Commonwealth versus William Gibbs M'Neill, 19 Pick. 127

Shaw C. J. delivered the opinion of the Court. ■ This record is so voluminous, and the pleadings branch out into so in any issues and causes of demurrer, that it would be difficult to give an intelligible abstract of the pleadings, without going into unnecessary minuteness of detail. The case resolves itself into two or three questions of law, the result of which will decide the case. 1. The first is, whether the Court of Common Pleas has original jurisdiction to receive and enroll an estreated recognizance from the Municipal Court, and issue scire facias upon it.

It seemed strange that such an objection should be now taken, as it is believed to have been the universal practice for a series of years, for the Court of Common Pleas to exercise this jurisdiction, and for this Court to entertain appeals from the judgments of the Court of Common Pleas without objection ; and an instance occurred at the last term of this Court, in which a judgment was given for the Commonwealth in precisely such a case, without exception. Commonwealth v. Bail of Gordon, 15 Pick. 193. Nor are we aware of any case, in which the same jurisdiction has been claimed or exercised in any other court.

A similar case was before the Court in Johnson v. Randall, 7 Mass. R. 340. It was a recognizance taken before a justice of the peace, binding the party to appear before the Municipal Court, to answer as the putative father of a bastard child. But it did not appear that it had been returned to, or recorded in that court, or by that court ordered to be es-treated and sent to the Court of Common Pleas, where a scire facias was commenced.

The Court there point out the course to be pursued, that scire facias must issue from the court where the recognizance is recorded, that justices taking recognizances are to return them to the court at which the principals are bound to appear, that if from the jurisdiction of that court it could not award execution upon a scire facias, that is, if it be a court not having jurisdiction in civil cases, it ought to certify the recognizance to some court where such execution could be awarded.

The Court then cite St. 1783, c. 51, directing the Court of Sessions to certify certain recognizances to the Common Pleas, with a record of the default thereon, and for the same reason the Municipal Court ought to certify the recognizances returned there by any justice of the peace, with the default of the conusor thereon, to the Common Pleas, where it should be entered on record.

The Court, in the case cited, appear to consider the St. 1783, c. 51, § 2, as applying to all recognizances taken by justices of the peace and returnable to the Court of Sessions, whereas it applies in terms only to recognizances taken on appeals from the judgments of justices of the peace in criminal cases. But the same reason applies to other cases ; and probably this provision for certifying defaulted recognizances to the Court of Common Pleas, was only in affirmance of the preexisting law and declaratory.

But we think the jurisdiction of the Court of Common Pleas is to be sought in the statutes giving that court its general jurisdiction. Soon after the adoption of the constitution, three acts were passed on the same day, July 3d, 1783, constituting the Supreme Judicial Court, the Court of Common Pleas, and Courts of General Sessions of the Peace. These have been variously modified since, but the jurisdiction has been substantially the same. Among them, the jurisdiction of criminal and civil cases was distributed. The Court of Sessions had a limited criminal jurisdiction only.

The Court of Common Pleas was to have cognizance of all civil actions of the value of more than forty shillings, arising within their county, triable by common or statute law, of what nature or species soever the same might be. A recognizance is a debt upon condition, and on default it is forfeited and becomes a debt due. But the remedy is by debt or scire facias, which is a civil action.

As the Sessions have no jurisdiction in matters of debt, the common process of estreat, or certificate into the Court of Common Pleas, which has that jurisdiction, seems to be the proper course, and falls within the general principle, that where a court is constituted with general jurisdiction over a subject or class of subjects, it is vested by necessary implication, if not in terms, with power to grant and use all necessary, usual and proper process, applicable to like cases, to carry that jurisdiction into execution.

This conclusion is greatly strengthened by what we deem to have been the practice, not only ever since the passage of these -acts, but long before, under the provincial acts, containing substantially the same provisions, of which the statutes cited were revisions. 2.

Much of the argument has turned upon another objection to the regularity of these proceedings, arising from the fact, that the justices of the Police Court before whom this recognizance was taken, after certifying and sending up one record of the recognizance, afterwards, on suggestion in writing by the attorney for the Commonwealth, certified and returned a fuller and more extended record, and statement of the facts and circumstances, as they appeared on their minutes.

The Court are of opinion, that this constitutes no valid objection to the regularity of the proceedings, and the record as more fully and particularly stated is properly before the Court. The suggestion under which such fuller record was returned, is immaterial ; had the justices, from any source, ascertained that they had sent an imperfect record, they would have been at liberty, within a reasonable time, to have sent a more perfect one.

