judge announces such decision upon the allegations of the creditor; anda further adjournment by the creditor discharges the surety in the recognizance.

Semb, The act provides for only one adjournment of the proceedings, and therefore a recognizance is void which provides for the debtor’s appearance from time to time, as the matter may be adjourned. If a further adjournment be necessary, there must be an express assent in writing of the surety or a fresh recognizance.

(Before Doer, Mason, and Campbell, J.J.)

Feb. 20 ;

March 16, 1850.

p. 444

This was an action brought in the supreme court, in the nann of the people against the defendant, as the surety upon í recognizance given on the arrest of one George N. Carleton, or the application of the relators, under the “ act to abolish imprison mentfor debt and to punish fraudulent debtors,” upon a warran' issued by Judge Daly.

The declaration set forth the proceedings upon which tin warrant was obtained on the 8th of November, 1845, the subse quent arrest of Carleton, his appearance before the officer wh< had issued the warrant, and his controverting the facts and cir cumstances upon which the warrant had issued, and that, there upon, an adjournment of the hearing was granted upon the prayer of Carleton, to the 10th November, 1845, upon his giving a recognizance for his appearance, with the defendant as surety, in the sum of six thousand three hundred dollars. The condition of the recognizance, and the other facts of the case, are mainly set forth in the opinion of the court. The declaration averred that upon the failure of Carleton to appear at the last adjourned day, the court ordered the recognizance to be forfeited, and that the same be put in suit for the benefit of the relators.

To this declaration, the defendant demurred and assigned a great number of causes of demurrer, which it is unnecessary to enumerate, as the decision of the case was based upon those which related to the validity of the recognizance and the powers of the officer before whom the hearing was had. These were, in substance, that the officer had no power to adjourn the hearing after the 10th November ; that lie had no authority to take from the defendant the instrument declared on, and that the same was void; and if valid, that it had been waived by the adjournment to a different time from that appointed therein ; that the condition of the instrument was satisfied by the appearance of the party at the first adjourned day ; or if not that Carleton satisfied it by his appearance in fact, from time to time, until the final decision of the matter. The cause was transferred to this court.

Tlws. W. Tucker, for the plaintiff.

A. G. Bradley, for the defendant.

p. 445

By the Court.

One George N. Carleton was arrested on the application of the relators, under the provisions of the act to abolish imprisonment for debt and to punish fraudulent debtors; and on such arrest, he controverted the facts alleged against him, and entered into a recognizance, in which the defendant in this suit united as his surety, in the sum of six thousand three hundred dollars, and which recognizance recited, and was conditioned as follows:

“ And whereas said Carleton has been arrested under and by virtue of said warrant, and has been brought before the said Daly, and has controverted the facts and circumstances under which said warrant issued, and has prayed an adjournment of the hearing of said matter : — Now, the condition of this recognizance is such, that if said Carleton shall or do well and truly appear before the said Charles P. Daly, Esq., on the tenth day of November instant, at eleven o’clock in the forenoon of that day, at his chambers in the City Hall of the city of Nevr York, and at such other times and places as the hearing of the said matter may f rom time to time be adjourned, until the final decision of the said matter, then the above recognizance to be void; otherwise, to be in ftoll force. Dated 8 th November, 1846.”

The declaration avers that Carleton attended on the tenth day of November, and from time to time until the sixteenth day of December following, on which last day the judge decided that the allegations made by the relators were substantiated, and of which Carleton was convicted, and that on the same day Carleton offered, in pursuance of the provisions of the statute, to make and deliver an inventory of his estate, and an account of his creditors, and to execute an assignment. That thereupon, before the execution and completion of the assignment, and before any order for such assignment was made by the judge, an adjournment was had on the application of the relators, to the 19th of December. That Carleton never afterwards appeared; that the recognizance wms forfeited, and ordered to be put in suit for the benefit of the relators.

