McFarlan v. People

Treat, C. J. Several questions arise on the demurrer to the scire facias. First. It is contended, that the obligation set out in the scire facias is not a recognizance. It is in the form of a penal bond, with the condition of a recognizance. It was held, in Shattuck v. The People, 4 Scammon, 477, that such an obligation, under our statute, has the force and effect of a recognizance, and that a scire facias may issue upon it as such. That decision fully disposes of this objection. Second. It appears, from the scire facias, that the recognizance was entered into before two justices of the peace, and it is insisted that it is void for that reason, inasmuch as the charge of manslaughter was examinable by one justice. It is very true, that one justice had jurisdiction of the charge and might legally have taken the recognizance, but the obligation is none the less valid, because another justice was associated with him. Third. It is objected, that the recognizance copied into the scire facias, does not appear on its face, to have been taken and approved by the justices, and by them certified into the Circuit Court. The scire facias, however, contains an express averment that the recognizance was entered into before, and approved by the justices, and was afterwards filed with the clerk of the Circuit Court, whereby it became a matter of record in that Court. This allegation is admitted by the demurrer to be true, and it is clearly sufficient to sustain the judgment. Under it, if put in issue, the people could have shown that the recognizance was taken and approved by the justices, and by them transmitted into the Circuit Court. The case of Noble v. The People, 4 Gilman, 433, does not lay down a contrary doctrine. In that case, the averment was wanting. Fourth. It is also insisted, that the scire facias is defective in not averring that the justices had power and authority to take the recognizance. It does aver that the persons before whom the recognizance was acknowledged, were justices of the peace for the county in which it was taken. In our opinion, this allegation must be held sufficient. The statute confers power on justices of the peace, to take recognizances in all cases of bailable offences committed in their county. Their authority, in this respect, is general, as much so as that of the Circuit Courts. And to this extent, they act as courts of general jurisdiction. The rule, therefore, that presumptions are not to be indulged in favor of the proceedings of courts of limited jurisdiction, is not applicable. Where it appears that these officers have taken the recognizance of a party charged with the commission of a bailable offence in their county, the presumption properly arises that they acted within the line of their duty and authority; in other words, that the charge was regularly preferred and examined, and the proper-decision pronounced, before the recognizance was entered into. The case of the Commonwealth v. Kimberlain, 6 Monroe, 43, is in point. There, the scire facias recited that Kimberlain “ appeared before Thomas M. Buckley and Eeuben Samuel, two of the Commonwealth’s justices of the peace for said county of Henry,” and acknowledged, &c. In answer to the objection that it did not sufficiently appear that the recognizance was taken by persons having competent authority, the court said: “ They are expressly stated to be justices; we are bound to notice the authority and jurisdiction conferred by law on the justices of the county; that they acted within the pale of their authority in taking a recognizance, is a presumption in law which will stand until the contrary is proved.” The same principle is recognized in the Commonwealth v. Miller, 4 B. Monroe, 418, and Shattuck v. The People, supra. Fifth. It is contended, that it was erroneous to enter judgment against two of the cognizors, before the other was brought into court; and the case of Alley v. The People, 1 Gilman, 109, is referred to in support of the position. It is enough to observe, that Alley v. The People, was expressly overruled by the cases of Sans v. The People, 3 Gilman, 327; Crisman v. The People, Ibid. 351, and Pasfield v. The People, Ibid. 406, in all of which the principle is settled, that on a scire facias upon a joint and several recognizance, where service is had on one or more of the cognizors, and a return of nihil as to the rest, execution may be awarded against those served with process. The recognizance in the present case is in terms joint and several. Sixth. During the term at which the judgment was entered, the court directed the clerk to indorse the filing of the recognizance nunc pro time. He failed to comply with the order, and the court, at the succeeding term, directed him then to make the proper indorsement on the recognizance, which was done. These orders are now complained of, but without any good reason. They but required the clerk to do what he ought already to have done. The judgment is affirmed.