[468]
By the Court,
Sutherland, J.
It is contended, in the first place, in support of the demurrer, that two justices of the peace have no authority or jurisdiction to let to bail, under the circumstances stated in the declaration, or to take such a recognizance as the one declared on ; and the act of April 13th, 1813, 2 R. L. 506, § 1, 2, 3, declaring the powers and duties of justices of the peace is referred to, as comprising the only authority which justices of the peace possess to bail in any case. The public prosecutor concedes that the authority is not conferred by that or any other statute ; but he contends, that at common law, any member of the court of sessions has a right to bail, after indictment, any person charged with a crime which the court has jurisdiction to try ; and that such common law power has not been taken away or restrained by statute.
Hawkins, in his Pleas of the Crown, p. 103, ed. oj 1739, in considering the question how far bail is grantable by justices of the peace, by construction of the statutes and commission which gave them a jurisdiction over certain crimes, says, that wherever justices of the peace have jurisdiction of a crime, they may bail the person indicted before them of such crime, upon such circumstances as other courts may bail; and that upon this ground it seems clear that any two justices, whereof one is of the quorum, may, of common right, bail persons indicted before the sessions of justices of the peace, for that any two such justices may hear and determine the indictment. It has also, he says, been holden, that any one justice has the like power, because every such justice being a judge of the court which is to determine the offence, seems consequently to have a discretionary power of judging whether it be bailable, and of admitting the party to bail; and he refers to the statute of 1 Rich. 3, ch. 3, which gives one justice of the peace power to bail persons arrested for felony, in like form as if such person had been indicted at sessions, as clearly implying that if such persons had been indicted at sessions, they might have been bailed by any one justice ; and he remarks that the various statutes relating to the power of justices of the peace in granting bail, have not restricted the power which they previously possessed in relation to persons, indicted of bailable [469] crimes, under the degree of felony. In 1 Bacon’s Abr. tit. Bail in Criminal Cases, B. 350, the law upon this point is thus stated: “ It seems clear that wherever justices of the peace have power to hear and determine any offence which is baila- . ble, any one of such justices has power to bail any person indicted at the sessions for such offence, because every such justice is a judge of the court which is to try itand he cites Hawkins & Hale’s P. C. 105 ; vide etiam Comyn’s Dig. tit. Bail, F. 4; 1 Chitty’s C. L. 85 to 99. It would seem from these authorities, therefore, that independently of any express statutory provisions, justices of the peace, or any one justice, may bail persons indicted before the sessions of a bailable of-fence, upon the general principle that every member of a court which has authority to try an offence, can bail the offender. But he cannot bail until after indictment, as he has not jurisdiction, or is not a judge in the case, until it comes regularly before him by indictment, except where the offence tends directly to a breach of the peace ; in which case the power of letting to bail seems to belong to the justice as conservator of the peace. The act organizing and declaring the powers of the courts of general sessions of the peace, 2 R. L. 150, enacts that the justices of the peace of each of the counties of this state, (the city and county of New-York excepted,) or any three or more of them, of whom a judge of the court of common pleas shall always be one, shall have power to hold the court of general sessions of the peace in the said counties respectively. The general sessions have power to try all offences not punishable with death, or imprisonment in the state prison for life. The offence charged in this case was a misdemeanor, and was of course within the jurisdiction of the general sessions.
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[468]
By the Court,
Sutherland, J.
It is contended, in the first place, in support of the demurrer, that two justices of the peace have no authority or jurisdiction to let to bail, under the circumstances stated in the declaration, or to take such a recognizance as the one declared on ; and the act of April 13th, 1813, 2 R. L. 506, § 1, 2, 3, declaring the powers and duties of justices of the peace is referred to, as comprising the only authority which justices of the peace possess to bail in any case. The public prosecutor concedes that the authority is not conferred by that or any other statute ; but he contends, that at common law, any member of the court of sessions has a right to bail, after indictment, any person charged with a crime which the court has jurisdiction to try ; and that such common law power has not been taken away or restrained by statute.
