| Mass. | Jan 15, 1860
The certificate of the clerk upon the back of the recognizance contains a distinct statement, and is sufficient evidence of the fact, that it had been duly returned and entered of record in the court of common pleas. Upon the default of the principal recognizor, a writ of scire facias might properly issue from that court against him and his sureties.
As to the objection that it does not appear from the writ or evidence produced upon the trial, that the police court in Fall River was authorized to take the recognizance, it is a perfect answer, that the writ sets out the recognizance, in which the proceedings upon which it was founded are fully recited and described. From these recitals it appears that a complaint of which that court had jurisdiction was made therein in due form of law against Lysander Borden, who was afterwards there arraigned, examined and tried thereon; that it was thereupon adjudged that he appeared to be guilty of the offence charged against him, and he was ordered to recognize with sufficient sureties to appear and answer thereto at the court of common pleas then next to be holden at New Bedford within and for the
The first count in the indictment found against him at the erm of the court of common pleas at which he was required to appear and answer sets forth the offence charged against him in the complaint. Its allegations extend to the whole period of time during which he was alleged to have been a common seller; and to this extent the accusation in both is the same. Thus, in answering to the indictment, which succeeded to and was substituted for the complaint, he would have complied with the condition of the recognizance into which he had entered. But he did not appear at all or answer to either. Being called in the court of common pleas upon his recognizance, he did not appear, and his default was accordingly recorded. Its condition was thereby broken and the forfeiture of its penalty incurred.
The refusal of the court to receive, upon the trial, the evidence offered by the defendant, that Borden had been arrested and was then in the custody of the sheriff, upon a warrant issued upon the indictment, was correct. The record of the default was conclusive evidence of the fact, and of course not subject to be impeached, controverted or affected by extrinsic evidence.
Exceptions overruled.