James, J.
The defendant claims that the judgment below should be reversed, for the following reasons : 1st. Because the entry in the minutes of the court, on the 6th of June, 1860, did not amount to a recognizance^ and therefore the defendant had not entered into any obligation. 2d. If the recognizance, as drawn out and entered on the 11th of October, is relied upon, it is void. The court had no power nor jurisdiction of the person of the defendant, which warranted the entry of such order; and such recognizance so entered, particularly after the indictment was quashed, was wholly unauthorized and void. 3d. If there was a valid recognizance taken on the 6th of June, when the indictment on which it was founded was quashed, the recognizance ceased and became, void. 4th. That Curtis was arrested under the third indictment and taken out of the custody of the bail, whereby the bail was released.
[433]*433A recognizance is defined by Bouvier to be an obligation of record, entered into before a court or officer, duly authorized for that purpose, with a condition to do some act required by law, which is therein specified. Our revised statutes declare that “ all recognizances required or authorized to be taken in any criminal proceeding in open court by any court of record, shall be entered in the minutes of the court, and the substance thereof shall be read to the person recognized. All other recognizances, &c. shall be in writing, and subscribed by the party to be charged,” &c. (2 R. S. 746.)
The recognizance on which this action was brought was taken in open court, and the most that can be said for the entry in the minutes from which it was drawn up is, that it properly entitled the cause, stated the penalty, the court before which the accused was to appear, together with the time and place, the indictment and the offense ; but it did not contain any acknowledgment of indebtedness to the people of the state. In this particular the case is within the construction given to similar entries in the cases of The People v. Rundle, (6 Hill, 506,) and The People v. Graham, (1 Parker’s Cr. R. 141.) In the first case the court say, “the entry produced does not amount to a recognizance; there is no acknowledgment of indebtedness to the people of the state.” In the second case the court said, “ all the substantial parts of the recognizance—such as the acknowledgment of indebtness, the indictment, the offense charged,, the condition, &c. — should have been entered in the mihutes of the court.” Clearly then, unless the recognizance, when drawn up in form, can go beyond the entries in the minutes of the court, no legal obligation was entered into by the defendant on the 6th of June. The requirements of the statute were not complied with at that time, and the entry in the minutes did not amount to a recognizance.
The most important question is, had the court authority and jurisdiction to direct the entry of the order, made on the [434]*43411th of October, setting out a full and complete recognizance against the accused and his surety.
That the court has power to correct clerical errors, or to amend its records on proper notice to the parties interested", is not disputed. But the order and entry in this case cannot be regarded as an amendment. If binding, it imposes new obligations upon the accused and his surety. It declares they acknowledged themselves indebted to the people of the state, which is not true; and unless it was true, the oyer and terminer could not, by any ex parte proceeding, impose that obligation upon them, even though it were the intention of the recognitors to have assumed such obligation and they supposed they had. (Ontario Bank v. Mumford, 2 Barb. Ch. Rep. 613.)
The attention of the court, in this connection, was particularly called to the remark of Justice Bronson at the close of the opinion in the case of The People v. Rundle, (supra,) when, after disposing of the case, he said: “If it (the recognizance) was not utterly void, it was at the most only a memorandum from which the record of a recognizance might have been drawn up.” By reference to the case, it will be seen a recovery was sought upon the minutes of the court, without producing a record properly made up. The court first held that the entry did not amount to a recognizance, and pointed out its defects, and then said, “ if not utterly void, it was at most only a memorandum from which a record might have been drawn up;” not intending to intimate that such entry might be the foundation of a legal record, but only that a perfect and valid entry was but a memorandum from which a record might be made, and from which one should be made before a recovery could be had by action.
It ¿was further urged that this record could not be impeached collaterally; that it imported absolute vérity. The difficulty in the case is that the defect appeared in the records of the court; in the minutes which were the foundation of the recognizance on which the plaintiffs sought to recover.
[435]*435But conceding the entry in the minutes to have been sufficient, and the recognizance legal and binding, when the indictment specified in the recognizance was quashed, the obligation was discharged and the surety released.
The condition of the undertaking was that the accused should appear at a time and place specified, to answer an indictment therein stated; and when the accused-appeared in fulfillment of that undertaking, and that indictment was quashed in open court in his presence, on motion of the district attorney, it was a discharge of the recognizance, and a permission for the prisoner to depart. An acquittal of such indictment, on trial, would most certainly operate as a discharge of the recognizance, and no special leave for the prisoner to depart would need be asked of the court, in order to release the surety from his obligation; and this would be so even though the undertaking, as in this case, contained the clause that the accused should not depart the court without leave, &c.