Hawkins, in his Pleas of the Crown, p. 103, ed. oj 1739, in considering the question how far bail is grantable by justices of the peace, by construction of the statutes and commission which gave them a jurisdiction over certain crimes, says, that wherever justices of the peace have jurisdiction of a crime, they may bail the person indicted before them of such crime, upon such circumstances as other courts may bail; and that upon this ground it seems clear that any two justices, whereof one is of the quorum, may, of common right, bail persons indicted before the sessions of justices of the peace, for that any two such justices may hear and determine the indictment. It has also, he says, been holden, that any one justice has the like power, because every such justice being a judge of the court which is to determine the offence, seems consequently to have a discretionary power of judging whether it be bailable, and of admitting the party to bail; and he refers to the statute of 1 Rich. 3, ch. 3, which gives one justice of the peace power to bail persons arrested for felony, in like form as if such person had been indicted at sessions, as clearly implying that if such persons had been indicted at sessions, they might have been bailed by any one justice ; and he remarks that the various statutes relating to the power of justices of the peace in granting bail, have not restricted the power which they previously possessed in relation to persons, indicted of bailable [469] crimes, under the degree of felony. In 1 Bacon’s Abr. tit. Bail in Criminal Cases, B. 350, the law upon this point is thus stated: “ It seems clear that wherever justices of the peace have power to hear and determine any offence which is baila- . ble, any one of such justices has power to bail any person indicted at the sessions for such offence, because every such justice is a judge of the court which is to try itand he cites Hawkins & Hale’s P. C. 105 ; vide etiam Comyn’s Dig. tit. Bail, F. 4; 1 Chitty’s C. L. 85 to 99. It would seem from these authorities, therefore, that independently of any express statutory provisions, justices of the peace, or any one justice, may bail persons indicted before the sessions of a bailable of-fence, upon the general principle that every member of a court which has authority to try an offence, can bail the offender. But he cannot bail until after indictment, as he has not jurisdiction, or is not a judge in the case, until it comes regularly before him by indictment, except where the offence tends directly to a breach of the peace ; in which case the power of letting to bail seems to belong to the justice as conservator of the peace. The act organizing and declaring the powers of the courts of general sessions of the peace, 2 R. L. 150, enacts that the justices of the peace of each of the counties of this state, (the city and county of New-York excepted,) or any three or more of them, of whom a judge of the court of common pleas shall always be one, shall have power to hold the court of general sessions of the peace in the said counties respectively. The general sessions have power to try all offences not punishable with death, or imprisonment in the state prison for life. The offence charged in this case was a misdemeanor, and was of course within the jurisdiction of the general sessions.
