Treasurer of Vermont v. Rolfe

The opinion of the court was delivered by Williams, Ch. J. This is a scire facias on a recognizance, entered into for one Williams, who was arrested and in custody on a warrant issued from the county court. The writ is demurred to, and brings in question, both the legality of the recognizance, and the sufficiency of the writ of scire facias. It appears from the writ that a bill of indictment was found by the grand jury, returned into court, a warrant issued thereon, and the respondent arrested ; and that, being in custody, the defendant entered into the recognizance declared on. No power is expressly given to the court, by statute, to take any recognizance in such a case, nor is any form prescribed ; but it is undoubtedly incident to every court, having criminal jurisdiction, not only to bring the offender before them, but to take bail for his appearance, in such form, as shall secure the object intended, to wit, the appearance of the person accused, at all times, when requested. When the offender is brought before a magistrate, for examination, the magistrate is authorized by statute, to take bail for his appearance before the next county court. So when the person is in jail, a judge of the county or supreme court is authorized to' take bail for the appearance of such person, before the county court. It is to be noticed that these statute provisions, which [15] have been in existence for over half a century, require bail only for the personal appearance. A form of recognizance to be taken by the magistrate, was made and published by Judge Cbipman as early as the year 1792, and has ever since been adopted, the condition of which is nearly in the words of the recognizance under consideration. The same condition has been inserted, in all recognizances taken in court, or by a judge out of court, from that time to this ; and we should be very reluctant, at this time, even to question, or doubt their validity. The object of taking bail is, to relieve the person from actual custody, and to secure his appearance whenever wanted either to plead, to take a trial, or to receive the judgment of the court. The condition is fulfilled by the appearing of the person at any day, or at any time when called on, for that purpose, answering by plea, and submitting to hear the sentence of the court. Indeed, this subject appears to have been fully considered and determined in the case of the State Treasurer v. Woodward, 7 Vt. R. 529; and most of the questions which have here been argued were decided in that case. There appears to be no condition in this recognizance, contrary to the usual form, except the condition to remain; and this means nothing more than that he should be at all times, ready to appear and answer, when called for. The breach is well assigned, in stating that the respondent did not appear though called ; and it was not necessary to aver that the respondent and his bail were called and also that he did not appear. Notice of calling the bond was not necessary, as was determined in the case of the Treasurer v. Woodward; nor was it necessary, in the taking of the recognizance, as it was taken during the sitting of the court, to specify any day for his appearance, though the day of appearing should be mentioned if the recognizance be taken in vacation. The writ and the recitals therein, are somewhat inartificially set forth ; but as the recognizance appears to have been in the form long since established, and constantly used, and contains no other conditions except to secure the performance of the duty required of the person indicted; and is, moreover, sanctioned by the decision of this court, in the [16] cases before referred to, we adjudge the same to be sufficient. The judgment of the county court is, therefore, affirmed.