In a recognizance to answer an indictment, that clause has no force, beyond answering the particular charge named; (The People v. Stager, 10 Wend. 434;) while in a matter before indictment it has force, and is important, to detain the accused until the court shall know what charges are to be brought against him, and in order that the prosecuting officer may have the same control over him, for all offenses brought against him, as the prosecutor would, had the accused remained in the custody of the sheriff. In the one case the recognizance is to answer a particular charge ; in the other it is to answer what may be alleged against him before the grand jury. In this case the grand jury had investigated the complaint, presented their finding in the form of an indictment, the prisoner had been arraigned, the charges read to him and he pleaded thereto; thus forming an issue which was placed upon the record for the court to try ; and a recognizance that the “ prisoner should appear and stand trial upon that indictment, and not depart the court without leave, but abide its [436]*436order and decision/’ was satisfied by an appearance and discharge of the indictment; and cannot be converted into an obligation that the accused should remain to see if any other indictment was to be found, unless formally discharged by the court.
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James, J.
The defendant claims that the judgment below should be reversed, for the following reasons : 1st. Because the entry in the minutes of the court, on the 6th of June, 1860, did not amount to a recognizance^ and therefore the defendant had not entered into any obligation. 2d. If the recognizance, as drawn out and entered on the 11th of October, is relied upon, it is void. The court had no power nor jurisdiction of the person of the defendant, which warranted the entry of such order; and such recognizance so entered, particularly after the indictment was quashed, was wholly unauthorized and void. 3d. If there was a valid recognizance taken on the 6th of June, when the indictment on which it was founded was quashed, the recognizance ceased and became, void. 4th. That Curtis was arrested under the third indictment and taken out of the custody of the bail, whereby the bail was released.
[433]*433A recognizance is defined by Bouvier to be an obligation of record, entered into before a court or officer, duly authorized for that purpose, with a condition to do some act required by law, which is therein specified. Our revised statutes declare that “ all recognizances required or authorized to be taken in any criminal proceeding in open court by any court of record, shall be entered in the minutes of the court, and the substance thereof shall be read to the person recognized. All other recognizances, &c. shall be in writing, and subscribed by the party to be charged,” &c. (2 R. S. 746.)
The recognizance on which this action was brought was taken in open court, and the most that can be said for the entry in the minutes from which it was drawn up is, that it properly entitled the cause, stated the penalty, the court before which the accused was to appear, together with the time and place, the indictment and the offense ; but it did not contain any acknowledgment of indebtedness to the people of the state. In this particular the case is within the construction given to similar entries in the cases of The People v. Rundle, (6 Hill, 506,) and The People v. Graham, (1 Parker’s Cr. R. 141.) In the first case the court say, “the entry produced does not amount to a recognizance; there is no acknowledgment of indebtedness to the people of the state.” In the second case the court said, “ all the substantial parts of the recognizance—such as the acknowledgment of indebtness, the indictment, the offense charged,, the condition, &c. — should have been entered in the mihutes of the court.” Clearly then, unless the recognizance, when drawn up in form, can go beyond the entries in the minutes of the court, no legal obligation was entered into by the defendant on the 6th of June. The requirements of the statute were not complied with at that time, and the entry in the minutes did not amount to a recognizance.
The most important question is, had the court authority and jurisdiction to direct the entry of the order, made on the [434]*43411th of October, setting out a full and complete recognizance against the accused and his surety.
That the court has power to correct clerical errors, or to amend its records on proper notice to the parties interested", is not disputed. But the order and entry in this case cannot be regarded as an amendment. If binding, it imposes new obligations upon the accused and his surety. It declares they acknowledged themselves indebted to the people of the state, which is not true; and unless it was true, the oyer and terminer could not, by any ex parte proceeding, impose that obligation upon them, even though it were the intention of the recognitors to have assumed such obligation and they supposed they had. (Ontario Bank v. Mumford, 2 Barb. Ch. Rep. 613.)
The attention of the court, in this connection, was particularly called to the remark of Justice Bronson at the close of the opinion in the case of The People v. Rundle, (supra,) when, after disposing of the case, he said: “If it (the recognizance) was not utterly void, it was at the most only a memorandum from which the record of a recognizance might have been drawn up.” By reference to the case, it will be seen a recovery was sought upon the minutes of the court, without producing a record properly made up. The court first held that the entry did not amount to a recognizance, and pointed out its defects, and then said, “ if not utterly void, it was at most only a memorandum from which a record might have been drawn up;” not intending to intimate that such entry might be the foundation of a legal record, but only that a perfect and valid entry was but a memorandum from which a record might be made, and from which one should be made before a recovery could be had by action.
