2 Blackf. 104 | Ind. | 1827
Scire facias on a recognizance stating that John Moore and William Stegars, on the 8th of February, 1827,
First, that said Moore, being surrendered by the defendant as his bail to a proper tribunal, and being in the custody of a proper officer, to wit, a constable, by virtue of said surrender, was brought before an associate judge in obedience to a writ of habeas corpus, by the constable, who made his return “without any papers to show why he was detained in the custody of the said Lawman M and that the said judge ordered the said Moore to be discharged, who thereupon was discharged accordingly; averring that the said Moore so discharged, and the said Moore named in said recognizance, were the same person, and that there was no other charge against him but the charge in the recognizance. Secondly, that after entering into the recognizance, and before the recognizance was returned into Court, he retook the said Moore as his bail, and afterwards, on the same day of the date of the recognizance, delivered him to the said justice, and into the custody of the acting constable of said justice; and that said Moore was then and there received by the said justice and constable in discharge qf said recognizance, and to answer to the state for the said offence. Thirdly, that on the — day of —, 1827, he surrendered up the said Moore to the said justice, at his office, who had full authority to receive said Moore, and did receive him and commit him to the custody of a constable; averring that the surrender was made by the defendant, as -the bail of the said Moore, in discharge of his recognizance.
The plaintiff in error contends here, that he had a right to surrender his principal to the justice of the peace who took the recognizance, at any time before the recognizance was returned into Court. If he is correct in this position, and his right to make the surrender does not exist after the recognizance is returned into Court, his first and third pleas must fail; because they do not show the time when the surrender was made, nor that it was made while the recognizance remained with the justice of the peace; and more especially the first, because it does not state that the surrender was made to the justice of the peace, but to a proper tribunal. The second is therefore the only plea that requires our attention. This plea avers a surrender of the principal to the justice of the peace, on the day the recognizance was taken, and before it was returned into Court. It becomes therefore necessary to inquire whether the bail had a pight to make such a surrender. That he would have this right, if we were governed by the English practice, seems to be conceded; but such a right does not seem to be consistent with our system of jurisprudence, nor does it appear to have been contemplated by our legislature. As a general rule it would be extremely inconvenient .and dangerous. A justice of the peace, in this state, is not considered as having a ministerial officer at ají times attending upon him; and in the .absepee of his officer, he is unprepared to detain a prisoner, or to conduct him to prison. So that, independently of any act of the legislature, he would be an improper officer to receive the prisoner at any time the bail might think prqper to surrender him. But the legislature has made ample provision, in all such cases, by authorising sureties in criminal pases to surrender their principals to the sheriff, with a certb fied copy of the recognizance. R. C. 1824, p. 379
But this plea further states, that the justice of the peace received the principal in discharge of the recognizance, and com-
There are some other questions raised in this case but they are without weight. There is nothing in the objection, that the recognizance was not signed by the recognizors. See 1 Chitt. C. L. 104. And the pretext for the objection, that the scire facias was not executed, was at an end as soon as the defendant appeared to the action.
The judgment is affirmed with costs.
R. C. 1831, p. 197, sec. 92, accord.
R. C. 1831, p. 293, accord.