Howie v. State

GOLDTHWAITE, J. --The authority of the justices of the peace to take the recognizances of persons accused of crimes and misdemeanors is purchased by the 20th and 21st sections of the actof 1814. (Aikin’s Digest, 115, 116: § 12, 13) They are directed to recognize them to appear at the next term of the Circuit Court and answer the charge exhibited against them. In the recognizance in the present case there is the superadded condition, to abide by any order, judgment or decree of the Circuit Court in the case. The condition to appear and answer a charge would be discharged by placing the accused in the custody of the court or its appropriate officers at any time previous to the time when he should be required to answer the charge; but a stipulation to abide the order, judgment or decree of a. court would be broken, if the accused was to depart after answering and before execution. This seems to be the view of Ser [117] geant Hawkins, when considering the extent and meaning of the terms to appear and answer. He says, indeed it must be confessed, that if a man’s bail, who are his gaolers of his own choosing, do as effectually secure his|appearance, and put him as much under the power of the court as if he had been in the custody of the appropriate officers; they seem to have answered and to have done all that can reasonably be required of them. The reasonableness of this opinion led to its adoption in practise in the days of this learned commentator, and we have no doubt of its soundness. Where, however, the condition is to answer an accusation and not to depart until he shall be discharged by the court, the same author is clear, that a refusal to appear to a second indictment after a nolle prosequi on the first, after personal notice is a forfeiture of the recognizance. (2 Hawk. P. C. bk. 2, ch. 15, §84, p. 162.) This authority, is conclusive, to show the extent of the meaning of the terms, to appear and answer-, and also, that a super-added condition, may impose a more enlarged obligation. It may be admitted, that the justice of the peace had no authority under the statute to impose on the recognizors the superadded condition, but it does not follow,-that, thereby, the recognizance becomes void; it is merely inoperative as to the condition unauthorized by the statute and in its legal effect is precisely as if the additional words of condition were omitted. This was the conclusion of the court in Whitted v. The Governor, (6 Porter, 335) where it is said, “The Legislature have prescribed a warrant by its act, to guide the court in providing for a defendant’s amenability to the judgment. This warrant ;has not been fol. lowed, and to the extent it was departed from, the act of the court is void:” The determination of the court in the case just cited was adverse tp the sufficiency of the recognizance, although it contained the precise condition required by the statute, in connexion it is true, with others not authorised; but the statutory condition was entirely inoperative from the circumstance that' a mere money judgment was rendered, and if the principal had been produced in court at a subsequent term, no proceedings could [118] then have been had against him. As ho end could be attained by his appearance in court it was held unnecessary to require his appearance. Thus much has been said in explanation of the case of Whitted v. The Governor; as without a critical examination it might seem to warrant the position assumed by the plaintiffs in error. 2. The next objection urged against this judgment is that the recognizance was not certified to the Circuit Court, as directed by the statute. It may be doubted whether the effect of a recognizance can be avoided through the neglect of the justice of the peace to perform the duty imposed by the statute, but in the present case, the magistrate is not liable to the charge, for the only evidence which the Circuit Court had of the recognizance is derived from his certificate; he commences the record of the proceedings before him, by announcing that it must be remembered that on a certain day and year, certain persons came before him and entered into a recognizance. The record is signed by him and it is this which verifies the record, which would be sufficient, if neither signed nor sealed by the recognizors; these circumstances not being essential to the validity of a recognizance which is defined to be an obligation of record. Hence, we conclude, that the recognizance was sufficiently certified within the terms of the statute. 3. The objection that the recognizance, set out on oyer, isvariant from that recited in the judgment nisi, is two-fold: 1st, as to the name of the recognizee; and 2d, as to the charge which the recognizors stipulated, the accused should appearand answer. The recital of the whole recognizance under judgment nisi is unnecessary; nothing is required in such an entry than the statement that the accused was required to answer the charge which the recognizors have stipulated that he should answer; that a default was made; and the recognizance forfeited unless fyc. As no other part of the recognizance than the charge to be answered is essential to be recited in the judgment entry, we are led to the conclusion, that a misrecital of any other part would be entirely immaterial. 4 — 5. We have said it was requisite to state that the accused [119] was required to answer the charge which his recognizors had stipulated he should answer; this is necessary to show a breach of the recognizance, without which it would not be forfeited. If the accused is required to answer a charge variant from that described in the condition of the recognizance, this will not show a breach; and a forfeiture in such a case, is not provided for, and a judgment nisi cannot be supported. It is .essential,, therefore, to ascertain, if the record shows that the accused was required to answer the charge specified in the recognizance. He was called to answer an indictment for forgery; his recognizors had stipulated that he should appear and answer a charge, for counterfeiting a certain draft, purporting do be drawn by John De Loach in favor of John Ormond, and endorsed by hiip, on .It, L. Walker, and accepted by him for two thousand dollars, dated, Unionlown, 24th January, 1839. It is not possible to avoid the conclusion that the accused may have been called to answer forsome other act of forgery than the one which his recognizors had stipulated he should answer. If it is admitted that the magistrate was authorised to require the accused to answer for any charge of forgery the recognizors would in that event have had the option to have consented or have refused to be bound in this general manner. As it is, they are entitled to stand on the conditions they have stipulated; and the State must be held to show affirmatively whatever is necessary to charge them. The general term forgery includes an infinite number of cases; the recognizance mentions only one; and although it may be that the indictment against the accused is for the specific act of forgery, with which he was charged before the magistrate, yet if it be so the record does not disclose that he was called to answer such an indictment, without which there can be no forfeiture of the recognizance. If suit was instituted on a bond with a like condition and the breach was alleged in the same manner as in this judgment nisi, the declaration would be bad on demurrer; as much certainty is required in the judgment nisi, as is requisite in showing a breach of a contract in action of debt; and as this is not shown in the present case, tbg judgment is erroneous. [120] 6. With respect to the last objection, we cannot arrive at the conclusion, that the form of the judgment is unwarranted by the rules of law. It never has been considered necessary, so far as we can ascertain, that proceedings of this sort should be conducted against each recognizor, severally, and each judgment disconnected from all others springing out of the same recognizance. The present practice has obtained uniformly throughout the State, and is safe and convenient. A contrary course would lead to much uncertainty, complexity and expense, which is now avoided. A s'ci.fa. is not necessarily a joint or several process, but may be in either form, when called for by 'convenience. This writ is nothing more than a notification to one or more presons, that certain proceedings have been had of record, and that ■certain consequences will follow, if sufficient cause is not shewn to arrest further proceedings. In such process there can be no reason to require a departure from ordinary practice sanctioned by time and usage. 7. When a final judgment is rendered, on a recognizance, it must necessarily follow the condition. If the parties are jointly bound in one sum, then the judgment is joint; if they are bound in several sums, then must the judgment be several; and this is the same whether the judgment entry is made at the same time or otherwise. The consequence of this is, that all the proceedings subsequent to the final judgment must follow its character. In this case, there are two several judgments, though contained in the same entry; one against each of the plaintiffs in error for the same sum. Neither has any interest or concern with the judgment against the other; they should not therefore have joined in suing out the writ of error. The consequence is, that the writ of error must be dismissed; but, as the case has been very fully argued on all the questions involved, we considered it proper to express our opinion, as it would be decisive of the cases if brought here on proper writs of error.