
    Francis H. Pugh et al. v. The State.
    1. Bail. Recognizance. Power of justice of the peace to talte. Act of 3715, ch. 16, | 1. By the act of 1715, ch. 16, § 1, in all criminal offences that are bailable by law, the committing- magistrate is required to “admit the party to bail.” The act is silent as to the form in -which bail shall be tahen, but it may be done by bond or recognizance.
    2. Same. Scire facias. Demurrer. Judgment nisi. The judgment nisi must show that the recognizance was returned into Court, but it is not necessary that it should be expressly stated in the judgment. It is sufficient, if it is stated that it appeared to the Court that such a recognizance had been entered into before the committing magistrate.
    3. Same. Same. Not necessary that it should show when the Court met. It is not necessary that a writ of scire facias, issued upon a judgment nisi against bail, should show on what day the Court at which the judgment was rendered commenced. The Courts will take judicial notice of the terms of the several Courts within the territorial limits of the State, and the days on which the terms commence. And if the day on which the forfeiture is taken is recited in the sci. fa., the Oourt can see, without an express statement, whether it was on a day after the commencement of the term.
    4. Same. Same. Need not recite that the prisoner was adjudged guilty. A scire facias need not recite that the prisoner was adjudged guilty, by the justice, of the offence charged. No formal judgment of the guilt of the accused, by the committing magistrate, is required. The adjudication that the party shall stand committed, or give bail for his appearance to answer the charge before the tribunal having cognizance of the offence, is a sufficient performance of the duty imposed, by law, on the examining magistrate.
    5. Recognizance. Lien of. When taken by a magistrate, (¿uesüon reserved. A recognizance entered into in a Oourt of Record, forms a direct and specific lien upon all the lands owned by the party at the time of its acknowledgment, or afterwards acquired by him. And from the force and effect of a magistrate’s recognizance, upon its being returned into a Oourt of Record, the legal consequence, as respects the lien, must necessarily be the same; but whether the lien in the latter case shall be held to attach only upon the return of the recognizance into Oourt, is reserved.
    FROM GIL JES.
    Judgment final was rendered at the August Term, 1857, Martin, J., presiding. The sureties sued out a writ of error.
    WalkeR, for the plaintifF in error.
    It is contended that the judgment in this cause is erroneous, and should he reversed for the following reasons:
    The magistrates who tried the defendant, Pugh, when he was arrested, do not say, in their judgment or decision that the said Pugh has committed any crime or offence whatever. They merely say, “ that having heard the evidence in this case, consider that the defendant give hail and sufficient security in the sum of three thousand dollars, conditioned to make his personal appearance at the next term of the Circuit Court of Giles county, to he held at Pulaski, on the second Monday in December. ” The magistrates had no right to require the defendant, Pugh, to give hail, unless they believed, from the proof, he had been guilty of some crime, and that that crime was bailable; and they should have said so in their judgment. The act of 1715, ch. 16, § 1, (Car. & Nich., 426,) says that “no person within this State shall be committed to prison for any criminal matter, until examination thereof be first had before some magistrate, which magistrate shall admit the party to bail, if bailable,” &c. A magistrate has no right to require an innocent man to give bail, and there is nothing in the judgment of the magistrates showing that Pugh is not an innocent man, and nothing to show they had a right to require him to give bail, and a scire facias cannot be grounded upon a recognizance not authorized by law, nor can any judgment be pronounced upon it. Owen v. G-rundy and Mudes, 8 Yer., 486-439. • See, also, act of 1817, ch. 100, § 1, (Car. & Rich., 429,) which says: “ If the justice shall be of opinion the defendant is guilty of the offence, he shall bind him over to Court.”
    Neither the scire facias or judgment nisi shows upon its face that the defendant, Pugh, has really forfeited his recognizance. His recognizance says, “he shall make his appearance at the Circuit Court of Giles county, on the second Monday in December, (being States day,) and the second Monday of the December Term of said Court;” and the seire facias says, the said Pugh, on the 19th of December, 1856, a day of said term, was called to come into Court, and came not, without saying the 19th of December was the second Monday of said term or States day, or a day of said term after the second Monday or States day. The 19th day, from all that appears in said scire facias, -may have been before the second Monday of said term, and before the defendant, Pugh, was bound to appear. And the judgment nisi merely says, “ on this day the said Pugh was called to come into Court; came not;” without saying upon what day of said term he was called, and without stating any breach of said recognizance. The scire facias should recite upon its face a breach of the recognizance or bond. McCombs v. Hall and Boddie, 4 Yer., 455, 456; Martin v. Ctorden, 3 Hayw., 173.
    The Court cannot look outside of the scire facias in aid of its defects or omissions. State v. Arledge, 2 Sneed, 229, 231; Knott v. Smith, 2 Sneed, 246, 247.
    It is contended that the judgment nisi is radically defective. It is a summary proceeding, and ought to assume every fact necessary to be proved to constitute the liability of the defendants. Dickenson v. Kin-caid, 11 Hum., 72. Said judgment nisi does not show upon its face that the recognizance was returned into the office of the clerk of the Circuit Court of Giles county, or that said defendants signed, sealed, and delivered said recognizance, or that they acknowledged the same before a justice of the peace of Giles county, or any other judicial officer authorized to take the same. State v. Arledge, 2 Sneed, 229-231; State v. Cherry, Meigs’ Rep. 236.
    
