By the Court —
McMillan, J.— This is an action brought by the State of Minnesota against Grant- impleaded with Pittman, upon a recognizance entered into by them, conditioned for the appearance of said Pittman to answer any indictment that might be preferred against him touching a charge of larceny made against him on the oath of one Jacob Brihoffer. Grant, the Defendant below, demurs to the complaint.
There are two substantive grounds of demurrer:
1. That the Plaintiff has no legal capacity to sue.
2. That the complaint does not state facts sufficient to constitute a cause of action.
We do not consider it necessary to discuss the first ground of demurrer. We are clearly of opinion that it is not well taken.
The Defendant urges several objections in support of the second ground of demurrer.
The recognizance in the case appears to have been taken at Chambers before the lion. Lafayette Emmett, Chief Justice of the Supreme Court, in the course of proceedings upon a writ of habeas corpus allowed by the Chief Justice on the application of Pittman. It appears from the certificate of the Chief Justice certifying the recognizance, that in obedience to the command of a writ of habeas corpus,'allowed by his honor on the application of Pittman, directed to the Sheriff of the county of Ramsey, the said Sheriff appeared before him having with him the body of the said Pittman, together with said writ and the day and cause of the caption and detention of the relator, Pittman; that on the return of the writ the said Pittman waived all objection to the legality of . said caption and detention and asked to be admitted to bail. It further appears from the recitals in the recognizance that said Pittman was charged upon the oath of one Jacob Brihoffer, of the county of Carver, Minnesota, with having on the 11th day of March, 1862, at the said county of Carver, committed the crime of larceny, by “ wilfully, maliciously and feloniously steal*46ing, taking and carrying away two bay mares of the value of three hundred dollars, and two sets of harness of the value of thirty dollars, and one sled of the value of twenty dollars, all the property of Ernest Popitz, of said county of Carver,” and that said Pittman was committed to answer said charge.
The power to issue writs of habeas corpus is expressly conferred upon any Judge of the Supreme Court by the statute. Pub. Stat., Chap. 73, Sec. 26.
Under the Constitution of the United States, which so far as the principle involved in this case is concerned, is not materially different from that of our State, the power of Congress to confer upon the Supreme Court of the United States the authority to issue writs of habeas corpus otherwise than in the course of its appellate jurisdiction, was very ably and elaborately discussed before, and maturely considered by that Court, and while there was a difference of opinion in regard to the constitutionality of the law conferring the power upon the Court, there appeared to be no doubt in the mind of any member of the Court as to the constitutionality of the act so far as the power was conferred upon the Judges of that tribunal. Ex parte Bollman and Swartwout, 4 Cranch., 75.
Whatever, therefore, may be the power of the Judges of this Court to take recognizances generally, we are of opinion that the statute conferring jurisdiction to allow writs of habeas corpus, is not in conflict with the Constitution, and that the taking of recognizances in the course of proceedings on writs of habeas corpus is within the jurisdiction of the Judges of this Court.
The Chief Justice, therefore, having this jurisdiction, it is only necessary that it appear from the recognizance that it was taken in a case in which he might take a recognizance, and is conditioned to do some act for the performance of which a recognizance may be properly taken. It is true there are authorities which hold a contrary doctrine. The cases of The People vs. Koeber, 7 Hill, 39, and The People vs. Young, 7 Hill, 44, hold the doctrine that when a recognizance is taken before a Court or officer of limited jurisdiction, facts which confer the jurisdiction must appear from *47the recognizance, otherwise it will be void. But these cases are distinctly overruled by subsequent decisions in New York,'by a majority of the Court, in The People vs. Kane, 4 Denio, 530, and unanimously by the Court in Champlin vs. The People, 2 Comstock, 82. In the latter cases the error of the former decisions in applying the same rule to a recognizance, which is a voluntary obligation, as to a mittimus or other proceeding of that nature to which the assent of the party could not be presumed or supposed, is clearly pointed out.
