recognizance

By the recognizance the principal is, in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing, not that he is, in point of fact, in this country at least, subjected or can be subjected by them to constant imprisonment; but he is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court, and, to the extent necessary to accomplish this, may restrain him of his liberty.

An obligation of record, 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 Bl. Comm. 341; 53 111. 436; 68 111. App. 203. The liability of bail above in civil cases, and of the bail in all cases in criminal matters, 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 Bl. Comm. 297.

An obligation of record, 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 matters, must be evidenced by a recognizance, as the sheriff has no power to discharge upon a bail-bond being given to him in these 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, being 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 recognizances are generally taken by the court; Treasurer of Vermont v. Rolfe, 15 Vt. 9; State v. Montgomery, 7 Blackf. (Tnd.) 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 eiiminal cases the judges of the various courts of criminal jurisdiction and justices of the peace may take recognizances; State v. Dawson, 6 Ohio, 231; 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 Ala. 67G; but in case of capital crimes the power is restricted usually to the court of supreme jurisdiction. 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.) Gil. In form it is a short memorandum on the record, made by the court, judge, or magistrate having 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 jurisdiction of the offence charged, in all cases; People v. Van Kps, 4 Wend. (N. Y.) 387; Treasurer of Vermont v. Merrill, 14 Vt 64. Discharge and excuse under. A surrender ot the defendant at any time anterior to a fixed period after the sheriff’s return of non esi to a ca. sa. f or taking the defendant on a ca. 8a.; Bryan v. Simonton, 8 N. C. 51; Smith v. Rosecrantz, 6 Johns. (N. Y.) 97; discharges the bail (see IfixiNO Bail,); Arch. Cr. P. 184; as does the death of the defendant before the return of non est; Bish. Cr. 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; Loflin 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; Mc Causland v. Waller, 1 Harr. & J. (Md.) 156; Trumbull v. Healy, 21 Wend. (N. Y.) 670; Payson v. Payson, 1 Mass. 292; Mc Glensey v. Mc Lear, 1 Harr. (Del.) 466; and, of course, performance of the conditions 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 Binu. (Pa.) 332; Strang v. Barber, 1 Johns. Cas. (N. Y.) 329; Lockwood v. Jones, 7 Conn. 439. A culprit giving a recognizance 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. (Aid.) 154; State v. Carr, 4 la. 289; State v. Stout, 11 N. J. L. 124; Com. v. M’Neill, 19 Pick. (Mass.) 127; or by suit, in some cases; Matthews v. Cook, 13 Wend. (N. Y.) 33; Mix v. Page, 14 Conn. 329. A surety on a recognizance 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 recognizance 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, 24 111. App. 72. See Bail; Suretyship; Subrogation.

2 An obligation of record, entered into before a court of i-ecord or a magistrate duly authorized, with condition to do some pa,rti Qular act; as, to appear at court, to keep the peace, to pay a debt.' Is commonly applied to all forms of security for the appearance of the accused in criminal proceedings, whether in the form of a common-law recognizance or of a common bond; and so of appeals from probate courts. "Bond" is not unfrequently used as a general term, including " recognizance,'' which is but one kind of a bond. The difference in some States is now largely one of form; and the terms are often interchanged.* In most respects a recognizance is like any other bond; the difference being chiefly that a "bond "is the creation of a fresh debt or obligation de novo; a recognizance is an acknowledgment of a former debt upon record. The cognizor (or conusor), the person who enters into it, acknowledges to owe the oognizee, the party to whom it is given (perhaps the commonwealth or government), a specified sum of money, with the condition to be void on performance of the thing stipulated. This, being either certified or taken by the officer of a court, is witnessed only by the record of that court, and not by the party's seal; so that it is not in strict propriety a deed, though the effects of it are greater than a common obligation, being allowed a. priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record.^ The provision that the cognizor shall not depart without leave of court has often been held to be distinct from those which bind him to answer the speci- I Carver v. Astor, 4 Pet.-*83 (1830), Story, J.; Sabariego V. Maverick, 124 0. S. 283 (1888), cases, Matthews, J. As to variance in recitals, see 24 Cent. Law J. 66 (1887)