      A scire facias is founded upon a record, and recites nothing that is not of record. Nicholson v. Patterson, 2 Hum., 448.
    And it is contended that the scire facias in this cause should have recited nothing hut the judgment nisi, or the facts set forth in said judgment. All the balance is merely a historical statement made hy the clerk without any authority, and should not he looked to. And if the judgment nisi is defective and void, the historical statement of the clerk cannot cure it. The judgment nisi must embody such a statement of the facts as will show directly and certainly, and not hy mere inference only, the liability of defendants. Knott v. Smith, 2 Sneed, 247; 3 Hum., 225; 11 Hum., 72.
    The pretended recognizance in this case was not signed or sealed hy any of the defendants, and the same is therefore void. Justices of the peace have no authority to take a recognizance. It can only he taken by a Court of Record, and a magistrate’s court is not a Court of Record; and there is no statute that authorizes a magistrate to take a recognizance. They may take hail, if the case is bailable, hut must do so hy requiring bond and security, signed, sealed, and delivered.
    If the justice had the power to take the recognizance, the defendant should have been recognized to appear at the next term of the Circuit Court, and not on the second Monday in the next term. The statute requires the justice to take' hail for the appearance of the defendant at the next term of the Court, and not on any particular day of the term.
    The final judgment states that two writs of scire facias had been issued against the defendants, and returned not found,- when they show that they were executed upon all the defendants except P. H. Pugh. This is error for which the judgment should he reversed.
    • The act passed the 27th cif February, 1852, has nothing to do with this case. See Acts of Assembly, 1851-52, p. 421, § 9, of said act. This act merely declares that bonds and recognizances good at common law, shall be good statutory bonds and recognizances.
    The defendant cannot be required to appear at a time different from that stipulated, even if the Legislature changes the time of holding Court. State v. Stephens, 2 Swan., 308.
    Sneed, Attorney General, for the State.
    It is manifest that the words recognizance and bail are used in our statutes as convertible terms, and it has been the settled course of decision in this State for years past to recognize this form of obligation, when taken by a justice of the peace, as legal and binding. It was so understood by the compilers of the revisal of 1836, who, as the Court will see, have prescribed a form for such obligations, when taken by justices of the peace in criminal cases. See act of 1715, ch. 16, § 1, C. & N., 426, and note the word recognizances, as used in that act. See, also, the form of the bond predicated of said act, C. & N., 760.
    And so, also, are these words used at common law. Thus it is said: “ In all cases where the party is admitted to bail, the recognizance is to be returned to the Court having jurisdiction of the offence.” ■ 1 Bouv. L. D., 153.
    But it is said that the very definition of the word excludes the idea that a justice of the peace has authority to take that form of obligation. It is defined to be “ 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. Com., 341; 1 Chit. Cr. L., 90.
    We say, then, that a justice of the peace is an officer duly authorized by law, and that the act of 1715, ch. 16, § 1, confers that authority.
    A sheriff is not a “ Court of Record,” and yet he is authorized by the very words of the law to take a recognizance in certain cases. See act 1809, ch. 6, § 2, C. & 1ST., 119.
    But let us look at the reason of the thing, and see what magic there is in the terms “Court of Record,” as used in this connection. What is the object of the record? Simply to preserve the evidence of the obligation. Why then is it more necessary to preserve the evidence of a recognizance than an ordinary bail bond in the common form ? Are not both, in effect, precisely the same ? Is not the only difference that one is signed by the justice and the other by the cognizor ? And yet it is conceded that a justice may take a valid bail bond.
    But we say that, aside from the act of 1715, and all other legislation upon the subject, this is not an open question in this State. It is true that the court of a justice is not a Court of Record; but the moment he files a recognizance taken by him in the Circuit Court, it acquires the “ dignity and verity ’’ of a record. And, without further elaboration, this Court has, on two occasions at least, recognized the validity of a recognizance when taken by that officer. Barlcley v. State, Meigs’ R. 93; State v. Qherry, lb., 232; and Arledge v. State, 2 Sneed, 229.
    We insist, therefore, that the State is entitled to final judgment in this case.
   McKinney, J.,