The next inquiry is, whether this power of justices of the peace, to let to bail, as incident to their jurisdiction to try certain offences, has been restrained or modified by statute. The principal provisions upon this subject are contained in the act declaring the powers and duties of justices of the peace. 2 R. L. 506. The first section declares that the justices in the several counties shall have power jointly and severally to cause to be kept all laws for the preservation of the peace, and to [470] cause all persons who shall break the peace to come before them, and to commit them to jail, or to bail them, as the case may require; and also all persons who shall threaten to break the peace, and cause them to find security for the peace, or for their good behavior, and if they refuse, to commit them to prison. Every recognizance so taken is to be sent or brought into the next court of general sessions. All the powers here enumerated belong to justices of the peace, as peace officers, by virtue of their office at common law, independently of any statute. The second section makes it the duty of every justice of the peace before whom any person shall be brought for any fraud or felony, or for suspicion thereof, before he commit him to jail, to take his examination, and the information of those who bring him, and to reduce the same to writing within two days, and to bind the witnesses by recognizance, and to send such examination and recognizance to the next court having cognizance of the offence. The 3d section provides, that any two justices of the peace jointly out of sessions, may, at their discretion, let to bail prisoners arrested and in jail in their respective cities and counties, charged on suspicion of felony, to appear at the next court having cognizance of the .of-fence, and where the prisoner ought to be tried. The 4th section institutes and organizes courts of special sessions of the .peace, and provides that if any petty larceny, misdemeanor, breach of the peace, or other criminal offence, under the degree of grand larceny, be committed, and the person charged therewith on oath, before any justice of the peace, shall not forthwith give good and sufficient bail to appear and answer for the same at the next court of general sessions of the peace, &c. he shall be committed to the custody of a constable; and if within 48 hours he does not give such bail, he may then be tried by the special sessions. The 4th section of the act concerning the courts of common pleas and general sessions, 2 R. L. 148, was also referred to by the counsel for the defendants; it merely provides that the first judge of any court of common pleas may, by and with the advice and consent of the attorney general or district attorney, let to bail any prisoner confined, &c. for any crime or offence, in like manner as a justice of the supreme court had authority to do, and [471] for that purpose, authorizes such first judge to allow a writ of habeas corpus to bring up such prisoner. I do not perceive that the power of justices of the peace, to bail after indictment such offenders as they have authority to try as members of the court of sessions, is affected by any of these statutes. The third and fourth sections of the act, declaring the powers and duties of justices of the peace above referred to, give them powers which they did not before possess, but take none of their previous authority from them. Thus, the third section authorizes two justices to let to bail prisoners arrested and in jail, charged on suspicion of felony, that is, before indictment—a power which they did not previously possess; and the fourth section, in the cases therein enumerated, that is, in all case» under the degree of grand larceny, authorizes any one justice before whom the charge is made, before indictment, to take security or bail for the appearance of the offender at the next sessions. It is not perceived that the provisions of the habeas corpus act, 1 R. L. 354, and the authority given to the first judge of the courts of common pleas, by and with the consent of the attorney general or district attorney, to let to bail in certain cases, have any bearing upon this case. My conclusion, therefore is, that the recognizance in this case was entered into before officers having competent authority to take it, and I see no objection to the form or substance of the condition.
The other objections made to the declaration are, I. That it does not appear that the recognizance was signed by Buck and Forsaith, the principals; 2. That it is not averred that the recognizance was sent or brought into court, or that it had in any manner been made a record; and 3. That it is not averred that it in any manner appears of record that the principals made default, &c. nor does it appear that the defendant made default in producing his principals, &c. Although the declaration may in some of the particulars above mentioned be defective in precision and form, I am inclined to think that it is good upon general demurrer.
It cannot be necessary, in a declaration against the surety, that it should affirmatively appear that the principals signed the recognizance. I am not aware that it is legally indispensable that they should unite in the same recognizance. The [472]*47218th section of the act, concerning courts of common pleas an£j generaj sessions of the peace, referred to by the defendant’s counsel, certainly does not show it to be necessary. 2 R. 'k' § 1®- That section merely provides that all recognizances, in order to be valid, must be signed by the party intended to be bound by them.
It is undoubtedly necessary that it should appear that the recognizance was filed in, or made a record of the court in which it is returnable. The People v. Van Eps, 4 Wendell, 393, and the cases there cited. 7 Went. Pl. 55 to 78. The declaration in this case, although it does not positively aver that fact, expressly refers to the recognizance as a record of the court of sessions. Upon general demurrer, I am inclined to think this is sufficient. 1 Chitty's Pl. 354,7,8.
The case of The People v. Van Eps shows that the averment that the principals although called did not appear, was in substance equivalent to an averment that their default for not appearing was entered of record, as the entering it of record was the necessary legal consequence of the default.
The averment that the principals, when called, did not appear, necessarily involves the fact that the defendant did not produce them.
The breach is sufficiently alleged. Upon the whole, the plaintiffs are entitled to judgment upon the demurrer, with leave to the defendant to plead on payment of costs.