32 N.J.L. 313 | N.J. | 1867
The opinion of the court was delivered by
But a single point is raised for consideration by the demurrer in this case, viz., whether a justice of the peace, when a party is brought before him charged with crime, could, at the time, the transaction to which the suit relates, instead of committing the accused during an adjournment of the examination, take from him a recognizance, conditioned for his appearance at the adjourned day.
It is not pretended that this course of proceeding was authorized by any statute of this state, but it is claimed, that the right to take such recognizance belongs to the justice, virtute officii. The counsel who advanced this claim admitted that he had failed to find a single recorded instance
Upon an examination of the foregoing treatises, it will b®
It would certainly appear to be in the highest degree improbable, that if this writer had supposed that the magistrate possessed the right to take bail, with a view to continue the examination before him, that he would have made no reference to it, in connection with his right to commit the accused for the same end. There is, however, no allusion to the existence of such a power. It is likewise observable, that the form of a commitment for re-examination is given; but it is believed that no English model can be found of a recognizance containing a condition for the appearance of the culprit before the justice.
Nor, on the assumption of the existence of the form of the proceeding in question, does it appear to me less surprising that a like silence is preserved in all the judicial decisions .on this subject. Some of them were of a character which, as it would seem, would have naturally evoked, either from the counsel or the court, some reference to the magistrate’s right to take bail. Thus, in the cases of Scavage v. Tateham, Cro. Eliz. 829; Davis v. Capper, 10 B. & C. 28; and Arbuckle v. Taylor, 3 Dow. Rep. 184, the magistrate was charged with an abuse of his power of commitment, by holding the party accused for an exorbitant time; and yet, in none of them, is it anywhere intimated. that the prisoner
I cannot but conclude, that this perfect silence, with relation to the power to take bail in the form now in question, both in the books of practice and in judicial determinations, should be regarded as conclusive evidence of the non-existence of such power.
But again: in addition to the foregoing objections to the ground-work of the plaintiff’s action in this case, it is liable to others of a theoretical nature, which in my opinion, are absolutely unanswerable. Indeed, to admit the right of the magistrate to do the act in question, and to give that act the incidents claimed for it, would be to introduce into the law a complete anomaly. The truth of this remark will, I think, at once become evident, if we consider the essential nature of a recognizance. It is not simply the acknowledgment of a debt, but it is the acknowledgment of a debt of record. Until the acknowledgment becomes the record of a court, it is not, speaking with legal exactness, a recognizance. The acknowledgment of the debt constitutes but a part of the obligation; to its completion, filing as of record, in a court of record, is indispensable. Nor is this mere form ; for, it is to he remembered, that this species of security has, in substance, many of the qualities of a judicial record, It imports absolute verity; its truth is no more traversable than is the truth of a judgment. In pleading, it is invariably treated as a record ; the averment is in the usual form, that it still remains in the court, and its existence, and the truth of its description, as spread out in the pleading, are verified with the customary formula of “pro ut patd per reoordum NvI tiel record is the only plea by which the recognizance, as an existing fact, can be put in issue. These are the attributes of all common law recognizances. 2 Tidd 1083; 2 Saund. 68, a, 1; Vin. Ab., Recg., F ; 2 Cruise 51 ; 1 Inst. 380, C. Therefore, when a judge, or commissioner, or justice of the peace, takes a recognizance of bail, in any of the ordinary cases, either civil or criminal, such recognizance is
Admitting these to be the qualities of a recognizance, I am at a loss to perceive any plausible ground on which the one now in dispute can be held to be legal. A justice, sitting as a conservator of the peace, in the examination of a party charged with crime, does not hold a court of record. His function in this particular, is merely to inquire whether reasonable cause exist to require bail; he cannot try the case. The statute directs him to take the examination of the witnesses in writing, and the statement of the accused, if he is willing to make one, and then, so far from constituting such papers records, or files in the nature of records, such officer is further directed to send these proceedings, together with the recognizance, which he is required to take, if suspicion sufficiently attaches to the party inculpated, to the court having cognizance of the offence. As a justice then holds no court of record, the mere acknowledgment of the debt in question did not amount to a recognizance. The declaration in this case, it is true, avers that the recognizance set forth in the pleading is a record; but, at the same time, by stating the facts of the case, it shows conclusively, that the transaction to which it refers could not have been, in any leg^il sense, recorded.
It was urged on the argument, that the power to admit to bail whilst the accusation of crime is undergoing exami
The foregoing views are not without authority which will, to a considerable extent, afford them support. In Durling v. Hubbell, 9 Conn. 356, one of the grounds for the rejection of a recognizance was, that it appeared from the declaration that such recognizance had not been filed in the court in which the party accused was bound to appear. In two cases in Massachusetts (Bridge, v. Ford, 4 Mass. 641 ; Com. v. Bowney, 9 Mass. 520,) the court held that the allegation that such recognizance had been transmitted to such court, was essential to the substance of the declaration. The State v. Smith, 6 Greenl. 62, rests upon a similar ground.
And in New York, in an action founded on criminal process, it was maintained that a recognizance is not perfected until it is filed or recorded in the court to which it is
As the acknowledgment of the. debt, made before the justice in this case, could not be entered of record in any court of record, I am of opinion that such acknowledgment is not valid as a recognizance, and that, consequently, the demurrer is well taken.
It is proper to remark, that since this cause of action arose,, an act has been passed-giving power to justices to take recognizances, similar to the one above declared to be invalid. A provision is incorporated in this law, directing them, upon forfeiture, to be entered of record in the Court of Oyer and Terminer. See Acts, 1866, p. 535.