To this declaration the defendant demurs, assigning a large

p. 446

number of causes, a few of which it will only be necessary t( notice. It is certainly very questionable whether the recogni zanee is not entirely void. The language of the seventh seetior is: “ and in case of an adjournment, seed officer may take recognizances v, >rh <>v with.>m ¡-urUt. at h'~ dhaarfon, ⅛an the defendant, for hi- appwinu.ee at rio m/fo//, 2 R. S., 214, 2d ed. § 60, declares that ** no sherin or other officer shall take any bond, obligation or security by color of his office, in any other case or manner than such as are provided by law, and any such bond, obligation or security taken otherwise than as herein directed, shall be voids" See also People v. Meigham, 1 Hill. 298 . The act under which this recognizance was given, does not in terms, certainly, call for an undertaking that the debtor shall appear at the adjourned hearing, and also at such other times and places as the hearings may from time to time be adjourned to. Though the act may, in one sense, be considered a statutory remedy for the collection of debts, yet the proceedings under it partake much of the character of criminal pro eeedings, and it may well be that it was the intention of the legislature that, frequent adjournments should not be had, and that the debtor should not be harassed by an unnecessary and protracted contest; that at the adjourned hearing the creditors should be prepared for the examination, or if the debtor show cause for a future adjournment, it should be with the assent of hi- -v\n. or V euterrm info mm m->tgnb anees. At all events, the 'tat etc -pealo ot fh> iiJJin//,,. </ bearin'*: not of adjournments front time to tune and fro n putee to puHv.

Put thnv b another -ei-fom difficulty. The act of 1840, incorporated a- -eetfou e’ghr in the third edition of the revised .'torete'. defouK' foot the .fr H-mlant 'ludí not be entitled to the, adjournment or postponement mentioned In the seventh section, unless he shall give a bond in a penalty of twice the amount of the debt, conditioned that lie will’not remove his property out of the jurisdiction of the court in which the suit is commenced, until the final decision of the matter. It may be remarked, that this eighth section, being the amendment of 1840, speaks of the adjournment, and also of the final decision, the latter expression not occurring in the seventh section. The declaration contains

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no averment that the bond required by the act of 1840 was given, or that it was waived by the relators, or by the defendant in this suit, who became the surety for the personal appearance of the debtor. The adjournment was granted, as appears by the recognizance, and by the averments in the declaration, on the application of Carleton, the debtor. It seems to us that the want of such an averment must be fatal to the plaintiffs. If such a bond had been given, it might materially have diminished the risk of the defendant. If Carleton had been possessed of property, or had given sufficient security, the relators might have secured their debt. In short, it was very material when Carleton applied for the adjournment, that he should give not only a recognizance for his personal appearance, but also a bond conditioned that he would not dispose of or remove his property until the final decision of the judge.

But what was the final decision referred to in the condition of the recognizance, admitting that it was well taken, and was obligatory upon the defendant ? Did not the final decision of the matter referred to take place on the 16th of December, when the judge decided that the allegations against Carleton were sustained { That decision settled the rights of the parties. The debtor had been tried and convicted. If the relators had failed in their proof, or Carleton had disproved the allegations, he would at once have been discharged by the judge. If the decision liad been in favor of Carleton, it would have been final; and we are of opinion that it must be considered as a final decision when pronounced in favor of creditors.

The matter in controversy, charged in the petition and affidavits of the creditors and denied by the debtor, was whether the debtor had or had not committed the fraudulent acts. The judge decided that he had. That decision settled the matter in controversy. There was no longer any discretion to be exercised. The debtor must then pay the debt, or secure it, or make, or secure to be made an assignment of his property, or be committed to the gaol of the county. If on the 16th of December, when the judge pronounced his decision in the matter, there had been a bond given pursuant to the requirement of the act of 1840, and Carleton had been required to furnish a sworn

p. 448

inventory of his property, together with ail account of his creditors, and also to execute forthwith an assignment of his property, the provisions of the statute would have been complied with. But no bond was given, and no assignment was insisted upon, and the adjournment took place on the application of the creditors.

Upon the whole, we think the demurrer well taken, and it must be allowed with costs.