Todd v. State , 1 Mo. 566 ( 1825 )

Tompkins, J.,

.delivered the opinion of the Court.

On motion of the Circuit Attorney, a sci. fa. was -awarded against Abraham Mc-Kinney, David Todd, and John Means, to show cause why a recognizance should not he forfeited, &c. The facts are, that on the 6th of Dec., 1820, the plaintitfs in error together with McKinney, entered into a-recognizance, before one of the then Judges of the Supreme Court, for the appearance of a slave, of said McKinney, at the then next term of the Washington Circuit Court) to answer an indictment of larceny; and that they failed in the condition of their recognizance): hut no forfeiture of the recognizance is charged in the Circuit Court. The defendants pleaded nul tiel record, on which plea, issue was joined. The finding of the Court is in these words: “that the said Todd and Means did undertake-and promise, as alledged in the sci. fa.” The first objection taken to the recovery in this cause is, that the Judge, by whom the recognizance was taken, had no authority of law for talcing 'it. First. Because the 5th article of the Constitution gives no authority to the individual Judges of the Supreme Court, except as “conservators of the peace;” and as such,- they have no authority to bail for felony, and cites several authorities to that effect. And, second, that at the time, there was no statutory authority given.

It is the opinion of the Court, that the Judge-of the Supreme Court had no authority to take the recognizance in this case; the 'grant of power in the Constitu-"tion being insufficient. There was three other objections taken, on which the Court* does not think fit to give any opinion.

The judgment of the Circuit Court is reversed.