It is a well known practice with most courts to keep a docket, or short minutes of the proceedings, from which the competent and responsible officer will make up his records afterwards. If in doing this, in the first instance, material errors or omissions occur, he may, under his responsibility, having the proper data before him, correct them. In Rex v. Barker, 1 East, 186, it was held, that where a magistrate had given out a copy of a conviction, and afterwards, after a certiorari had been issued, he returned a more full, perfect and complete conviction, it was open to no legal objection.

Lord Kenyon stated it as his opinion, that it was not only legal but laudable for the magistrate to do as he had done, and he would have done wrong, if he had acted otherwise. And the Court recognized the practice of magistrates, of taking minutes of their proceedings to serve as memoranda for a more formal statement to be returned to the Sessions.

The two papers produced in the present case are not incou sistent with each other ; the difference is, that one is a fuller statement of the transactions than the other, and being consistent with the truth of the case, which must be taken as true, and returned at the term to which it was returnable, it is to be taken as a valid recognizance. 3. The next question is, whether this recognizance was forfeited by failure of the principal to appear personally, at the Municipal Court, at which he was bound by this recognizance to appear.

The condition of the recognizance is express, not merely to keep the peace and be of good behaviour, but to appear at the Municipal Court at the time named, to answer to such things as should be objected against him, in behalf of the Commonwealth, and to do and receive that which by such court should be enjoined upon him and not depart without license.

As the Municipal Court has jurisdiction of many high crimes and offences, to which a party can only answer by a personal appearance, it follows of course that by force of this condition, the principal was bound to appear personally, if the recognizance was well taken.

This resolves the case into two questions, first, whether the justices of the Police Court, had lawful authority to require and take a recognizance in such a case as that stated in the body of the recognizance ; and second, whether it was taken in a right and proper form, that is, whether they had power to bind the principal to appear and answer, as well as to keep the peace and be of good behaviour. By St. 1821, c. 109, § 3, the justices of the Police Court are to have all the powers and perform all the duties of justices 0f the peace.

The general powers of justices of the peace in criminal cases are set forth in St. 1783, c. 51, the provisions of which are mainly revisions of former acts, and in affirmance of the common law.

They are, among other things, to cause to be stayed and arrested all affrayers, rioters, disturbers and breakers of the peace, and bind them by recognizance to appear at the next Supreme Judicial Court or Court of General Sessions of the Peace, (for which the Municipal Court was afterwards substituted in the town of Boston, St. 179,9, c. 81,) and also to require such person to find sureties for keeping the peace and being of good behaviour, until the sitting of the court. They are also to require sureties for the good behaviour, of dangerous and disorderly persons.

This last provision is substantially like the provision of 34 Edw. 3, c. 1, (4 Bl. Comm. 256,) authorizing justices “ to bind to the good behaviour all them that be not of good fame,” language somewhat broader and more indefinite than that of our statute. And so it has been considered here. 5 Dane’s Abr. 301.

The only doubt which could arise, on the first branch of the authority, to stay all affrayers &c., is whether it is confined to those who are complained of and charged as being actually guilty or suspected to have been guilty of affrays, riots, or disturbances or breach of the peace, or whether it can reasonably be held to extend to those who are complained of as manifesting a preparation or disposition, or having an intention to commit any of these offences.

These provisions being in affirmance of the former law, and the general policy of the law, in requiring sureties of the peace and good behaviour, being rather for the prevention than the punishment of offences, where words in a statute are doubtful, the construction ought to be such as seems most consistent with that object. The later statute, that of 1794, c. 26, seems more explicit to this point.

By this act justices of the peace are authorized to cause to be stayed all affrayers, rioters, &c., or such others as may utter any menaces or threatening speeches, and upon view, confession or other legal conviction of any such offence, shall require of the offender to find sureties for his keeping the peace and being of good behaviour, and for want thereof to commit to prison. The Revised Statutes have been passed since this recognizance was taken, and therefore are only to be looked to for a rule upon this subject so far as they are declaratory and in explanation of the preexisting law.

In this particular they are explicit, and authorize the binding to keep the peace where it shall appear that there is just cause to fear, that any such offence may be committed, that is, an offence against the person or property of another. Revised Stat. c. 134, § 3.

We are strongly inclined to the opinion, that by the first clause of St. 1783, c. 51, justices of the peace had power to bind over to keep the peace those who are complained of as having a present intent to commit a breach of the peace, as well as those who are charged with having committed such an offence ; but whether it be so or not, we are all of opinion, that under the latter clause authorizing them to require sureties for the good behaviour of dangerous and disorderly persons, they might bind over upon a complaint setting forth, as in the present case, that the complainant has cause to believe, that the person intends to commit a known and flagrant offence, and so is a dangerous and disorderly person ; and this is proved by a nolo contendere, which is equivalent to an admission of the fact, by the party charged.