delivered the opinion of the Court.

Francis H. Pugh was arrested on a warrant issued by a justice, for the murder of J. P. Thompson, and was bound over to the Circuit Court of Giles to answer the charge. The plaintiffs in error entered into a recognizance in the sum of $3,000, jointly and severally, for the appearance of the prisoner on the second Monday of the December Term of said Court, 1856.

The prisoner failing to appear, a forfeiture was entered against him and his bail, upon the recognizance; and scire facias having been served on the bail, severally, they appeared and demurred. The demurrer was overruled, and final judgment rendered against them. From this judgment the bail have prosecuted a writ of error to this Court.

The first error assigned is, that a justice of the peace, by our law, has no legal authority to take a recognizance; and that, consequently, the entire proceedings are null, and of no effect.

The authority of a justice to take a recognizance, seems to have "been, always, tacitly conceded hy our Courts from the earliest period of our judicial history. Numerous cases, necessarily involving the question, are to he found in our books — in none of which, nor, indeed, so far ,as we are aware, in any case before the present, was any point made as to the power of the magistrate to take bail in this form. If the question of power were a doubtful one, so long and universal an acquiescence in its exercise ought alone, perhaps, to be now held sufficient to have conclusively settled it. But we do not regard it as a doubtful question. We think it clear that the power exists by statutory enactments.

By the act of 1715, ch. 16, § 1, in all criminal offences that are bailable by law, the committing magistrate is required to “ admit the party to bail.” The act is silent as to the manner or form in which bail shall be t-aken, whether by bond or recognizance, for the appearance of the prisoner before the Court to which he is bound. But the same section makes it the duty of the magistrate to bind over the prosecutor and witnesses for the State, likewise, to appear at the Court to which the prisoner is bound; and in express terms prescribes the manner in which they shall be bound, namely, by “ recognizance, with good and sufficient securities.” The power being thus expressly given to take a recognizance from the prosecutor and witnesses, it would seem absurd to deny the authority to take a recognizance from the party accused.

There is certainly some plausibility in the suggestion, that, in some of our statutory enactments, the term “recognizance” has been used without regard to its strict legal import, and as obviously meaning a bond, rather than a recognizance properly so called; as in the act of 1805, ch. 37, § 1, which directs the sheriff, on executing a capias on an indictment, to take a recognizance for the appearance of the defendant; and so in other instances that might he mentioned. But notwithstanding this apparently loose use of the term in some instances, we are not prepared to admit that, in the act of 1715, it was not used, and intended to be understood, in its proper legal sense.

