offence), nor to depart the court without leave, and to abide its order and decision, then this recognizance to be void; otherwise to remain in full force and virtue. Are you, and each of you, content." A recognizance taken in a court of oyer and terminer for the appearance of a prisoner at a court of sessions to answer a pending indictment, must be entered in the minutes of the court, or it will be void. Such entry must contain all the substantial parts of the recognizance, such as the acknowledgment of the indebtedness, the offence charged, the condition, &c. A mere memorandum that a recognizance in a certain sum was taken, is not sufficient. What was said between the clerk and the bail in the taking of a recognizance cannot be proved by the certificate of the clerk.1 § 54. OF THE THE LIEN OF RECOGNIZANCES UPON REAL ESTATE. No recognizance taken by any court or by any officer, binds any lands, tenements, or real estate, or other property, but such recognizances are to be deemed to be mere evidences of debt.2 It is provided, however, that all recognizances given to answer a charge preferred, or for good behavior, or to appear and testify, in all cases cognizable before courts of criminal jurisdiction in the city of New York, on being forfeited, shall be filed by the district attorney, together with a certified copy of the order of the court forfeiting the same, in the office of the clerk of the said city and county, and thereupon the said clerk shall docket the same in the book kept by him for docketing of judgments, transcripts whereof are filed with him as such clerk, as if the same was the transcript of a judgment record for the amount of the penalty, and the recognizance, and the certified copy of the order forfeiting the recognizance, shall be the judgment record. Such judgment shall, in good faith, be a lien on the real estate of the persons entering into such recognizance, from the time of filing such recognizance and copy order, and docketing the same as above directed. An execution may be issued to collect the amount of said recognizance in the same form as upon a judgment recovered in the court of common pleas of said city and 1 Peo. v. Graham, 1 Park., 141. 22 R. S., 362, § 21. 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 recognizance 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.7 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 1 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; Peọ. v. Bartleu, 3 Hill, 570; 3 Harrington, 333. ▾ 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, 2 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. 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 prosecution 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.1 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 Peo. v. Hainer, 1 Den., 454. Laws 1839, ch. 343, § 2. 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.4 § 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. Idem. §§ 40, 41. C. P.-20. |