
    Samuel Vose, Plaintiff in Review, versus Josiah Deane and Another.
    A justice of the peace has no authority to take a recognizance from one cnarged as the receiver of stolen goods to the party from whom the goods wore stolen,' to secure to him the payment of the treble damages given by statute of 1784, c. 66.
    This suit was prosecuted to review a judgment heretofore rendered in this Court upon a scire facias, brought by the defendants in review against the plaintiff in review, to have execution upon a recognizance entered into by the latter to the former, before a justice of the peace, as surety for one John Harris, charged before the magistrate as a receiver of stolen goods, the property of the defendants in review. The recognizance was con- [ * 381 ] ditioned for Harris’s * appearance at the then next term of this Court, to answer to the said charge, and was in-, tended to secure to the defendants in review the payment of the treble damages, in case of Harris’s conviction. The scire facias alleged that he did not appear, nor did Vose, his surety, bring him in, although solemnly called, &c. After several continuances of the scire facias, judgment was rendered thereon against Vose upon his default; and upon that judgment execution issued, and was satisfied.
    Upon the review, the plaintiff in review pleaded in bar, that during the whole term at which Harris was bound to appear, he was, by the providence of God, visited and confined to his house with sickness, and rendered utterly unable personally to appear, or to be brought to the Court. The defendants in review, in their replication, traversed the fact of the sickness, and tendered an issue to the country; which being joined, the jury returned their verdict, that Harris was in Court the first day of the term, but was unable, from severe indisposition, to attend any other day during the term. The action stood over to this term for judgment upon the verdict; and now,
    
      Shaw, of counsel for the plaintiff in review,
    moved the Court for judgment; and in support of his motion he contended, 1. That there was no authority in the magistrate to take the recognizance. If he had such authority, it must be given him by statute. But the statute of 1784, c. 66, which was the only one in force at the time of this transaction, which relates to the subject, authorizes and directs a recognizance to the party from whom goods are stolen, to be entered into only for the appearance of the person charged with the theft. No such provision is to be found as to the person charged as a receiver. If no such authority appertained to the justice, his. act was merely void
    Two other grounds of the motion were also stated, viz. that there was no regular declaration on record of the forfeiture of the recognizance; and that Harris’s sickness, as * found [ * 282 ] by the verdict, was a sufficient and legal excuse for his non-attendance. But these last points were not considered by the Court.
    
      For the defendants in review,
    
    it was argued that, the statute having provided that the receiver of stolen goods shall suffer like punishment as is to be inflicted on the thief upon a first conviction ; and this Court having decided that the receiver is liable to the payment of the treble damages, as a part of the punishment;  and the statute having also provided that the principal offender shall recognize to the party injured, this recognizing may be considered as a part of the punishment, or as an incident to it. The law having enacted the penalty, it should seem that all the means, necessary to secure the end, should be implied.
    There is no express provision for taking a recognizance from the receiver of stolen goods to the commonwealth. If the magistrate has authority to take such recognizance, which has never been questioned, he must derive it from the provision of the statute respecting the thief, or from the statute of 1783, c. 50, defining the powers of justices in criminal cases generally, by which they are authorized to take bail in all cases not capital, and not cognizable by themselves.
    The interest in the treble damages being wholly in the party whose goods have been stolen, it is fit that the recognizance should be to him. Such has been the immemorial and constant usage'. If it be now to be declared illegal, then receivers of stolen goods will forfeit their recognizances to the commonwealth, which are generally for inconsiderable sums, and will be gainers by their base traffic.
    
      
      
        2 Mass. Rep. 14, Commonwealth vs. Andrews
      
    
   The opinion of the Court was afterwards delivered by

Sedgwick, J.

There are several questions presented to the Court in this case, one only of which is necessary to be determined; and that is, whether the justice of the peace, who took the recognizance, was authorized to take it.

It cannot be necessary to prove, that a ministerial officer can do no valid act, but what he is, either expressly or by * necessary implication, authorized to do. In this case, [ * 283 ] it is not pretended that a justice is expressly authorized to take a recognizance to the party injured, for the treble damages; and we are satisfied that he has no such power by implication.

The statute of 1784, c. 66, <§> 5, enacts that when any person shall be apprehended, charged with the crime of theft, and be admitted to bail, he shall not only recognize to the commonwealth, &c., “ but he shall enter into another recognizance, with sufficient sureties, to the party injured, for treble the value of the articles, which he shall be charged with stealing.” In the case before us, Harris was not apprehended on a charge of the crime of theft, nor charged with stealing; but he was charged with a crime as perfectly distinct from theft, although connected with it, as any other felony is. This, then, is not a case contemplated by the legislature, in which such authority is given to a justice.

Nor is such authority given by the statute of 1783, c. 51, § 1. This act authorizes justices of the peace to hold to bail all persons guilty, or supposed to be guilty, of offences less than capital, which are not recognizable by a justice of the peace. This statute preceded that of 1784 ; and certainly, by authorizing the holding to hail, did not comprehend a power to take a recognizance to the injured party, for his treble damages; a power then never given nor contemplated by the legislature ; hail then being intended merely to secure the appearance of the person charged with a crime., at the court of which the recognizance was to be returned.

It is true, that, by the ninth section of the statute of 1784, the receiver of stolen goods may, before a .conviction of the principal offender, be prosecuted and punished ; and the act declares that 11 on conviction he shall suffer such punishment as the principal offender might have suffered on a first conviction. But this act does not, by any reasonable construction, give an authority to a jus [ * 284 ] tice of the peace to * take a recognizance to the injured party for his treble damages.

On the whole, we are all of opinion that the justice had no legal authority to take the recognizance, on which the original action was brought, and that therefore no action can he supported upon it.

The following judgment was entered by order of Court: —

“ It now appearing to the Court that the recognizance, upon which the judgment complained of was rendered, is null and void, and that the said Vose ought to be restored to all that he hath lost thereby : It is therefore considered by the Court, that the said Deane and Raymond take nothing by their original writ, and -that the said judgment be reversed ; and that the said Vose, the original .defendant, and plaintiff in review, recover against the said Deane and Raymond the sum of-, being what he has originally lost by the said judgmen t, with his costs by the said original suit, and his costs upon this suit taxed at-.”

Dexter and Sullivan for the defendants in review.  