32 Conn. 221 | Conn. | 1864
This is an action on a recognizance entered into by the defendant with one Orson A. Brooks before Justice Hollister, the object of which was to enforce the appearance of said Brooks before the justice on certain days when a case under the bastardy act, in favor of the plaintiffs and against said Brooks, was pending. Several exceptions to the right of the plaintiffs to the judgment of the court in their favor are taken by the defendant, which will be noticed in their order.
- First, it is claimed that the justice had no power to take any recognizance whatever; that the statute provides only for a bond of recognizance where probable cause for the complaint is found, and the delinquent is bound over for his appearance before the superior court; and that, as this is a civil suit, if any bail was taken on the adjournment, it should have been to the officer having the delinquent in custody, as in other civil proceedings. . It is true, the object of the proceeding is to
It is claimed, secondly, that the recognizance should have been for the appearance of the party simply, and not “ to abide the order or judgment of said court, &c.” In cases where delinquents are bound over to a higher court it has, as remarked by Judge Hosmer in Waldo v. Spencer, 4 Conn., 78, “ been a very common practice for many years to superadd that he shall abide judgment.” The precise effect of 'this stipulation is not now under consideration. The only ques
It is claimed, thirdly, that the statute requires a bond instead of a recognizance in a binding over, .and hence, by analogy, a bond and not a reco'gnizance should be taken on an adjournment. But a recognizance is nothing but an obligation of record: it is therefore a bond in the strict sense of the word, where the court or magistrate has authority to take it. Nothing is more common than to speak of a recognizance as a bond. When therefore the statute speaks of a party’s “becoming bound with surety” or of his “giving a bond with surety” to appear before a court and answer to a complaint, it is called a binding over, and the entering into a recognizance or obligation of record for that purpose is an authorized and legal compliance with the order.
In the fourth place, it is claimed that the defendant in the suit appeared at the time when he was bound to appear, and made answer to the complaint, and therefore the recognizance was discharged. The cause was first adjourned to the 27th of October, 1860, and Brooks, with the. defendant as his surety, entered into the recognizance now in suit, the condition of which was that he should appear at the time to which the cause was adjourned on- that day “ and answer to the complaint and abide the order or judgment of the court touching said complaint on the matters therein charged.” The record then shows that on motion the further hearing of said charges came by legal continuances to the 21st day of September,
It is claimed in the fifth place, that the justice’s record shows that there was but one legal adjourned session of his court, and consequently the session when the bond was called was illegal, and the bond has therefore never been forfeited. The record upon which this question arises is in these words: “ And on motion the further hearing of said charges came by legal continuances, to wit, by continuances from week to week, by agreement of the parties, the town and Brooks, to the 10th day of November, 1860, and thereafter by continuances, by like agreement of the parties, from day to day; said agreement being that such action should be had as security for the performance by the defendant of the terms of an agreement of settlement, and until further action should be required by either party. The cause was thus continued under that agreement, without the appearance in person or otherwise of either party, and without any further action or order by the court, until after the absconding of the defendant, and until the 21st day of September, at nine o’clock in the forenoon.” The claim in this part of the case is, that these adjournments from week to week, and especially those from day to day, were entirely irregular, because the justice had no authority to adjourn without the presence of the parties. We do not assent to this 'view. If the case had been pending before a court having regular ternas the entry of an'appearance on the first or second day of the term would be considered as an
We are of opiniop, therefore, for these reasons, that none of the objections to the plaintiffs’ right to recover ought to prevail, and we accordingly advise the superior court to render judgment for the plaintiffs..
In this opinion the other judges concurred.