8 Blackf. 77 | Ind. | 1846
Alexander B. Miller was brought before James Davis, a justice bf the peace of Posey county, Indiana, on the charge of having passed counterfeit money. It being necessary to postpone the examination of the case, the said Alexander, with Isaac Miller as surety, entered into a recognizance conditioned for his appearance before the jus
Piad this been a case in which the forfeiture of the recognizance occurred in the Circuit Court, it is conceded on the part of the state, that that Court should have accepted the surrender and discharged the bail on the terms of the motion; and the question is, whether the same rule applies where the forfeiture is adjudged before a justice of the peace. Sections 96 and 97 of chapt'. 48, R. S. 1843, provide that where a recognizance is forfeited, as in the present case, before a justice of the peace, it shall be filed, with a transcript of the proceedings before the justice, in the office of the clerk of the Circuit Court; and that the subsequent proceedings had thereon to final judgment shall be the same as in cases where the forfeiture is taken in the Circuit Court. And such was held to be the law without the aid of the statute. Ross v. The State, 6 Blackf. 315. Sections 30 and 32 of chapt., 54 of the R. S. above cited, and upon which the defendant below based his motion for a discharge in this case, provide that the bail for the appearance of any person to answer any criminal charge, may, at any time before final judgment on scire facias, surrender his principal in open Court and discharge himself from liability on his recognizance on payment of costs. In the present case, the surrender was made in open Court; it was made before final judgment on scire facias, and upon the terms of paying costs; and we think both the language and reason of the law embrace the case, and that the Circuit Court erred in refusing the defendant’s discharge.
Some doubt has been expressed as to whether the surren
The judgment is reversed. Cause remanded, &c.