The opinion of the Court was delivered by
It is not now a question, whether the County Court ought to have received the declaration of McFarland in that case, without his becoming personally recognized to Young, the then plaintiff, nor does it now appear, whether he did personally recognize or not. But the question is, whether the recognizance, taken of the defendant, Shaw, into which he understandingly entered, and which, as to the occasion, purpose and condition is against
It is said that the courts in this State, do not derive any power from the common law, but all their powers are conferred by statute, and, although they have common law powers, yet those powers arc conferred by statute ; but this is not precisely so. The establishment of Courts, is provided for by the constitution. They are organized, and their powers, defined, modified, limited or extended by statute, as it was supposed, the nature of the government required, and as would best secure a duo and prompt administration of justice.
The provisions of the constitution are very brief, on this subject, and have a constant reference to the common law, without which they would be unintelligible. Had the legislature simply organized the several courts, without any further provision, relating to their powers or mode of proceeding, they would have had, as necessarily incident, all the powers of similar common law courts, not inconsistent with the nature of the government, and the general provisions of the constitution. Where the legislature have by statute, undertaken to declare, ascertain, limit, extend or modify these pow. ers, the statute must govern, in every case of incidental powers, not acted upon by the legislature, the common law, as applicable to the institution of the court, is the only rule and guide. As to this incidental power of taking recognizances, and such power is unquestionably incident, to every common law court of record, the legislature have not in any one instance acted upon it. It has never been thought necessary to declare the power to exist, in any of the courts. There is not a single clause in any of our statutes, on this subject, either enabling or restraining; and that, because the legislature have alwayá understood, as this Court now understand it} that it is a power incident to every common law court of record.
Every recognizance acknowledged in a court of record, with any legal condition whatever, is a good and legal security to the conuzee, whether conditioned for the payment of money, or for the performance of any thing, not contrary to law. On these principles, this recognizance must be considered as a good and legal security. Had it been a bond of indemnity, executed by the defendant, Shaw, to the plaintiff, with the same condition, which is expressed in this recognizance, no one would presume to question its legality and bringing force. The only difference between the two sureties is, that this is a security authenticated with greater solemnity. There must, therefore, be
Judgment for the plaintiff.