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91 Mass. 581

Commonwealth v. Field

Massachusetts Supreme Judicial Court

Decided January 15, 1865

Massachusetts Supreme Judicial Court · decided 1865-01-15

<p>A recognizance is void, as to both principals and sureties, the condition of which is that two persons, against whom an indictment is pending, shall thereafter appear to answer to the same; although it is stated in the earlier part of the recognizance that the two principals “ acknowledged themselves to be severally indebted,” “ each in the sum ” specified, and the sureties “ as sureties for each.”</p> <p>The objection that a recognizance taken in a criminal case is void may, in an action upon it, be taken for the first time at the argument in this court, upon exceptions to the finding of the judge before whom the case was tried, without a jury, that the Commonwealth was entitled to recover.</p>

Decided 1865-01-15

Dewey, J.

¶1The recognizance offered in evidence to support this action does not operate to bind the principal Nickerson, or his surety Field. Separate recognizances were ordered to be taken of the two persons, Nickerson and Smith, for their appearance at May term 1862, to answer to an indictment found against them and Caleb B. Watts. This recognizance, as extended and returned by the commissioner, purports to be a joint obligation of the two principals, Nickerson and Smith, binding both for the personal appearance of both, and the condition could only be saved by the appearance of both persons. Nickerson could only be required to recognize with surety for his own personal appearance, and not also for the appearance of his co-defendant in the same indictment.

¶2A recognizance requiring more than is authorized by law ia invalid. Newcomb v. Worster, 7 Allen, 198. This recognizance, being invalid in this form as to the principal, is also invalid as to the surety.

¶3The objection to the legality of this recognizance, in the form in which it is certified, is open upon this bill of exceptions.

¶4Without expressing any opinion upon other questions raised by the defendant, we think, for the cause already assigned, the exceptions must be sustained.

¶5 Exceptions sustained.

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