The strongest argument against the power of the justice, is the apparent incongruity of holding that a magistrate, whose court is not a Court oj Record, may take an obligation, the legal efficacy of which depends upon the fact of its being made of record.

It is true that, in its technical sense, a recognizance “is an obligation of record entered into before a Court, or officer duly authorized for that purpose.” 2 Bl. Com., 341; 1 Chitty’s, C. L., 90. But then, in the nature of things, there is no legal incongruity, or absurdity, in delegating the power to take hail, in this form of obligation, to a ministerial officer, or to a magistrate clothed with judicial power, though his Court he not a Court of Record. It is a matter of positive law, resting in the discretion of the Legislature, by whose will, a magistrate or officer, either judicial or ministerial, may, for a particular purpose, be invested with a power more properly appertaining to a Court of Record.

The manner of taking bail, in itself considered, is not very important; whether the obligation be in the form of a bond executed by the parties; or a recognizance, which need not be signed by the parties, the acknowledgment being reduced to writing by the magistrate, and attested by him, is merely a matter of form. But the legal consequences of these obligations are, in some respects, very different; and it is in view of these differences that the question derives all its importance.

It was settled by this Court, in the case of Barkley v. State, Meig’s Rep., 93, that a recognizance taken by a magistrate when filed in the Circuit Court, becomes a part of the record of the proceeding in that Court, and is' thereby invested with the dignity and verity which, by law, appertain to records; so that the party is precluded from availing himself of the plea of non est factum to such recognizance.

Again: A recognizance forms a direct and specific lien upon all the lands owned by the party at the time of its acknowledgment, or afterwards acquired by him. This is unquestionably so, of a recognizance entered into in a Court of Record, as held by this Court in the case of The State v. Winn, 3 Sneed, 393. And from the force and effect attributed to a magistrate’s recognizance, upon its return into a Court of Record, in Barkley v. The State; the legal consequence, as respects the lien, must necessarily be the same; whether the lien in the latter case shall be held to attach, only, upon the return of the recognizance into Court; or, by relation, from its date, is a question upon which we need express no opinion at present.

The next error insisted on, is, that the judgment nisi is defective, in omitting to show that the recognizance was returned into the Circuit Court of Giles. This fact, it is true, is not expressly stated in the judgment, but it- is stated that it appeared to the Court that such a reco-gniznce (the substance of which is recited in the judgment) had been entered into before the committing magistrates; and this, we think, is sufficient. From the statement, that it “appeared to the Court” that such a recognizance had been taken, it must be held, by necessary implication, that it had been returned, aná was present before the Court when the judgment was entered, for the fact of its existence could not otherwise have appeared to the Court. The case of The State v. Arledge, 2 Sneed, 229, does not support this objection to the interlocutory judgment.

The third error relied on, is, that the forfeiture was entered on the i9th day of December, 1856, and the scire facias does not show that the day of the forfeiture was the second Monday, or a day subsequent thereto, of the December Term of the Court; and, therefore, it is argued it does not appear that the forfeiture was regularly entered. This objection is not well founded.

It is well settled, that the Courts will take judicial notice of the terms of the several Courts within the territorial limits of the State, and the days on which the terms commence. By this means we learn that the day on which the forfeiture was taken, was a day subsequent to the “second Monday” of the term to which the prisoner was recognized to appear. This is sufficient. Matters of which the Courts will take judicial notice need not, generally, be averred in pleading.

The fourth error alleged, is, that it does not appear from the magistrate’s proceedings, as recited in the scire facias, that the prisoner was adjudged guilty, by the justices, of the offence charged; without which, it is argued, they had no power to bind him over to answer said charge. This is a mistaken conclusion. No formal judgment of the guilt of the accused, by the committing magistrate, is required. The adjudication, that the party shall stand committed, or give hail for his appearance to answer the charge before the tribunal having cognizance of the offence, is a sufficient performance of the duty imposed by law on the examining magistrate. More than this, on his part, would he nugatory.

The result is, that there is no error in the record, and the judgment is affirmed.  