State Treasurer v. Woodward, 7 Vt. 529

State Treasurer v. Woodward

7 Vt. 529 | Vt. | 1835

The opinion of the court was delivered by

Phelps, J.

It is objected in this case, that it does not appear that the defendant was a witness before the court of inquiry. Whether this be necessary or not is perhaps not a very important inquiry, inasmuch as it is to be inferred from the record that the defendant was present in the capacity of a witness, and in that character entered into the recognizance. The legal presumption is that the recognizance was regularly taken.

Another objection is, that the recognizance contains a requirement not authorized by law. The expression “ and not depart without leave of court,” is alleged to be illegal, and therefore not binding on the defendant. It is not to be questioned, that such a recognizance must follow the requirement of the law or it is nugatory. But there is nothing restrictive in the terms of the statute on this subject, nor is the form of the recognizance given. Whether the recognizance in question comes within the scope of the statute, must depend upon general principles. It is a sound rule of construction, that, whenever a power is given by statute in general terms, it is to be presumed that the power is intended to be perfect, and to include every thing necessary for the complete exer-*532°*se of .the power in effecting the purpose in view. A different would derange at once the whole machinery of our jurisprudence. If indeed the particular mode of exercising the power, in any and every supposable case, must be particularly defined, our statutory provisions must be inconveniently prolix, and, what is worse, in tnany cases which would arise, inapplicable and unavailing. Magistrates are required to bind over offenders for trial, and also to bind over witnesses to appear and give testimony on the trial. The object of these statutory provisions is obvious. It is, in one case, to secure a responsibility to the violated law of the land, and in the other, to secure to the public the evidence necessary to the due enforcement of that law. A recognizance in either case id appear simply, if the term is to be strictly construed, would be of no avail. The only way in which such a recognizance could be made to effect the purpose intended by the Legislature, is to construe the term in its most extended sense, and as requiring the a-ppearance -o'f the party, at any and at all times, when, in the course of the proceeding, it could be legally required. If such construction is adopted in this case, the clause objected to becomes unimportant, and the recognizance without it imports all for which the prosecution contends. It becomes necessary, in order to lay a •foundation for the objection, to understand the term appears in its most limited sense, and to hold it satisfied by a single appearance for the professed purpose of trial, although a trial might in the end be evaded. Adopting this construction, the defendant’s counsel insist, that any attempt on the part of the magistrate, to give to the recognizance any further operation, by means of an additional .clause, is unauthorized and illegal. Were we to adopt this opinion tve should at once render the statute idle and nugatory. Of what purpose is it to require the appearance of the party or the witness unless the one can be holden to trial or the otber to give evidence ? We cannot suppose that the legislature, with a single and rational object in view, intended their enactment to be so understood as to defeat their manifest purpose. Such a result is indeed sometimes brought about, by unskilful legislation, and by means of positive enactments. But it is a new doctrine that courts of justice are to lose sight of the legitimate purpose of a law, or, by forced and unreasonable construction, defeat the manifest purpose of the legislature. We are of opinion, that it is not only within the power, but the duty of the magistrate, so to take the recognizances, as to secure the attendance of the party, or the witness, as the case may be, until the proceeding is either finished, in the usual course, or .disposed of by a legal disposition.

*533It follows that the expression, “ and not depart,” Sic. is a material part of the condition. How long is it obligatory' upon the party ? To this question there is but one answer. 'It is obligatory until the purpose of the recognizance is answered. If he can be required to attend one minute, he can be required to attend so long as his attendance is necessary to the purposes of justice. Of this the court are to judge. The result is that the recognizance remains in force until discharged by order of court, or by some legal disposition of the prosecution the proceeding is at an end.' This is the obvious import of the condition, and the only rational meaning that can be given to it.

It is argued that the recognizance expires with the term to which it is returnable. It is difficult to discover how, in the absence of any statutory provision, this can be made out. It would not expire of itself until its purpose is .answered. It was certainly the duty of the defendant to take notice at his peril of the proceedings in the cause, and if it be continued, to take notice that it is so with all its incidents. In short it is his duty so see that the purpose for which he is called into court is effected before he takes it upon him to decline further attendance. This rule is plain and simple-, and if witnesses once understand it, they can find no difficully or embarrassment in regard to their duty.

•As to the supposition, that notice to the defendant was necessa» ry before his recognizance was forfeited, we consider it a matter resting in the comity of the attorney, or, at most, in the discretion of the court; but not a matter of right in the defendant.

The circumstance that the respondent did not appear at the time, if of any importance in the case, is proper to be considered, when we are called upon to exercise our chancery powers in reducing the recognizance.

The judgment of the county court is affirmed.