Opinion
December Term, 1898.
Edward W.S. Johnston, for the appellant.
Charles E. Le Barbier, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, O'BRIEN and INGRAHAM, JJ.
Order affirmed on the opinion of the recorder in the court below.
The following is the opinion of the recorder in the court below:
The petitioner proceeds on an erroneous theory when he contends that the Court of General Sessions had no jurisdiction to forfeit the recognizance taken by one of its judges as a magistrate. A careful examination of the certificate shows that it was not the order of the court but the certificate of Judge MARTINE. While the caption and some words in the body of the instrument support the contention, yet the essential element of an order of court is lacking; it was not entered as an order, nor did it become part of the court's records, and the certificate taken in its entirety shows that it was intended as the act of Judge MARTINE, in his capacity as a magistrate, and not as an order of the Court of General Sessions. As to his power to make such certificate I have no doubt. On the merits there is no doubt but the petitioner has met with great hardships, and were it proper he should be relieved; but it must be borne in mind that he took the principal from the custody of the People and assumed control of him. Had he not done so the People would have had the body of the principal; but the petitioner, by taking him away, afforded him an opportunity to escape, which he took advantage of. To take a person accused of crime from the custody of the People, give him an opportunity to escape, and after some years of freedom to die in a foreign country, and then, after having paid the amount of the bond, petition for its return, is not, in my opinion, a proper case for the exercise of discretion. The case of People v. Wissig (7 Daly, 23), differs from this case on the facts. Motion denied.