
    Young vs. Shaw.
    A power to take recognizances, with any legal condition, is Incident to every common law court of record. Therefore, although the statute, which authorizes the defendant in certain cases, to file in court, a declaration on boot against the plaintiff, provides, that the defendant shall become recognized, &c. Yet, - if a third person, in such case, become recognized, instead of the defendant-such recognizance 13 valid, and a good and legal security to the cognizee.
    Rutland,
    February, 1814.
    THIS was an action of debt on recognisance. The declaration set forth the occasion on which the recogniaance was taken, ~md the eondition.-That Guilford D. Young, the present plaintiff, had commenced an action on a note of hand, against Andrew McFarland. On the entry of that action in the County Court, McFarland filed a declaration on book against the plaintiff, Guilford D. Young, under the ninety third section of the~ judiciary act, and Samuel Shaw the now defendant, became recognized before that Court to Cuilford D. Young, for the prosecution of the declaration on book, in favor of McFarland against him, and for costs, in ease of failure. In the declaration on book, judgment was rendered in favor of ~oui~g, the present plaintii1~, for his costs, which remained unpaid.
    To this delaration there was a demurrer and joinder.
    
      Williams and Mallctry,
    in support of the demurrer, contended
    
      Williams and Mallary,
    Langdon, for the plaintiff.
    The declaration, in this case states that Samuel Shaw the present defendant became recognized, at the special instance and request of McFarland, the then defendant ; and quifacit per alium, facit per se, is a maxim of law. And many things are good, though not done precisely agreeably to the letter ofa statute, if the principal object of the statute be attained. As, where the statute makes it necessary that, on the allowance ofa writ of error, a recognizance be taken in double the amount of the debt, yet, if taken for more it is good. So, if an executor enter into a recognizance, though not required by law, so to do, it is good, 2 L. R. 1138, Fanshaw vs. Morrison, same 1459, Johnson vs. Laserre. These cases shew that courts have a common law power to take recognizances. And, in this case, the condition was for a thing moral and legal — to secure to the plaintiff the costs which he might wrongfully sustain.
   The opinion of the Court was delivered by

Chipman, Ch. J.

It is not now a question, whether the County Court ought to have received the declaration of McFarland in that case, without his becoming personally recognized to Young, the then plaintiff, nor does it now appear, whether he did personally recognize or not. But the question is, whether the recognizance, taken of the defendant, Shaw, into which he understandingly entered, and which, as to the occasion, purpose and condition is against no law, justice or policy, is illegal and void, merely because not specially authorized by statute on that occasion. The statute requires, that the defendant, filing a declaration on book, in such case, shall become recognized to the plaintiff, whose action is to be stayed, to wait the event of such declaration. If he procure another person to be recognized in his stead, or jointly with him, it is not immoral — it is not against any positive law, or against any principle. If it be void, it is because Courts of common law jurisdiction, have no power to take a recognizance in any case, unless specially authorized by statute.

It is said that the courts in this State, do not derive any power from the common law, but all their powers are conferred by statute, and, although they have common law powers, yet those powers arc conferred by statute ; but this is not precisely so. The establishment of Courts, is provided for by the constitution. They are organized, and their powers, defined, modified, limited or extended by statute, as it was supposed, the nature of the government required, and as would best secure a duo and prompt administration of justice.

The provisions of the constitution are very brief, on this subject, and have a constant reference to the common law, without which they would be unintelligible. Had the legislature simply organized the several courts, without any further provision, relating to their powers or mode of proceeding, they would have had, as necessarily incident, all the powers of similar common law courts, not inconsistent with the nature of the government, and the general provisions of the constitution. Where the legislature have by statute, undertaken to declare, ascertain, limit, extend or modify these pow. ers, the statute must govern, in every case of incidental powers, not acted upon by the legislature, the common law, as applicable to the institution of the court, is the only rule and guide. As to this incidental power of taking recognizances, and such power is unquestionably incident, to every common law court of record, the legislature have not in any one instance acted upon it. It has never been thought necessary to declare the power to exist, in any of the courts. There is not a single clause in any of our statutes, on this subject, either enabling or restraining; and that, because the legislature have alwayá understood, as this Court now understand it} that it is a power incident to every common law court of record. The legislature in many instances, have by law directed, that parties in court, either by themselves or with sureties, in the course of proceedings, civil and criminal, shall become bound, by way of recognizance, either to the opposite party, to the State, or to some public treasury : but in no instance has it been thought necessary, to give a court of record power to take such recognizances : and, clearly because such court was considered as already possessed of the power generally, as necessarily incident to its institution.

Every recognizance acknowledged in a court of record, with any legal condition whatever, is a good and legal security to the conuzee, whether conditioned for the payment of money, or for the performance of any thing, not contrary to law. On these principles, this recognizance must be considered as a good and legal security. Had it been a bond of indemnity, executed by the defendant, Shaw, to the plaintiff, with the same condition, which is expressed in this recognizance, no one would presume to question its legality and bringing force. The only difference between the two sureties is, that this is a security authenticated with greater solemnity. There must, therefore, be

Judgment for the plaintiff.  