25 F. Cas. 1282 | U.S. Circuit Court for the District of Minnesota | 1874
1. The recognizance in this case was sought to be enforced by a complaint or declaration, and thereto the defendants first pleaded, in effect, nul tiel record, and on this plea the cause was tried before the court, and after its submission the court “ordered that the plaintiff have until the first day of the next term to amend its complaint, and upon failure to do so that judgment be entered in favor of the defendants.”
The action of the court permitting the plaintiff to amend the declaration is assigned as error. The record does not state that any exception to this rding of the court was taken, and there is nothing to show that the court Improperly allowed the declaration to be amended.
2. An amended declaration haviifg been filed. the defendants demurred thereto, substantially on the ground that no offense is stated in the recognizance over which the court can take jurisdiction. The demurrer was overruled. and this ruling is now assigned as error. This objection assumes that it is essential to the validity of a recognizance that it shall specify or describe the particular offense with which the principal eognizor is charged—a proposition which I do not decide, though I do not wish to be understood as conceding it to be sound. It is perhaps sufficient that the papers filed in the principal case or proceeding, and the entries of record therein, show that the recognizance is one taken by a competent’court or officer in a proceeding properly commenced, and within the jurisdiction of the tribunal or magistrate taking the obligation. State v. Randolph, 22 Mo. 474. and authorities cited. The recognizance in suit contains, inter alia, a provision that the principal should “not depart from said court without leave thereof." the effect of which, according to Hawkins (Hawk. Pl. C. bk. 2, c. 15, § 84), whose language is approved in the last case cited, is that the parry shall not only appear and answer the particular charge, but also “be forthcoming and ready to answer to any other information exhibited again't him while he continued not discharged.” See, also, People v. Stager, 10 Wend. 431; Champlain v. People, 2 Comst. [2 N. Y.] 81.
I believe there are cases in this country holding that such a provision does not dispense with the necessity of the recognizance describing the particular charge for which the party is to answer, but I do not care to enter upon this inquiry, because, conceding for the purposes of this case, that the special offense must be described in the recognizance, my judgment is that in the case before me it is described with sufficient certainty. The reasons for this view are very satisfactorily stated in the opinion of the district judge in whose conclusion I fully concur, and whose judgment will be found supported by the following cases: State v. Randolph, supra; State v. Rogers (horse stealing), 36 Mo. 138; State v. Marshall (seduction). 21 Iowa, 144; Besimer v. People, 15 Ill. 430; Browder v. State, 9 Ala. 58; Hall v. State, Id. 827; Com. v. Nye, 7 Gray, 316; People v. Blankman, 17 Wend. 252; State Treasurer v. Bishop, 39 Vt. 353.
3. The next assignment of error is that the recognizance on its face, or in connection with facts stated in the declaration, does not show that the commissioner had any jurisdiction or authority to take it. And in argument it is insisted that it does not appear by the recognizance or such parts of the record as are before the court that the offense was committed by George within the district, or when committed, etc. It is not necessary that these circumstances should be shown on the face of the recognizance. In New York, where the proceeding is by declaration instead of scire facias, it has been expressly decided that in such a declaration it is not necessary to aver the special facts showing the officer had authority to take the recognizance in the particular case. People v. Kane, 4 Denio, 530; Champlain v. People, 2 Comst. [2 N. Y.] 81; and these cases have been expressly approved by the supreme court of Minnesota, as applicable to the proceedings in this state as to admitting offenders to bail. State v. Grant, 10 Minn. 39, 48 [Gil. 22]; U. S. v. Rundlett (Case No. 16,208]; U. S. v.
As none of the assignments of error are well taken, the judgment of the district court must he affirmed. Affirmed.
