State v. Smith
| Decision Date | 01 June 1822 |
| Citation | 2 Me. 62 |
| Parties | THE STATE v. SMITH |
| Court | Maine Supreme Court |
SCIRE FACIAS upon a recognizance entered into before a Justice of the peace. The writ recited that the defendant acknowledged himself indebted in a certain sum, to be levied to the use of the Commonwealth of Massachusetts, if one T. P. should fail personally to appear at the next Circuit Court of Common Pleas to answer to the complaint of one J. A. against him for assault and battery; and alleged that T. P. did not appear at said Court " but made default as appears of record." To which the defendant demurred.
Adjudge the writ insufficient.
Boutelle in support of the demurrer, objected that it did not appear from the recognizance that the Justice had jurisdiction of the matter. It speaks of a complaint for an assault, but it does not appear where it was pending, nor that there was any process before the magistrate. The cause of caption should appear in the recognizance itself. Commonwealth v Downing, 9 Mass. 520. Commonwealth v. Ward, 4 Mass. 497, ib. 641.--Moreover, it does not appear that the recognizance was made matter of record in the Court to which it was returnable. Bridge v. Ford, 7 Mass. 209. 4 Mass. 497. Commonwealth v. Downing, 9 Mass. 520.
Kidder for the State, replied that the writ sufficiently shewed that there was a complaint pending for assault and battery; and in all such cases the statute gave jurisdiction to Justices of the peace, either to bind over, or to punish by fine. Here he bound over by recognizance, which is apparent enough from the writ. Commonwealth v. Loveridge, 11 Mass. 337.
As to the other objection, he adverted to the recital in the writ " as appears of record," which might well be taken to relate to all the proceedings previously set forth.
It is settled law that a recognizance should state the ground on which it is taken, so that it may appear that the magistrate taking it had jurisdiction and authority to demand and receive it. 4 Mass. 641. 7 Mass. 209. 9 Mass. 520. These cases shew that the Court issuing the scire facias must be in possession of the record of the recognizance. In all cases such scire facias must contain an averment of those facts which shew the recognizance to have been legally taken and returned to the Court where the party recognizing is bound to appear, and such proceedings of that Court as form the basis of the suit. In the...
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