4 Mich. 609 | Mich. | 1857
By the Court,
The first question reserved is, whether, as Benson was a party to the recognizance, this should not have been stated in the declaration.
The declaration does not show on its face whether he was a party or not. From a reference, on the brief of the defendants’ counsel, to Bevised Statutes, Chapter 134, Sections 42,43, which provide, that in the case there mentioned, the Circuit 'Court Commissioner shall be authorized to take the recognizance of a person imprisoned, and of two sufficient sureties, we suppose it is insisted that it is essential to a valid recognizance, that the person bound to appear should be recognized jointly with his sureties; and that, therefore, the declaration does not show a valid recognizance. But a recognizance is a common law obligation, and by the common law, the sureties may be bound separately from their principal; or without this principal being bound at all. (Minor vs. State, 1 Blackf., 236.) Therefore; the alleged omission cannot be availed of on motion in arrest of judgment, which is based solely upon defects apparent on the face of the record.
The evidence on the trial showed, that in this case.Benson, the principal, recognized jointly with the defendants; but it is well settled that in actions ex contractu the non-joinder of the co-contractor is not a ground of variance, and unless it appear on the face of the declaration, can. only be taken
And this rule applies to actions on recognizances and judgments, viz.: Wilson vs. The State, 6 Blackf., 212; Burgess vs. Abbott, 1 Hill, 476; S. C., 6 Hill, 135; Cocks vs. Brewer, 11 Mees. & Welbs., 51; Needham vs. Heath, 17 Verm. R., 224, 225; McGregor vs. Balch, Ib., 563, 567.
The second question is, whether the'recognizance was valid, because it did not contain a sufficient description of the offence. It was a recognizance to answer to an indictment for larceny, without describing what larceny; in this respect the recognizance was in the form sanctioned by long, and, as far as our knowledge extends, almost uniform usage, both here and elsewhere ; and we have no doubt that the naming of the offence, where it belongs to a class which has a definite and well understood general name, is sufficient. (See 1 Monr., 128.) We can see no good reason for requiring greater particularity, and the authorities do not seem to require it. (Gildersleeve vs. People, 10 Barb., 35; Hall vs. State, 15 Alab., 431; State vs. Weaver, 18 Ib., 293; State vs. Hamer, 1 Cart. [Ind.], 359.)
What we have said on this point, is a sufficient answer to the third question, which is : Whether the recognizance was void, inasmuch as it took no notice of the count in the indictment charging Benson as accessory before the fact.
The fourth question is, whether the l-ecognizance was void, becaxxse it did not state the circumstances uxxder which it was taken. Although, at one time some doubts seem to have existed upon the subject, we think it is now well settled, that where the recognizance has a condition to do some act for the doing of which such an obligation may properly be taken, and the Court or officer before whom it was acknowledged, had authority by law to act in cases of that general description, the recognizance is valid, although it does not recite
The fifth question is, whether parol evidence was admissible of the contents of the indictment, it having been destroyed. Although there has been some conflict in the authorities, this question also seems to be very well settled. Mr. Greenleaf, in the first volume of his Evidence, section 509, says : “If a record is lost and is ancient, its existence and contents may sometimes be presumed; but whether it is ancient or recent, after proof of the loss, its contents may be proved like any other document, by any secondary evidence, where the ease does not, from its nature, disclose the existence of other and better evidence. And the cases there cited, and in note (2), to section 81, fully sustain this proposition. See, also, Davies vs. Petit, 6 Eng. (Ark.) R., 349; Osborne vs. Eakin, 10 Smedes & Marsh., 549; Derritt vs. Alexander, 25 Alab. R., 265; Hill vs. Park, 5 Rich. (So. Car.), 87; Harris vs. McRea, 4 Ired., 81; Jackson ex dem. vs. Cullum, 2 Blackf., 228.
The sixth question is, in substance, whether the destruction of the indictment before the term at which Benson was recognized to appear, was not a good defence to this action on the recognizance.
"We think not The condition of the recognizance, was that Benson should appear at the then next term of the Circuit Court, and answer to an indictment against him for larceny, and then to abide the order of the Court. A man’s bail are his jailors, and they are bound to have him as much in the power of the Court, as if he were within its prison walls. Without appearance, or an order of Court to that effect, they