As to the second point, whether the recognizance is properly taken, to appear at the Municipal Court and keep the peace &c., we are of opinion that as the law then stood, though now altered, if the justices had power to bind over, they had authority to bind the party to appear at the next session of the Municipal Court, and in the mean time to keep the peace, and be of good behaviour. This subject is much discussed and the earlier authorities cited in Willes v. Bridger, 2 Barn. & Ald. 278.

In that case it was contended, that it was not within the power of justices to bind over to keep the peace for any particular term of time, but that they were authorized to bind over only to the next Court of Sessions. The court' decided, that when a justice of the peace acts under his general authority as a magistrate, and not under a writ of supplicavit, it is in his discretion to bind over for a certain length of time, or to the next sessions, though it was conceded that to bind over to the next sessions was the more' usual and regular course, and most consistent with the ease and security of the subject.

The court, after citing authorities tending to show that justices may bind over for a certain length of time, add, “ although they all say (the text writers) the safer course is to take the security for appearing at the next sessions, and for keeping the peace in the mean time ; thus referring it to the sessions to take a fresh security if articles be exhibited, or to try the party if an indictment be preferred.” In this Commonwealth it seems to have been settled, that where the justice has power to bind over at all, it must be to the next sessions, and in two cases, the recognizances were held void, where the binding over was for a certain time, and not to appear at the next session.

Commonwealth v. Ward, 4 Mass. R. 497; Commonwealth v. Morey, 8 Mass. R. 78. The same result may be drawn from the course of legislation on the subject. By the Revised Statutes, c. 134, § 4, it is provided, that when one is bound to keep the peace, it may be for such a term of time as the magistrate may order, not exceeding six months, but he shall not be bound over to the next court, unless he is also charged with some other offence, for which he ought to be held to answer at such court.

This statute renders general and makes perpetual, a recent act, St. 1833, c. 63, providing that after the 31st of March then next, on a person being brought before a justice of the peace on articles of the peace, the justice should be authorized to require sureties, for a fixed time not exceeding six months ; and after this act went into opera tian the justice was not to bind over to appear at the next court, unless such person should also be guilty, or reasonably suspect ed to be guilty, of an offence demanding the cognizance of said court, in which case the said justice should be authorized as theretofore, in binding over such person, for his appearance at said court, and to require of him sureties of the peace and for his good behaviour in the mean time.

This act recognizes the law to have heretofore been, that when justices did bind over, it was to appear at the next term of the court, and in the mean time to keep the peace and be of good behaviour. The act itself did not extend to this recognizance, even if the complaint of George Reed, on which it was founded, was to be considered as an exhibition of articles of the peace, because it did not go into operation till after this recognizance was taken, and also because by § 3 it is expressly provided that it should not extend' to the county of Suffolk.

Until the revised statute therefore made it general, it had no operation in this county. April 7th. 1837. April 8th. The Court are therefore of opinion, that the justices of the Police Court were authorized to bind over Jones the principal, as a dangerous and disorderly person, upon the grounds stated in the complaint before them and verified by the admission implied in a nolo contendere, and that they were authorized to bind him to appear at the next term of the Municipal Court.

Being so bound to appear and answer, we are of opinion, as well from the terms of the condition of the recognizance, as from the nature of the obligation, and on the authorities and practice, that he was bound to appear personally, and to remain until discharged, and that default of personal appearance was a forfeiture of the recognizance. Rix v. Ridpath, 10 Mod. 152; S. C. Fortescue’s Rep. 358; People v. Stager, 10 Wendell, 431. 4. An objection was taken to the recognizance on the ground of variance, that the scire facias sets out a recognizance by the defendant only, whereas it was given by him and others.

On reference to the recognizance, it appears that the parties were severally bound and therefore it was a several recognizance by each; though as all were joined in one recognizance, they might have been proceeded against jointly. Recognizance adjudged forfeited. A similar judgment was entered upon a scire facias against Perkins, the other surety in the recognizance. At March term 1837, the sureties were heard upon their petition, supported by affidavits, to have the penalty of the recognizance remitted. Aylwin and Gardiner, for the petitioners. Austin, (Attorney-General,) for the Commonwealth. Pütnam J.

By the statute of 1810, c. 80, this Court is authorized to remit either the whole or any part of.the penalty any recognizance, taken or entered into in criminal prosecutians either by principal or sureties, when the forfeiture, breach or non-performance shall be found in this court ; and we are to render judgment for the Commonwealth according to the circumstances of the case and the situation of the party, upon such terms and conditions as shall seem to us to be reasonable and just.

