State's Treasurer v. Seaver , 7 Vt. 480 ( 1835 )

Th.e opinion of the court was delivered by

Collamer, J.

— A recognizance is an incident and attendant on a suit or prosecution, taken to secure and enforce some duty, previously existing. The duty must have existed by Jaw, and if the dutyjs created by the recognizance, or, in other words, if the recognizance requires more than the law, it is void.

By the statute of 1828 on exceptions being taken and allowed to questions arising on jury trial in a criminal case, the county court are not to render judgment, but the cause is “ to pass to the supreme court for final decision,” and the supreme court are to render judgment and cause execution thereof, or by said court the cause may be remanded to the county court, if necessary, for a new trial. The record and the whole papers pass from the county court where exceptions are allowed, and no cause remains in that court. No scire facias could issue from that court on any record of the cause then, nor could that court any more require the prisoners attendance or appearance before that court. It had become the duty of the prisoner to appear before the supreme court. This recognizance then |in requiring the appearance before the county court required what was not then a legal duty of the prisoner, and attempted an incident to the records of a court which had no files or records of such a case as then an existing cause in that court-

It is urged that this recognizance is taken agreeable to the statute of 1824. By the statute of 1797 bond was to be taken for appearance to the supreme or county court as the case might require; as each court had their criminal jurisdiction. By the statute of 1824 the recognizance was for appearance to the county court only, as that court only had then any criminal jurisdiction. By the statute of 1828, as already shown, jurisdiction was again given to the supreme court. By this the game state of circumstances arose as required the bond to be taken as by the statute of 1797 and to that should it conform.

If the recognizance was not good when taken no subsequent contingency would render it good. Hence the subsequent result that the supreme court granted a new trial and remanded the case to the county court for trial could not effect this recognizance, previously taken. Should a justice of the peace recognize a criminal •to appear at the supreme court instead of the county court, would it not be void ? And if void, it would not be revived and set up by the happening of the subsequent contingency of the case going •to the supreme court on exceptions.

As to the second section of the statute of 1828 it obviously relates entirely to recognizances taken for appearances at the county •court in .the first instance, and legal when taken and providing they shall not be discharged by subsequent continuances or by the cause passing to the supreme court. This does not relate to a bond illegal in its inception.

Judgment affirmed.