Lang v. People

• Decision Date: 11 July 1866
• Citation: 14 Mich. 439
• Court: Michigan Supreme Court
• Parties: Aaron Lang and others v. The People

14 Mich. 439

Aaron Lang and others v. The People

Supreme Court of Michigan

July 11, 1866

Heard November 7, 1865

Error to St. Clair circuit.

The facts are stated in the opinion.

Judgment affirmed.

Maynard & Meddaugh, and J. S. Crellin, for plaintiff in error:

1. The statute under and by virtue of which judgment was rendered clearly contemplates the service of notice of some kind upon the persons entering into and executing such recognizance that the default has been entered, etc., so that they may have an opportunity to appear and show cause why judgment should not be entered against them; and that it was the duty of the prosecuting attorney to have given defendants below notice of the proceedings before judgment was rendered: Sess. L. 1861, p. 136.

No notice or process of any kind was served on defendants in this case: Scire Facias, 4 Bouv. 84, L. 1863.

2. If such statute does not contemplate or provide for the service of some such notice, or of process of some kind, before the rendering of judgment, so as to give the defendants a day in court, it is unconstitutional and void, because it deprives a man of his property without due process of law: 5 Mich. 251; 11 Id. 113.

A. Williams, attorney-general, for the people:

1. The plaintiff in error was not entitled to the service of any process or notice informing him of the time and place when and where the people would move for such judgment, or that they had any intention of ever, anywhere, doing so: Sess. L. 1861, 136.

2. The act does not contemplate the service of any process or notice; for if it had, it is reasonable to say, that it would have prescribed in substance, by whom it should be issued or signed, at the time and manner of the service of the same.

3. Giving the above mentioned act the construction contended for by us, vests it with no extraordinary character. We have other statutes, some of which have been held to be constitutional, and others not questioned, which confer powers equally large. See the following, to wit: Comp. L., § 822; 5 Mich. 251; Comp. L., §§ 4502-5; 4 Mich. 316; Comp. L., § 3866.

4. The said default having been rendered by the court, the true practice was to move that it be set aside or vacated, upon an application made to the court, based upon a proper and sufficient showing. The force and effect given to it by said act, No. 106, while it remained an order or judgment of the court, could be avoided in no other way: 10 Mich. 113.

5. Nor is said act, No. 106, in conflict with that part of article 5, of the amendment to the constitution of the United States, which provides that "no person shall * * * be deprived of life, liberty, or property without due process of law;" for this article was designed only as a limitation or restraint upon federal power and authority: 5 How. 434; 7 Pet. 243.

6. Nor does said act, 106, at all conflict with so much of section 32, article 6, of our state constitution as provides that "no person shall * * * be deprived of life, liberty, or property, without due process of law." This constitutional provision has the same meaning as the phrase, "the law of the land," and was designed to prevent special legislation which might operate unjustly and unequally upon individuals against their will, and not legislation general in its operation, and that affects the rights of all alike. The act in question is of the latter class, and was not intended to operate upon the rights of the plaintiff in error, or any other individual, as such. This, of itself, is sufficient to take it from under this part of our state constitution: 5 Mich. 251; 19 Wend. 659, 675.

7. While congress possesses only such powers as have been expressly granted to it, or are necessary to make effectual such powers, our state legislature possesses all legislative power, not prohibited by the express words of the federal or state constitution, or by some necessary implication of one of them. There is no express provision in either of the above mentioned constitutions, against the passage of the act in question; and we submit that there is no necessary implication of any section or clause of one or the other of them, with which the above mentioned act, or any of its provisions, at all conflicts. After all, the real question, as it regards the validity of said act, is one of power on the part of the legislature, and into which expediency does not at all enter: 5 Mich. 256-9.

Cooley, J. Martin, Ch. J. concurred. Campbell, J., Christiancy, J. concurred.

