FROM COOS CIRCUIT COURT. In this action, which is debt on recognizance, there is a general demurrer. The defendants, in their brief, indicate two objections as grounds of demurrer. (1) That there is no sufficient allegation of the proceedings before the magistrate which resulted in the order to recognize; (2) that the part of the condition alleged to have been broken was never designed to be enforced, and that such breach cannot be the foundation of any action.
It is true, that in almost all cases of recognizance in criminal prosecutions, the most prominent matter has been the securing of the appearance of the party to answer at the term of the higher court, which has jurisdiction of the offence complained of; and that most of the legislation on our statute book relates more particularly to breaches of that part of the condition.
But it is equally true, that recognizances to keep the peace have also been long known.
A recognizance is said to be an obligation of record which a man enters into before some court of record, or magistrate duly authorized, with condition to do some particular act — as, to appear at the assizes, to keep the peace, pay a debt, or the like. Jacobs' Law Dic., art. "Recognizance."
The recognizance, being matter of record, is held to be rather of the nature of a judgment than a contract, and for this reason it is that the most usual proceeding against the conusor for breach of condition is by scire facias, and it is said that an execution may be issued on such scire facias.
In 4 Bl. Com. 253, it is said, — "This recognizance," viz., for keeping the peace, or for good behavior, "if taken by a justice of the peace, must be certified to the next sessions, in pursuance of the statute 3 H. 8, ch. 1; and if the condition of such recognizance be broken by any breach of the peace in the one case, or any misbehavior in the other, the recognizance becomes forfeited or absolute, and being estreated or extracted — taken out from among the other records — the party and his sureties, having now become the king's absolute debtors, are sued for the several sums in which they are respectively bound."
In 1 Hawk. P.C. 258, it is said that "The sessions cannot in *Page 179 any case proceed against the party for a forfeiture of his recognizance either in respect of his not appealing, or breaking the peace; but that the recognizance in such case ought to be removed into some of the king's courts of Westminster hall, who shall proceed by scire facias upon such recognizance, and not by indictment."
In Rex v. Stanley, cited in Bac. Ab., title "Surety of the Peace," H., RYDER, C. J., in discharging a rule to allow cause why the proceedings in scire facias should not be stayed, said, — "But if the recognizance be for keeping the peace as to all the king's subjects, as well as to the person who exhibited the articles, the court will not, in a doubtful case, stay proceedings upon a scire facias;" because the question, whether the breach of the peace by assaulting another person did amount to a forfeiture of the recognizance, may be determined upon the plea of not guilty to the scire facias.
From all this it seems clear that by the English practice it was proper to proceed on scire facias to determine whether the recognizance had been forfeited by matter in pais, so to speak. Whether, after the fact of forfeiture was determined, the record was then estreated into the court of exchequer in order that the debt might be there collected, or whether execution should issue from the court where the forfeiture was found, is not very material. I think it sufficiently appears that by our law, in such case, the proceedings must be had in the court where the record is, and there it can be determined on the proper pleading and a trial by the jury whether or not there has been a forfeiture.
By Gen. Stats., ch. 41, sec. 9, "If any party recognized to appear makes default, the recognizance shall be declared forfeited, and a record of the default and forfeiture made and certified to the county commissioners, who shall cause such proceedings to be had for the recovery of the forfeiture as the interest of the county requires."
By section 11 it is provided that the supreme court may render judgment for the whole amount, or such part thereof as may be thought proper. This provision of the statute applies specially to those cases where the proceedings are had, and the default made, and the forfeiture declared in open court.
I can see no good reason why, in a proceeding in scire facias to determine a forfeiture, the court should not, if the forfeiture is found, proceed to render a judgment, as found by section 11 above cited, and issue execution.
It is quite likely that a forfeiture having been found on an issue to the jury, the court, in order to determine whether judgment should be rendered for the whole amount forfeited, or only a part, might hear evidence as to other breaches of the condition than that particular one on which the forfeiture was found.
The statute provides, chapter 141, section 17, that, in actions brought upon recognizances taken in criminal prosecutions, it shall be sufficient to set forth in the writ the substance of the recognizance, and the time and place at which the same was declared forfeited, without setting forth the complaint or indictment or any subsequent proceedings thereon. This *Page 180 provision evidently applies to those cases under the statute in which, by proceedings in open court, the forfeiture has been declared, and appears to be a statutory provision for simplifying and abridging the proceedings in that particular class of cases, by far the most numerous and most requiring to be abridged.
But I think that in proceedings in which the object is to show that a forfeiture has taken place, we cannot hold that the old practice has been abolished, such as is recognized in State v. Chesley, 4 N.H. 366. It appears to me, therefore, that the declaration in this case ought to show the proceedings before the magistrate so far as is necessary to make it apparent that the recognizance was taken for sufficient cause, and the proceedings regular.
A recognizance being in the nature of a judgment, there is no good reason why, if convenience requires, the action of debt should not be brought, as well as scire facias; and such seems to be the rule recognized by our cases.
A suggestion has been made that by the statute regulating the sale of spirituous liquor — Gen. Stats., ch. 99, sec. 17 — the respondent is to be held to answer at the next trial term of the supreme judicial court in the, county, but that this respondent, instead of being held to answer at the August trial term in Colebrook, was held to answer at the November trial term to be held at Lancaster. But by the statute of July 2, 1873, Laws of 1873, ch. 34, it is enacted that if no grand jury is required to attend at the next trial term, parties and witnesses shall be ordered to recognize to appear at the next term to which a grand jury is required to attend.
It is true that this statute is entitled "An act in amendment of sec. 6, ch. 240, of the Revised Statutes, relating to recognizance in criminal cases;" but it is certainly broad enough in its terms to embrace proceedings under ch. 99, Gen. Stats., and, I think, must be held to do so.