It ¿was further urged that this record could not be impeached collaterally; that it imported absolute vérity. The difficulty in the case is that the defect appeared in the records of the court; in the minutes which were the foundation of the recognizance on which the plaintiffs sought to recover.
[435]*435But conceding the entry in the minutes to have been sufficient, and the recognizance legal and binding, when the indictment specified in the recognizance was quashed, the obligation was discharged and the surety released.
The condition of the undertaking was that the accused should appear at a time and place specified, to answer an indictment therein stated; and when the accused-appeared in fulfillment of that undertaking, and that indictment was quashed in open court in his presence, on motion of the district attorney, it was a discharge of the recognizance, and a permission for the prisoner to depart. An acquittal of such indictment, on trial, would most certainly operate as a discharge of the recognizance, and no special leave for the prisoner to depart would need be asked of the court, in order to release the surety from his obligation; and this would be so even though the undertaking, as in this case, contained the clause that the accused should not depart the court without leave, &c.
In a recognizance to answer an indictment, that clause has no force, beyond answering the particular charge named; (The People v. Stager, 10 Wend. 434;) while in a matter before indictment it has force, and is important, to detain the accused until the court shall know what charges are to be brought against him, and in order that the prosecuting officer may have the same control over him, for all offenses brought against him, as the prosecutor would, had the accused remained in the custody of the sheriff. In the one case the recognizance is to answer a particular charge ; in the other it is to answer what may be alleged against him before the grand jury. In this case the grand jury had investigated the complaint, presented their finding in the form of an indictment, the prisoner had been arraigned, the charges read to him and he pleaded thereto; thus forming an issue which was placed upon the record for the court to try ; and a recognizance that the “ prisoner should appear and stand trial upon that indictment, and not depart the court without leave, but abide its [436]*436order and decision/’ was satisfied by an appearance and discharge of the indictment; and cannot be converted into an obligation that the accused should remain to see if any other indictment was to be found, unless formally discharged by the court. The surety at least assumed no such responsibility ; as to him the obligation was single in its purpose, and fully satisfied when the indictment was discharged.
This construction will not conflict with the cases of The People v. Stager, (10 Wend. 434,) and Champlain v. The People, (2 Com. 82,) nor with what, in the former case, was approved from Hawkins’ Pleas of the Crown. In both cases the question arose upon a recognizance to answer charges to be -preferred, and not upon indictment. So in the case quoted from Hawkins. The cases from this state both arose upon demurrer; the first to the pleas and the latter to the declaration. In the first, the plea of rearrest was held good; while a plea that the prisoner appeared at the time and place, and was ready to answer, was held bad. In the second case the declaration was held bad, because it did not contain an averment that an indictment was found at the sitting of the court at which the accused was bound, to apjoear. In the citation from Hawkins, it is true the liability is put upon the express ground that the recognizance contained the clause that the accused should not depart until he had been discharged by the court; but, as. I have previously said, that was a recognizance to answer an information, not an indictment; although an information at that time did not differ from an indictment, in form and substance, except that it was filed at the discretion of the law officer, without the intervention or approval of a grand jury. Still, in such case, no arraignment had been made, no plea to the charge had, no issue formed ; the recognizance was in character precisely what such an obligation now is when a person has been held over by an examining magistrate to answer a charge to be preferred.
It is a sufficient answer to the point, that the undertaking was discharged by the rearrest of the accused on the subse[437]*437quent indictment, to say that no such arrest was proved. The testimony on that branch of the case, instead of proving an arrest, proved the reverse, and hence the court was right in refusing to submit that question to the jury.
[Warren General Term,
July 10, 1860.
Rosekrans, Potter, Boches and James, Justices.]
From these premises my conclusions are:
First. That the entry in the minutes of the court was defective in not stating the acknowledgment of indebtedness, and therefore no legal recognizance was entered into by the defendant.
Second. That the entry in the minutes of the court being defective, there was no memorandum from which to make up a recognizance, and hence there was nothing on which to base the action.
Third. That the court had not authority, ex parte, to manufacture an undertaking imposing obligations upon the accused and his surety never assumed by them.
Fourth. That quashing the indictment which the accused had given bail to appear and answer, upon the motion of the prosecuting officer and in the presence of the accused, while there to answer, was a discharge of the obligation, released the surety and authorized the prisoner’s departure from court without any special permission or order therefrom.
The judgment should be reversed, and a new trial granted; costs to abide the event.
Roseeraes, J. and Potter, J. concurred.
Bocees, J. dissented.
Judgment reversed.