Commonwealth v. Emery

Tilghman C. J. after stating the bill of exceptions, delivered his opinion as follows: There is no doubt but the alderman had power to take the recognisance, nor has any question been made on that point. The objections are, that the evidence given to the jury was not a recognisance, but only a loose note, by which it did not appear that the defendant was bound to the com [434] monwealth, or bound at all, and that it was not signed by the alderman. A recognisance is a debt of record, entered into , ,. , _ before some court, judge, or magistrate, having authority to take the same. By the act for establishing courts of judicature, passed in the year 172.2, j'ustices of the peace, in or out of sessions, are authorized to take all manner of recognisances and obligations, which any justice of the peace of Great Britain may do; and when the recognisances are taken out of sessions, they are to be certified to the next general sessions of the peace. In the city of Philadelphia, the aldermen have all the authority of justices of the peace, and recognisances taken by them are certified to the Mayor’s Court. The manner of taking a recognisance is, that the magistrate repeats to the recognisors the obligation into which they are to enter, and the condition of it, at large, and asks them if they are content. He makes a short memorandum, which it is not necessary that they should sign, although a custom has lately taken place in this city, for the recognisors to sign their names. From this short minute, the magistrate may afterwards draw up the recognisance in full form, and certify it to the court. This is the most regular and proper way of proceeding. But the general, and almost the, universal practice is, to certify either the original, or a copy, of the short memorandum. The justices and aldermen usually certify in this manner all recognisances taken by them and returnable to one court, and sign one general certificate relating to them all. In the present case, both the original memorandum, and a certified copy of the return to the Mayor’s Court, were given in evidence; and it appears to me that the evidence was sufficient to support the action. In all countries there are particular modes of doing business, which are known and regarded by their courts. Our courts and justices transact their business with much less form than in England. By this we save much expense, although we are sometimes subject to ill consequences arising from uncertainty. In this commonwealth, the records of the courts of justice, consist principally of short entries, not reduced to form. It is sufficient if these entries contain substance capable of being worked into form. I think it reasonable to apply the same rule to recognisances taken by magistrates out of court. The question will then be, whether the [435] memorandum given in evidence in this case, contained substance sufficient to be drawn into a formal recognisance? I think it did. It contained the sum in which the recognisors were bound, and the nature of the condition. It was entitled The Commonwealth v. Austin, and the crime with which he was charged, was sufficiently mentioned. From all this it is evident that the recognisors were bound to the commonwealth, although it is not expressly said so. I should not be for confirming any illegal practice of justices of the peace, or any practice not expressly sanctioned by law, which might be attended with dangerous consequences. But I see nothing illegal or dangerous in their practice of taking and certifying recognisances by short minutes, or in permiting those minutes to be given in evidence to juries, as often as questions arise on the recognisances. Whether they contain sufficient substance, will always be open to inquiry. In the case now before us, I think the papers offered in evidence, did substantially support the issue joined on the part of the commonwealth; and I am therefore of opinion that .the judgment of the Court of Common Pleas be reversed. Yeates J. and Brackenribge J. concurred. Judgment reverse*}»