RECOGNIZANCE. An obligation of rec ord, entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law which is therein specified. 2 Bla. Com. 341. See U. S. v. Insley, 49 Fed. 776.
The liability of bail above in civil cases, and of the bail in all cases in criminal mat ters, must be evidenced by a recognizance, as the sheriff has no power to discharge upon a bail-bond being given to him in these cases. See 4 Bla. Com. 297.
The object of a recognizance is to secure the presence of the defendant to perform or suffer the judgment of the court. In some of the United States, however, this distinction is not observed, but bail in the form of a bail-bond is filed with the officer, which is at once bail below and above, be ing conditioned that the party shall appear and answer to the plaintiff in the suit, and abide the judgment of the court.
In civil cases they are entered into by bail, conditioned that they will pay the debt, interest, and costs recovered by the 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 ; People v. Rundle, 6 Hill (N. Y.) 506.
Who may take. In civil cases recogni zances are generally taken by the court; Treasurer of Vermont v. Rolfe, 15 Vt. 9; State v. Montgomery, 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; Frost v. Roatch, 6 Whart. (Pa.) 359; State v. Austin, 4 Humphr. (Tenn.) 213.
In criminal cases the judges of the various courts of criminal jurisdiction and justices of the peace may take recognizances; State v. Dawson, 6 Ohio, 251; Com. v. M'Neill, 19 Pick. (Mass.) 127; Goodwin v. Dodge, 14 Conn. 206; People v. Rutan, 3 Mich. 42 ; the sheriff, in some cases ; Gray v. State, 5 Ark. 265; Shreeve v. State, 11 Ma. 676; but in case of capital crimes the power is re stricted usually to the court of supreme ju risdiction. See BAIL.
In cases where a magistrate has the power to take recognizances it is his duty to do so, exercising a judicial discretion, however; State v. Best, 7 Blackf. (Ind.) 611. In form it is a short memorandum on the record, made by the court, judge, or magistrate hav ing authority, which need not be signed by the party to be found ; Kean v. Franklin, 5 S. & R. (Pa;) 147; Com. v. Downey, 9 Mass. 520; Grigsby 'v. State, 6 Yerg. (Tenn.) 354. It is to be returned to the court having ju risdiction of the offence charged, in all cases ; People v. Van Eps, 4 Wend. (N. Y.) 387;
Treasurer of Vermont v. Merrill, 14 Vt. 64.
Discharge and excuse under. A surrender 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.; Bryan v. Simonton, 8 N. C. 51; Smith v. Rosecrantz, 6 Johns. (N. Y.) 97; discharges the bail (see FIXING BAIL);. Arch. Cr. P. 184; as does the death of the defend ant before the return of non est; Bish. Cr. Proc. 264; Antonio v. Arthur, 1 N. & M'C. (S. C.) 251; Parker v. Bidwell, 3 Conn. 84; or a loss of custody and control by act of government or of law without fault of the bail prior to being fixed; Way v. Wright, 5 Mete. (Mass.) 380; Caldwell v. Com., 14 Gratt. (Va.) 698 ; including imprisonment for life or for a long term of years in another state; Loftin v. Fowler, 18 Johns. (N. Y.) 335; but not voluntary enlistment; Herrick v. Richardson, 11 Mass. 234; or long delay in proceeding against bail; Champion v. Noyes, 2 Mass. 485; Howard v. Miller, 1 Root (Conn.) 428; or a discharge of the principal under the bankrupt or insolvent laws of the state; McCausland v. Waller, 1 Harr. & J. (Md.) 156; Trumbull v. Healy, 21 Wend. (N. Y.) 670; Payson v. Payson, 1 Mass. 292; McGlensey v. McLear, 1 Harr. (Del.) 466; and, of course, performance of the condi tions of the recognizance by the defendant, discharges the bail. And see BAIL-BOND; FIXING BAIL.
The formal mode of noting a discharge is by entering an exoneration; Boggs v. Teackle, 5 Binn. (Pa.) 332; Strang v. Bar her, 1 Johns. Cas. (N. Y.) 329; Lockwood v. Jones, 7 Conn. 439. A culprit giving a re cognizance to appear to an indictment, and not to depart from the court without leave, is not discharged from his obligation, nor is his surety thereon, by the quashing of the indictment; State v. Hancock, 54 N. J. L. 393, 24 Atl. 726.
The remedy upon a recognizance is by means of a scire facias against the bail; Cappeau v. Middleton, 1 Harr. & G. (Md.) 154; State v. Carr, 4 Ia. 289; State v. Stout, 11 N. J. L. 124; Com. v. M'Neill, 19 Pick. (Mass.) 127; or by suit, in some cases; Mat thews v. Cook, 13 Wend. (N. Y.) 33; Mix v. Page, 14 Conn. 329. A surety on a recogni zance may defend by showing the invalidity of the indictment against his principal; Mc Daniel v. Campbell, 78 Ga. 188; contra, Lee v. State, 25 Tex. App. 331, 8 S. W. 277.
Without notice to the principal, a recog nizance cannot be legally amended against objection of the sureties: Hand v. State, 28 Tex. App. 28, 11 S. W. 679.
It is indispensable to a legal default and declaration of forfeiture of a recognizance, that the principal in the recognizance should have been regularly called, and, upon such call, failed to appear ; Brown v. People, 24 Ill. App. 72. See BAIL; SURETYSHIP; SUBRO GATION.