From an examination of the following authorities cited by the Plaintiff in error, we find the case of 7 Mass., 280, was one where a Justice took a recognizance to a party for treble damages in an action for receiving stolen goods where no such damages were authorized by statute. In 11 Mass., 337, the Justice took a recognizance in a case of murder, which was not a bailable offence. In 19 Mass., 197, a Justice of the Peace took a recognizance after a verdict of guilty in a court of record, which was held to be illegal, and in the case in 28 Wend., one Justice took a recognizance where two Justices were required to act. In all these cases it will be perceived that the recognizances appeared upon their face to he void for want of jurisdiction in the officers taking them. They are not, therefore, applicable as authorities in this case, as an .entirely different state of facts exist in this instance. But the recitals in the recognizance in this case are so full, that it is scarcely necessary to apply the rule of law applicable to such cases. It does not appear, it is true, that any examination was had before the Chief Justice upon the return of the writ of habeas corpus, but it does appear that the Defendant expressly waived all objections, to his caption and detention and asked to be admitted to bail. This it was entirely competent for him to do. It is well remarked by Ruggles, J., in delivering the opinion of the Court in Champlin vs. The People, cited ante: “Although an offender is entitled to the benefit of all the forms and provisions contained in the statute, in relation to his arrest, examination and order for commitment before he can be compelled to enter into a recognizance to appear and answer, yet he may waive those forms, *48and when charged with an offence may prefer to give bail at once, without waiting for an arrest or an examination according to the forms prescribed in the statute.. This is not unfrequently done, and no doubt can be entertained of the validity of a recognizance taken under such circumstances.” These remarks apply with even greater force to proceedings on habeas corpus, which are instituted at the instance of the prisoner and for his benefit, than to the case of an arrest. So. far, therefore, as the first five objections are concerned, we are of opinion they are not Well taken.
The sixth objection is based upon a mistake of the fact shown by the record. The order of the Chief Justice, as appears from the record, is that Pittman be admitted to bad upon entering into recognizance, &c., with sufficient security, &c., the order, therefore, is strictly complied with in taking the Defendant Grant as bail. But even if the fact was as is supposed by the Plaintiff in error, we do not think the objection would be a valid one.
The seventh and eighth objections are substantially the same; that it does not appear that the recognizance was filed. A recognizance is an obligation of record which a man enters into before some court of record or magistrate duly authorized, to do some particular act, as to appear at the assizes, &p. 2 Bl., 341.
A recognizance taken out of Court cannot become a record until it is filed in the proper Court, and it must be a record before it is a complete obligation. This is the common law doctrine on the subject, (2 Tidd's Pr., 1182,) and prevails in the absence of statutory change. The objection, therefore, is fatal to the complaint.
The ninth objection is that it does not appear that there has ever been any forfeiture of said recognizance as against the Defendant.
The allegations of the complaint on this point are that the said Defendant, Ephraim Pittman, being duly called by said Court to answer the said indictment, found as aforesaid, did not appear at said general term of said Court to answer to said indictment as required by his recognizance, neither did any one appear to make answer for him. The point of the objection, we apprehend, is *49that the bail was' not called with the principal. This is not essential, although we regard it as the better' practice. The condition of the recognizance is that the Defendant Pittman appear, and his failure to appear when called was a breach of it.
The tenth objection is that it does not appear that the sum of five hundred dollars [the penalty of the recognizance] has not been paid. This is not necessary. Payment is matter which may be pleaded in defence as in other cases.
The remaining objection is that it does not appear that the judgment of forfeiture was entered of record, or in any manner recorded.
The complaint after alleging the [calling of the defendant Pittman and his failure to appear, avers, “ whereupon his default was recorded by said Court and said recognizance adjudged forfeited.”
The proceedings in case of the forfeiture of a recognizance are prescribed by statute, Chap. 103, secs. 28, 9, 30, and 1. All that would seem to be required by this statute before bringing an action to recover the penalty of the recognizance is a record of the default of the person under recognizance. Sec. 28, cited ante. The record of the default is averred in this complaint. The objection is not well taken.
The complaint however is defective in not alleging the filing of the recognizance in the proper court, and on this ground the demurrer should have been sustained.
The judgment must therefore be reversed, with leave to the defendant in error to amend the complaint within twenty days after the service of notice of this order upon the County Attorney of Carver County. The cause is remanded to the court below for further proceedings in accordance with this opinion.