Whitted v. Governor , 6 Port. 335 ( 1838 )

COLLIER, C. J.

The plaintiff was sued by scire fa- ' das upon a forfeited recognizance. From the record, we learn that Peter Maher, was convicted in the Circuit court of Dallas, of an assault and battery — that pending his trial, certain questions .of law arose, which being decided against him, were referred to this court, as novel and difficult. With the view to obtain their reference for the opinion of the court, Maher, with the plaintiff as his surety, entered into a recognizance, (as it recites,) “freely, voluntarily, and of their own will and pleasute,” payable to the Governor, in the sum of five hundred dollars; conditioned in the event of an ah firmance of judgment, that Maher should appear at the then next succeeding term of the Circuit .court, “ and fully pay, satisfy and abide by the judgment of the court” then rendered. The form of the recognizance is brought to our view by the scire facias, and the second plea of the plaintiff in error, both of which were demurred to. To the former, the demurrer was overruled, and to the latter, sustained; and thus sufficient matter being furnished on which to form an opinion decisive of the case, it will be unnecessary to look farther into the record.

In this aspect of the case, two points have been made by the plaintiff: 1. That the condition of the recognizance is variant from the statute under which it was taken, and consequently does not warrant a recovery. 2. That his plea that the recognizance was extorted by the judge of the Circuit court, coloro officii, was good in law, and should have been sustained.

1. By the first section of the act of 1834, “the more, effectually to secure the administration of justice in criminal cases,” it is enacted “that it shall he the duty of the judges of the Circuit courts of this State, whenever a conviction shall he had in any criminal case, and points reserved as novel and difficult, for the decision of the Supreme court, to proceed and render judgment on the conviction; but the execution of the judgment shall he suspended in cases not capital, until the next succeeding term of the Circuit court rendering the judgment, and the defendant shall be recognized, with good and sufficient securities, to there appear and abide the judgment so rendered.” This statute authorizes the court to require sureties to “ appear and abide the judgment,”— not to “fully pay, satisfy and abide” by it. The act of the Legislature imposes upon a defendant the duty of awaiting or submitting to, while the recognizance greatly extends, lito obligation of himself, and of consequence, his surety. In thus adding to their undertaking, a stipulation not enjoined by the statute, the Circuit court went heyond its legitimate authority, and, in doing so, prejudiced the interests of the surety. Had the recognizance conformed to the statute, it would have been competent for Maher, the principal, to have satisfied it, by_ appearing and availing himself of the laws for the ben'efil of insolvent debtors, hut its terms make it necessary for the relief of the surety, that he should actually pay it. The legislature have prescribed a warrant by its act. to guitle the court in providing for a defendant's amenability to the judgment. This warrant lias not been folio wed, and to the extent to which, it was departed from, the act of the court is void. The remedy which has been adopted, is given “by statute, and only maintainable upon the supposition that the liability which it seeks to redress, was author]sed by a legislative act; tills hypothesis failing, the plaintiff in error cannot be charged in tile present proceeding.

2. We are satisfied that no public officer, no matter to what branch of the government he may belong, has a right, by color of his office, to extort from an individual, a bond, as a condition on which lie will render to him the rights and privileges lie may justly claim by hvw — United States vs. Tingey.^* But without examining tiie plea of the plaintiff, in which this defence is set up, we ave of opinion that the terms of the recognisance estop him from interposing such a defence, it recites 1 hat Maher and the plaintiff “freely, voluntarily, anil of their own will and pleasure,” took upon themselves the obligation it imposes. Here is an acknowledgment of record, and according to the well settled rule that a record cannot be gainsayed, operates as an estoppel upon the plaintiff. That this rule, like all others, has its exceptions, we are aware; yet the plaintiffs plea does not come within any one of them.

In regard to the recognizance, it may be proper to remark, with a view to ulterior proceedings, that the distinction which is.supposed once to have obtained between bonds void in part, by common law, and by statute, is no longer recognized. The true rule, in regard to each, is, that bonds or other deeds are void as to such conditions, covenants or grants as are illegal; and good as to all others which are legal and unexceptionable in their purport. If, however, the illegality was for something malum in se, or if the statute has not confined its prohibitions to the illegal conditions, covenants or grants but has expressly, or by necessary implication, avoided the whole instrument, to all intents and purposes, then there could be no recovery upon any part of it—United States vs Bradley.^* Here the excessive condition is merely illegal, and does not vitiate so punch of the recognizance as is authorized by the statute. So, that if the legal condition was not performed, it would be competent to maintain an action for its breach.

The judgment must be reversed.

* 5 Peters’ R. 115.

* 10 Peters’ R. 343.