10 Wend. 464 | N.Y. Sup. Ct. | 1833
It is contended, in the first place, in support of the demurrer, that two justices of the peace have no authority or jurisdiction to let to bail, under the circumstances stated in the declaration, or to take such a recognizance as the one declared on ; and the act of April 13th, 1813, 2 R. L. 506, § 1, 2, 3, declaring the powers and duties of justices of the peace is referred to, as comprising the only authority which justices of the peace possess to bail in any case. The public prosecutor concedes that the authority is not conferred by that or any other statute ; but he contends, that at common law, any member of the court of sessions has a right to bail, after indictment, any person charged with a crime which the court has jurisdiction to try ; and that such common law power has not been taken away or restrained by statute.
Hawkins, in his Pleas of the Crown, p. 103, ed. oj 1739, in considering the question how far bail is grantable by justices of the peace, by construction of the statutes and commission which gave them a jurisdiction over certain crimes, says, that wherever justices of the peace have jurisdiction of a crime, they may bail the person indicted before them of such crime, upon such circumstances as other courts may bail; and that upon this ground it seems clear that any two justices, whereof one is of the quorum, may, of common right, bail persons indicted before the sessions of justices of the peace, for that any two such justices may hear and determine the indictment. It has also, he says, been holden, that any one justice has the like power, because every such justice being a judge of the court which is to determine the offence, seems consequently to have a discretionary power of judging whether it be bailable, and of admitting the party to bail; and he refers to the statute of 1 Rich. 3, ch. 3, which gives one justice of the peace power to bail persons arrested for felony, in like form as if such person had been indicted at sessions, as clearly implying that if such persons had been indicted at sessions, they might have been bailed by any one justice ; and he remarks that the various statutes relating to the power of justices of the peace in granting bail, have not restricted the power which they previously possessed in relation to persons, indicted of bailable
The next inquiry is, whether this power of justices of the peace, to let to bail, as incident to their jurisdiction to try certain offences, has been restrained or modified by statute. The principal provisions upon this subject are contained in the act declaring the powers and duties of justices of the peace. 2 R. L. 506. The first section declares that the justices in the several counties shall have power jointly and severally to cause to be kept all laws for the preservation of the peace, and to
The other objections made to the declaration are, I. That it does not appear that the recognizance was signed by Buck and Forsaith, the principals; 2. That it is not averred that the recognizance was sent or brought into court, or that it had in any manner been made a record; and 3. That it is not averred that it in any manner appears of record that the principals made default, &c. nor does it appear that the defendant made default in producing his principals, &c. Although the declaration may in some of the particulars above mentioned be defective in precision and form, I am inclined to think that it is good upon general demurrer.
It cannot be necessary, in a declaration against the surety, that it should affirmatively appear that the principals signed the recognizance. I am not aware that it is legally indispensable that they should unite in the same recognizance. The
It is undoubtedly necessary that it should appear that the recognizance was filed in, or made a record of the court in which it is returnable. The People v. Van Eps, 4 Wendell, 393, and the cases there cited. 7 Went. Pl. 55 to 78. The declaration in this case, although it does not positively aver that fact, expressly refers to the recognizance as a record of the court of sessions. Upon general demurrer, I am inclined to think this is sufficient. 1 Chitty's Pl. 354,7,8.
The case of The People v. Van Eps shows that the averment that the principals although called did not appear, was in substance equivalent to an averment that their default for not appearing was entered of record, as the entering it of record was the necessary legal consequence of the default.
The averment that the principals, when called, did not appear, necessarily involves the fact that the defendant did not produce them.
The breach is sufficiently alleged. Upon the whole, the plaintiffs are entitled to judgment upon the demurrer, with leave to the defendant to plead on payment of costs.