— Irish Law Times. " Ee-k Sg'-nl-zans, or -k Sn'. In legal usage the verb is re-kog'-nize. fled charge, or all' matters which may be alleged against him, or to abide the final order of the court. > Recognize. To bind by a recognizance: as, to recognize a witness for his appearance.^ Recognizee. He in whose favor a recognizance is executed; a cognizee. Recognizor; recognitor. He who executes a recognizance; a cognizor. Recognizances are also required by courts as security for the due administration of trust property. A person accused of crime may be "discharged upon his own recognizance " when the evidence against him is slight and the time for trial distant, A recognizance is a matter of record, in the nature of a judgment. The process upon it, whether a scire facias or a summons, is intended to carry it into execution, and is judicial; it is an original suit in the sense that the defendant may plead to it. When final judgment is given, the whole of the proceedings constitutes one record. 3 A recognizance is a debt of record, in the nature of a conditional judgment, which a recorded default makes absolute. It is subject onl3' to such matters of legal avoidance as may be shown by the^ plea, or to such'matters of relief as may induce the court to remit or mitigate the forfeiture. The object of a scire facias is to notify the cognizor to appear and show cause why execution should not issue for the sum acknowledged.* See Bail, 2; Onus, Bxoneretm-. RECOMMENDATION". See Letter, 3, page 613.

1. A recognition, the verdict of an assize. 2. An acknowledgment of a past debt, made upon record, with or without sureties [or by sureties for a defendant's appearance], made to be void on the happening of a condition. It existed at common law, and by the Statutes Merchant and Staple.

An obligation of record, which a man enters into before some court of record, or magistrate duly authorized, binding himself under a penalty to do some particular act, — as to appear at the assises, to keep the peace, to pay a debt, or the like. Recognizee: the person in whose favor a recognizance is made. Recognizor: one who executes a recognizance. A recognizance is, in some respects, very similar to a bond. There are, however, important differences. A bond is the creation of a new debt; while a previously due. A recognizance is entered upon the records of some court, or on the magistrate's docket, and appears by reference to the record, instead of being made by the seal of the pai-ty bound, and delivered to the one benefited. In American practice, recognizances are chiefly used to secure the attendance of the party at court to answer some charge or suit against him. A person who might otherwise be kept in custody until the time for trial of the cause is allowed to go at large in the mean time, upon giving a recognizance, with sureties, that he will appear at the court designated. This is the same thing, in substance, as putting in bail, the different expressions being in use in various states, without very substantial difference in meaning, though the forms of the instruments may be unlike. When a person is arrested on a criminal charge, which appears to the magistrate to be trivial or slightly supported by evidence, sureties for his appearance are dispensed with, and he signs the recognizance alone. In these cases, he is said to be " discharged on his own recognizance." Hence the expression has come to indicate that the case is not a strong one against the accused. Recognizances are of two sorts: At common law, which is an obligation, acknowledged and enrolled in a court of law, with a condition to be void on the performance of a thing stipulated; it differs from a bond, in that the latter is a creation of a new debt, while a recognizance is an acknowledgment upon record of a former debt, owing to our sovereign lady the queen. And by statute, which are the statute-merchant, created by 11 Edw. I., and the statutestaple, created by 27 Edw. III. st. 2; but these are both obsolete. Wharton. At common law, a recognizance was defined as " an obligation of record, founded upon an acknowledgment of an. existing indebtedness by the person to be bound," and was sometliing more than a "contract." But under the statutes of Kansas a recognizance may be held and treated as a contract. State V. Weatherwax, 12 Kan. 463.

contracts, is an obligation of record, entered into before a court or officer duly authorised for that purpose, with a eondition to do some act required by law, which is therein specified. 2 Bl. Com. 341; Bro. Ab. h. t.; Dick. Just. h. t.; 1 Chit. Cr. Law, 90. Recognizances relate either to criminal or civil matters. 1. Recognizances in criminal cases, 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 behaviour. Witnesses are also required to be bound in a recognizance to testify. 2. In civil cases recognizances are entered into by bail, conditioned that they will pay the debt, interest and costs recovered by the plaintiff under certain contingencies. There are also cases where recognizances are entered into under the authority and requirements of statutes.—As to the form.. The party need not sign it, the court, judge or magistrate having authority to take the same, makes a short memorandum on the record which is sufficient. 2 Binn. R. 431; rally, Com. Dig. Forcible Entry, D 27); Ib. Obligation, (K); Whart. igo h. t.; Vin. Ab. h.t.; Rolle’s Ab. h. t.; 2 Wash. C. C. Rep. 422; Ib. 29; 2 Yeates, R. 437; 1 Binn. R. 98 note; 1 Serg. & Rawle, 328; 3 Yeates, R. 93; Burn. Just. h. t.; Vin. Ab. h. t.; 2 Sell. Pract. 45.