RECOGNIZANCE. An obligation of record, entered into before a court or officer duly authorized for that purpose, with a con dition to do some act required by law, which is therein specified. 2 Blackstone, Comm. 341.
Tbe liability of bail above in civil cases, and of the bail in al;,. wises in criminal matters, must be evidenced hy a recognizance, as the sheriff has no power to discharge upon a bail-boad beiag given to him in these oases. See 4 Shorewood, Blackst. Comm. 297.
The bail-hood may be considered as furnishing tbe sheriff with an excuse for not complying strictly with the requirements of the writ; its work is per formed in securing the appearance at court of the defendant. The object of a recognizance is to secure the presence of the defendant to perform or suffer the judgment of tlae court. In some of the United States, however, this distinction is not ob served, hut bail ia the form of a hail-hond is filed with the officer, which is at once bail below and above, being oonditioned that the party shall ap pear and answer to the plaintiff in the suit, and abide the judgment of the court.
2. In civil cases they are entered into by bail, conditioned that they will pay the debt, interest, and costs recovered by tbe plaintiff under certain contingencies, and for other purposes under statutes.
In criminal cases they are either that the party shall appear before the proper court to answer to such charges as are or shall be made against him, that he shall keep the peace or be of good behavior. The presence of witnesses may also be secured in the same manner. 6 Hill, N. Y. 506.
Who may take. In civil cases recognizances are generally taken by the court, 1 N. Chipm. Vt. 224 ; 15 Vt. 9 ; 7 Blackf. Ind. 221, or by some judge of the court in chambers, though other magistrates may be authorized therefor by statute, and are in many of the states.
6 Wheat. Penn. 359 ; 4 Humphr. Tenn. 213. See 2 Dev. No. C. 555; 3 Gratt. Va. 82.
3. In criminal cases the judges of the vari ous courts of criminal jurisdiction, justices of the peace may take recognizance°, 6 Ohio, 251 ; 15 id. 579 ; 16 Mass. 423 ; 19 Pick. Mass. 127 ; 14 Conn. 206 ; 6 Blackf. Ind. 284, 315 ; 18 Miss. 626 ; 26 Ala. sr. s. 81 ; 3 Mich. 42 ;
see 2 Curt. C. C. 41 ; the sheriff, in some cases, 5 Ark. 265 ; 11 Ala. 676; but in case of capi tal crimes the power is restricted usually to the court of supreme jurisdiction. See Ben, 6.
In cases where a magistrate has the powsr to take recognizances it is his duty to de se, exercising a judicial discretion, however. 7 Blackf. Ind. 611. In form it is a short me morandum on the record, made by the court, judge, or magistrate having authority, which need net be signed by the party to be found.
1 Chitty, Crirn. Law, 90 ; 2 Binn. Penn. 431; 5 Serg. & R. Penn. 147 ; 9 Mass. 520 ; 4 Vt. 488 ; 7 id. 529 ; 16 id. 240 ; 1 Dan. Ky. 523; 2 A. K. Marsh. Ky. 131 ; 6 Ala. 465 ; 2 Wash. C. C. 422 ; 6 Yerg. Tenn. 354. See 5 Mo. 557. It is to be returned to the court having juris diction of the offence charged, in all cases.
7 Leigh, Va. 371 ; 9 Conn. 350 ; 4 Wend. N. Y. 387 ; 14 Vt. 64. See 27 Me. 179.
4. Discharge and excuse under. A sur render of the defendant at any time anterior to a fixed period after the sheriff's return of non est to a ca sa., or taking the defendant on a ca sa., 1 Hawks, No. C. 51 ; 6 Johns. N. Y. 97, discharges the bail, see FIxiNo BAIL, as does the death of the defendant before the return of non est, 1 Nott & M'C. So. C. 251 ; 3 Conn. 84, or EL loss of custody and control by act of government or of law without fault of the bail prier to being fixed, 3 Dev. No. C. 157 ; 18 Johns. N. Y. 335 ; 5 Meth. Mass. 380 ; 2 Ga. 33; 14 Gratt. Va. 698 ; see 8 Mass. 264 ; 6 Cow. N. Y. 599 ; 5 Sneed, Tenn. 623 ; 2 Wash. C. C. 464, including irapeachment, hut not voluntary enlistment, 11 Mass. 146, 234 ; 13 id. 93, or long delay in proceeding against bail, 2 Mass. 485 ; 8 id. 490 ; 1 Root, Conn. 428 ; see 4 Johns. N. Y. 478, or a discharge of the principal under the bank rupt or insolvent laws of the state, 2 Bail. So. C. 492 ; 1 Harr. & J. Md. 101, 156 ; 2 Johns. Cas. N. Y. 403 ; 21 Wend. N. Y. 670 ; 1 Mass. 292; 2 id. 481 ; 1 Harr. Del, 367, 466 : 5 id. 160 ; 1 McLean, C. C. 226 ; 1 Gill, Md. 259; and see, also, 2 Penn. St. 492, and, of course, performance of the conditions of the recognizance by the defendant, dis charge the bail. And see BAIL-BOND ; FIXING