M'Carty v. State

| Ind. | May 4, 1825

Holman, J.

A recognizance was entered into by P, M’Caríy and W. McCarty, before William Helm, one of the associate judges of the county of Fayette; the defeasance of which is in these words: “Yet to be void if default be made in this condition, to wit, that should the said P. M'Carty be and appear in his proper person, before the judges of the Fayette Circuit Court, on the first day of the next term thereof to be holden at Connersville on the second Monday in March next, and then and there answer unto the state of Indiana to a charge of larceny said to have been committed by him in the county aforesaid; .and not depart said Court, but continue from day to day until discharged by the said Court; then this recognizance to be void, else to remain in full force.” P. M'Carly failed to appear, and the recognizance was forfeited. An agreed case was made between W. M'Carty and the attorney for the state, waiving a scire facias and resting the case on the validity of the recognizance. The Circuit Court adjudged the recognizance to be good, and awarded execution against W. McCarty.'

Three objections are raised against the recognizance. The first is, that it was not taken by a proper officer. An associa judge may take a recognizance, but he is generally descrj as being of the Circuit Court, and not of the county as ill recognizance. But as each county has a Circuit Court an associate judges, there can be no possible ground on wh; mistake who the officer is that is styled — an associate judge county of Fayette. The second objection is, that it does not ap that this charge of larceny was made upon oath. We shou not expect this to appear in the recognizance. The recognizance when filed is a record, and presumes that the charge was regularly made before it was acknowledged. It stands on its own terms, independent of any previous proceedings. See Adair v. The State, Nov. term, 1822 ⁽¹⁾. We cannot therefore sustain this objection. It is objected, thirdly, that the recognizance is defeated by its own defeasance. There is some plausibility in this objection; but when we read the defeasance with a reference to the known intent of the whole instrument, this plausibility diminishes. There is nothing in the nature of this recognizance, that entitles it to a construction different from other penal obligations; and the rule of construction that applies generally to such obligations, is,.if possible, to make them answer the purposes for which they were intended. Where they have words that are absurd and repugnant to the design of the instrument, they are to be rejected as void. 2 Saund. 79. The expression in this recognizance — that it was to be void if default were made in the condition — is air absurdity, and is not only contrary to the design of the recognizance, but is also repugnant to the concluding defeasance, which is, that if the condition is performed then the recognizance to be void, else to remain in full force. The whole phraseology of the recognizance cannot stand together: a part must be rejected as nugatory; and it is certainly consistent with every principle of law, to reject that part which has a tendency to destroy the instrument. The principle upon which this question rests, has been decided in the case of Conner v. Paxson, Nov. term, 1822 ⁽²⁾. And we feel no hesitation in retaining.the principle; and rejecting the words that would render this recognizance void, if default be made in the condition.

Rariden, for the plaintiff. Smith, for the state. Per Curiam.

The judgment is affirmed with costs.

(1) Ante, p. 200.

(2) Ante, p. 207,