People v. Blackman

granted the motion, holding that although this court had jurisdiction of the cause, it .was not bound to exercise it where the suit could with more propriety be prosecuted in the court of common pleas. The court of common pleas Of Schenectady county has an equitable jurisdiction to remit or discharge this recognizance upon such terms as may be deemed proper, and which power is vested exclusively in that court. (2 R. S. 486, § 37 to 41.) It is therefore fit and proper that the action should be prosecuted in the common pleas. No doubt the common pleas may exercise this equitable power, although the action is pending in this court, (The People v. Van Eps, 4 Wend. 387;) but it can be more conveniently done where the suit is prosecuted in that court.

The question stands essentially on the principle which re*633quires actions on bail bonds and on recognizances of bail, to be prosecuted in the same court in which the original cause was pending. In such cases the court has an equitable power to relieve bail; and where bail was taken in a court of common pleas, and the suit against them is brought in this court, it will be dismissed, unless some special reason for retaining it is shewn. (Burtus v. McCarty, 13 John. 424; Otis v. Wakeman, 1 Hill, 604.) If either of these defendants resided beyond the jurisdiction of the common pleas of Schenectady, that would furnish good cause for bringing the suit in this court. (McDougall v. Richardson, 3 Hill, 558, and cases there referred to.) But both defendants reside in Schenectady, and the action should have been brought in the court of common pleas of that county.

Motion granted.