delivered the opinion of the Court.
This is a scire facias upon a recognizance taken before a justice of the peace, and duly certified to the Circuit Court of Jo Daviess county. When so certified, it became a record of that court; consequently, the plea of non est factum was not a proper plea to the action.
It does not appear from the recognizance, that the prisoner had been committed by two justices of the peace. The condition recites that the prisoner was brought before the justice of the peace who took the recognizance, on the fifth day of June, on a charge of larceny. This gave the justice jurisdiction to hear the charge and admit the party to bail.
It is objected, however, that the recognizance is void, having been taken and acknowledged on Sunday, and therefore not binding on the surety.
It is said, that entering into a recognizance, is a judicial act, which, by the common law, if performed on Sunday renders the act void.
Generally, judicial acts cannot be performed on Sunday, yet, verdicts of juries have been received on that day, and held valid. Hoghtaling v. Osborn, 15 Johns. 119; Baxter v. The People, 3 Gilm. 368.
"We do not consider the act of entering into a recognizance to be such a judicial, act as to render its execution void because it was entered into on Sunday. It has none of the elements of a judicial proceeding, except that it is taken and acknowledged before a judicial officer, and is not, therefore, void by the common law.
It is said, however, that it is a violation of section 144 of the criminal code, and therefore void.
That section imposes a fine not exceeding five dollars upon any person who shall knowingly disturb the peace and good order of society by labor or amusement on Sunday, works of necessity and charity excepted.
"What are works of necessity and charity ? As was said in the case of Flagg v. The Inhabitants of Millbury, 4 Cushing, 244, we are not to understand by the word “ necessity,” a physical and absolute necessity, but a moral fitness or propriety of the work done under the circumstances of each particular case. Any work, therefore, necessary to be done to secure the public safety, by the safe keeping of a felon, or delivering him to bail, must come within the true meaning of the exception in the statute. Neither the peace or good order of society is disturbed by such a proceeding, which may be both secretly and silently conducted. And besides, it might be possible a prisoner could not secure the attendance of his surety on the next day, the consequence of which would be, that he would, though innocent, have to be committed to jail. It would be a charitable act, under such circumstances, to take a recognizance. "We are therefore of opinion, that both at common law, and in the exceptions of our statute, the recognizance, though taken on Sunday, was valid and binding.
The judgment of the Circuit Court is therefore affirmed.
Judgment affirmed.