By the statute of 1804, c. 123, § 4, the offence described in the indictment against Jones is punishable by imprisonment in the common jail, not exceeding one year, and by disqualification from holding any office or place of honor, profit or trust under this Commonwealth for five years ; and by the Revised Stat. c. 125, § 7, such offence is punishable by imprisonment in the county jail not more than one year, or by fine not exceeding 500 dollars, and by incapacity of balding or of being elected or appointed to any place of honor, profit or trust under the constitution or laws of this Commonwealth for the term of five years.

Jones did not appear at the Municipal Court according to his recognizance, and upon the pleadings in this case the recognizance has been declared to have been forfeited. And the question now is, whether the penalty in the recognizance shall be remitted in part or in whole, on the petition of the sureties.

It is proved to our satisfaction, that soon after the entering into the recognizance, Jones departed from this Commonwealth and returned to North Carolina, where he belonged, and there was no evidence produced that he was guilty of any breach of the peace of this Commonwealth after he entered into the recognizance. The challenge was accepted on the day before the date of the recognizance, as appears from the indictment.

It has been proved to our satisfaction, that Jones has little or no property, but that he lived in Boston expensively, in a style becoming gentlemen of considerable fortune ; and this circumstance has been urged by the sureties (who were ignorant of his pecuniary embarrassments and want of property) as a reason why they should be relieved; but to that circumstance we give little if any weight. He was arrested as a dangerous individual, who was justly suspected of having a design to violate the law against duel-ling- The design of the recognizance was twofold.

The first and greatest object was, undoubtedly, to preserve the peace of the Commonwealth. In that respect it was to be regarded as a peace recognizance. The second was, that Jones should appear at the Municipal Court, to answer to any matters and things which should be objected against him in behalf of the Commonwealth. In regard to the first object, it does not appear that he violated his recognizance. There has been no evidence that he committed any breach of the peace of the Commonwealth after he gave his obligation to keep the peace here.

We do not think, under the circumstances, that the amount of the penal sum was too large. Taking into consideration the rank and mode of living, and the associates and connexions of Jones, it seems to us that the police justices did not demand excessive bail. The intent was to preserve the peace, and to prevent the commission of a great offence in this State ; and if we had evidence that a duel had been fought in the Commonwealth, in violation of the condition of the recognizance, and that Jones immediately afterwards absconded, we should not feel inclined to interfere on behalf of his sureties.

We are not judicially to take notice of any thing which public rumor or report states to have taken place between Jones and Hooper in another State, for the peace of this Commonwealth was not violated by any thing which was done without our jurisdiction. The legislature have not made it an indictable offence to go from any part or place in this Commonwealth towards another place or State without this jurisdiction, with intent to fight a duel. If such a provision had existed, and the recognizance had been violated in that respect, we should not feel at liberty to interfere.

But we think it reasonable and just, to take into consideration the fact, that so far as the recognizance related to the keeping of the peace of this Commonwealth, there has been no forfeiture. The breach consisted in Jones’s not appearing to meet the charges which might be alleged against him, of a criminal character, at. the then next Municipal Court. He has violated that engagement, and his sureties must answer for his default. It has been strenuously argued for them, that they supposed this was a mere peace recognizance. If it were so, it would make no difference.

They were bound to know the law touching their undertaking. We think they are bound, under the circumstances, to answer just as if a separate recognizance had been given for Jones’s appearance to answer for the offence of accepting a challenge to fight a duel. It is no excuse that it was not proved that they had. knowledge of the particular charge.

They knew that he was under arrest as a dangerous man, regardless of human life, and when they undertook that their principal should appear to answer to all such matters and things as should be objected, they must be responsible surely for all such matters and things as had any relation to or connexion with the duel, which it was feared would take place. We cannot permit sureties to come into court, under these circumstances, and defend themselves on the ground of their misconception of the extent of their legal liability.

The case, we think, is reasonably to be regarded just as it would be if the recognizance had been for the appearance of their principal to answer to the offence of accepting a challenge in this Commonwealth to fight a duel. The law regards that, as a great crime, and punishes it with severity. We are satisfied that the penalty should be reduced to a sum, which, under the circumstances, it would have been reasonable to have required of the principal, to answer for that offence. And we all think that $ 1000 would have been a reasonable penalty in such a recognizance.

The Court is to be governed in such cases as are now under consideration, by a sound legal discretion, having regard to the declared will of the legislature. There are very few offences in the statute book which are punished by disqualification from all offices of trust, and the. Court, upon conviction, would have had no discretionary power to inflict or omit that punishment. It is positively required. We know not judicially whether or not the government would have been able to prove the alleged offence; but we do know judicially, that Jones did not appear to take his trial.

And we do not perceive any good reason why we should remit any part of the sum, which would have been reasonably required in a recognizance to answer for the particular offence for which the principal stands indicted. The opinion of the Court is, that judgment shall be rendered for the Commonwealth in the sum of $ 1000, and that the rest of the penalty be remitted.