OPINION

Cooley J.:

The judgment in this case recites that the said Aaron Lang, being under recognizance in the sum of three thousand dollars to appear and answer to an information to be filed for uttering counterfeit money as true, with Moses Lang and John S Crellin as sureties, and having failed to perform the condition of such recognizance, which failure has been entered of record by order of the court; and more than two days having elapsed since such entry, and no good cause to the contrary appearing, it is thereupon ordered that judgment be entered, etc. The only assignment of error is, that the judgment was rendered "upon a certain recognizance purporting to be signed and entered into by the plaintiffs in error, without giving notice to the plaintiffs in error, or either of them, by the service of process or otherwise, that any proceedings were to be had against them, or either of them, upon said recognizance, whereby the plaintiffs in error were deprived of their right to contest the question of their liability upon said recognizance." Another error was suggested on the argument, but as it was not specially assigned, we must consider it, under our rules, as waived: Sup. Court Rule 12; Webster v. Fisk, 9 Mich. 250.

The questions which arise in the case are: First, whether the statute authorizes judgment to be thus entered up, upon default being entered, without notice to the connusors; and if so, then, second, whether such statute is constitutional. And we may be aided in coming to a conclusion upon these questions, by considering what was the nature of a recognizance, and what the effect of forfeiture at the common law.

A recognizance is said to be an obligation of record, with condition to be void on performance of some act specified. It is entered into either before some court of record, or before a magistrate out of court, and afterwards enrolled in a court of record; but in the latter case it is the acknowledgment that gives the recognizance its force as a record, and the enrollment is for safe custody and notifying it to others: 2 Tidd's Pr., 1083-4; 2 Wms. Saund., 8, i(5), and cases cited. When forfeiture is declared and duly entered of record, the liability of the connusor is regarded as fixed, though there were always modes in which matters of excuse or of equitable consideration might be afterwards presented, depending somewhat on the nature of the case. If the condition was the performance of some act in court--as to appear and answer, or to give evidence, or prosecute--the breach is to be adjudged by the court and entered of record when it occurs; while a recognizance to keep the peace would stand upon a somewhat different footing, and a forfeiture could only be declared after trial, and upon proof of facts of which the courts could not judicially take notice: Bac. Abr. Scire Facias, 2; 2 Tidd Pr., 1093; 2 Carr. & P., 10, and note; Queen v. Justices, etc., 7 A. & E., 583. A recognizance binding a party to appear in court, is said to be forfeited if he fail to appear, be the cause of his absence what it may: Regina v. Ridpath, 10 Mod. 154; Rex v. Hankins, 1 McClel. & Y., 27; and in England it then became liable to be estreated; that is, taken out from among the other records and sent up to the exchequer, which rendered the connusor an absolute debtor to the crown for the sum or penalty therein mentioned: 3 Pet. Abr. Bail, ix, 1; 14 Id., Recognizance, ix note.; Pet. on Bail, 536; 2 Chit. Gen. Pr., 296.

The principal question here is, as to the proper mode of enforcing a forfeited recognizance. The regular mode in England is said to be an extent in chief; though a scire facias is sometimes issued if it be doubtful whether the recognizance is forfeited: 2 Tidd's Pr., 1091. The process by extent does not exist in this country, and, independent of statutory provisions prescribing a different course, the proceeding by scire facias would be the proper one: Pinckard v. People, 2 Ill. 187; Alley v. People, 6 Id. 109; Sans v. People, 8 Id. 327; Besimer v. People, 15 Id. 439; Choate v. People, 19 Id. 63; Weese v. People, 19 Id. 643; Graham v. State, 7 Blackf. 313; Hall v. State, 15 Ala. 431. But it has been held that an action of debt might also be brought: 5 Dane Abr. Ch., 150, Art. 4 People v. Van Eps, 4 Wend. 390. In either proceeding the recognizance, being a record, would import absolute verity, and would not be open to contradiction by parol evidence: People v. Kane, 4 Denio 543. The record of the forfeiture, I apprehend, would stand upon the same footing. But evidence might be received to show the recognizance forged; for if forged it was no record: Patton v. Miller, 13 Sergt. & Rawle, 254; Elliott v. Green, 10 Mich. 113; and the question of the identity of the defendant with the connusor would always be open. The defendant might also plead any matter of discharge subsequent to the forfeiture; and it has been held a good bar to the action that performance by the principal was prevented by the act of God: People v. Manning, 8 Cow. 297; or by his imprisonment elsewhere: People v. Bartlett, 3 Hill 570.

But it is obvious that matters of excuse or discharge can only be presented by plea, when enforcement is sought by suit; and if suit was always essential,...