State v. Burnham , 44 Me. 278 ( 1857 )

Appleton, J.

The act of 1854, ch. 60, incorporating the county of Androscoggin, was to take effect March 31, 1854. By s. 12, the legal voters were to decide which of three towns should be the shire town, and the governor being certified of the fact, was to make proclamation accordingly. The vote of the people determined that Auburn should be the shire town, and proclamation to that effect was made by the governor, and by these proceedings Auburn became the shire town, before January, 1855. It was further provided by the same section, that “ until the shire town shall be permanently designated as aforesaid, Lewiston shall be the shire town, and the courts shall be there held until suitable buildings are prepared.” Auburn having been designated the shire town, and arrangements having been made there for the accommodation of the court, the January term of this court, 1855, was commenced at that place, but the buildings for its accommodation not being suitable, in the opinion of the presiding judge, the court was adjourned to Lewiston, where the August term preceding had boon held, and where better accomodations and more suitable buildings were provided.

The recognizance shows that the adjournment was made in pursuance of the authority given by the statute.

The recognizance must be regarded as valid, as “ it can be sufficiently understood from its tenor,” and it was taken by a court having jurisdiction to take the same. R. S., ch. 171, s. 30.

A recognizance is a contract entered into by the recognizors, on certain conditions therein specified. That contract was broken before the institution of this suit. Nothing has occurred since its commencement by which it can be legally defeated.

The requisition by the governor of this state upon that of New Hampshire, by virtue of which the principal defendant, Burnham, was brought from New Hampshire and lodged in jail in Portland, and the new recognizance then taken, were since this action was commenced. This evidence may be properly admissible in a hearing on petition before the court, under the provisions of R. S., ch. 169, s. 17, but it cannot be regarded as a bar to the action. A similar question arose in The People v. Annable, 7 Hill, 33, when in debt on a recognizance, conditioned that the defendant should appear and answer to an indictment found against him, the defendant pleaded that after the forfeiture of the recognizance, and before the commencement of the action, he was arrested upon a bench warrant issued upon the same indictment, and that he thereupon entered into another recognizance to appear and answer, the' condition of which he fully kept and performed, and it was held that the matters stated in the plea constituted no defence. “ In the case of The People v. Bartlett, 3 Hill R., 570, we held,” remarks Nelson, C. J., in The People v. Annable, “ that an imprisonment of the accused in another county, on a criminal charge, until after the day of appearance, excused the default. So in the case of The People v. Sager, 10 Wend. R., 431, it was held that an arrest on a bench warrant upon the same indictment, before the default for appearing, would discharge bail. But there is neither authority nor principle for the position that a subsequent arrest and discharge can work any such consequence.” In the present case the recognizance had become forfeited, and the action of the government, by which the presence of the principal was procured, was rendered necessary by his avoidance.

It is insisted by the act of 1845, ch. 161, which provides that 11 whenever there is a forfeiture of a recognizance in a criminal case, the bail may surrender the principal in court at any time before final judgment, on scire facias, and deliver him to the order of court,” and “ paying all the costs of scire facias, said bail shall be discharged,” that the defendants should be relieved from their contract, because the principal has been in custody since tho commencement of this suit, so that it was out of the power of the bail to surrender him, and because such an act would be simply nugatory, he having been committed to and being in jail. The defendants establish no defence, because they have not paid the costs, nor offered to do so. The case is not therefore brought within the principle of Warren v. Gilman, 11 Cush. R., 15, even if that be applicable, where it was held that sureties on a bail bond are discharged by a commitment of the principal on an alias execution, although a scire facias, commenced after a release of non est inventus upon the first execution, be pending at the time of such commitment, as in that case the costs of the scire facias had been paid.

There are variances between tho writ and the recognizance which have been pointed out, and which, if not amendable, would be fetal. But by R. S., ch. 115, process is not to be abated nor judgment arrested “for any kind of circumstantial error or mistakes, when the person or case may bo rightly understood.” There is no difficulty in understanding the cause of action in the present case, and the writ may be amended upon terms, so as to obviate the objections taken as to variance between the writ and recognizance. State v. Folsom, 26 Maine R., 209.

The plaintiff may amend upon relinquishing costs up to tho time of the amendment, and in that event a default is to be entered, and the defendants may be heard upon a petition for the remission of the penalty, in whole or in part, under R. S., ch. 169, s. 17, if they desire.