#### William Shattuck et al. v. The People of the State of Illinois.

Error to Madison

1. Recognizance — requisites and effect. The statute of Illinois requires every recognizance that has any relation to criminal matters to be taken to the people of the state, and when not entered into before a court of record to be signed by the party acknowledging it. No particular form is prescribed; no priority in pay ment is alio wed; and before the estate of the recognisor is bound by it there must be not only a failure to perform the condition, but an award of execution for the penalty, in the proceeding by scire facias, or the recovery of a judgment for the penalty, in an action of debt. The recognizance does not, per se, become a lien on the property of the person entering into it, but whether it is to operate as such depends entirely upon legislative enactment, (a)

2. Same — bond in lieu of. A bond taken before two justices of the peace, conditioned for the appearance of the principal obligor at the next term of the circuit court, is a sufficient compliance with the statute requiring the accused to enter [*478] into a recognizance; and such bond is valid as a recognizance, anda scire facias may be issued thereon.

3. Same — words absent, not vitiate. The words “ to be levied of your goods and chattels, lands and tenements,” in a recognizance, are a mere matter of form, and may be omitted without impairing the legal effect of the instrument.

4. Same — words of like effect. There is no difference in their legal effect between the words “ is held and firmly bound ” and the words “ owes and is indebted.”

5. Same — sta'ing offence. Where a person is recognised to appear at a circuit court to answer a criminal accusation, none of the proceedings before the magistrate but the recognizance of the accused and of the witnesses on the part of the prosecution are required to be sent up to the circuit court. The recognizance stands by itself, and it is only necessary that it should set forth substantially the off-nce charged.

6. Same — prestimpiions arising. A recognizance, when filed, becomes a matter of record, and the presumption from it is that the charge was properly preferred and investigated, and the proper decision made, before it was entered into and acknowledged.

7. Same — same. Where it appeared that a recognizance was taken before two justices of the peace, requiring the accused to appear in the circuit court of Madison county, but the recognizance did not show where it was taken nor of what county the justices were officers: Held, that the presumption was that the justices acted within the scope of their authority until the contrary was shown, and consequently that they were officers of Madison county.

8. Same — same. Where a recognizance recites that the principal recognisor had been found guilty of the crime charged, and that for the purpose of releasing his body from custody the recognizance is entered into, it implies that the requisite preliminary proceedings were had.

*4959. Judicial cognizance — justice of peace. The circuit court, as a matter of convenience, takes cognizance of who are justices of the peace for the county in which it is held, and proof of the official character of these officers is never required, unless that particular question is distinctly in issue. (b)

10. Initials — J. P. The letters J. P., affixed to the certificate to a recognizance, mean justice of the peace. They are abbreviations which are well known and in common use. (c)

The judgment in this cause was,rendered by default in the court below, at the October term, 1843, the Hon. James Shields presiding, for $300, the penalty in the recognizance. The defendants brought the cause to this court by writ of error.

Seth T. Sawyer, for the plaintiff in error,

cited R. L. 220-2, §§ 8, 5, 6; 8 Blackf. 108, 385; Breese 165, 257; 3 J. J. Marsh. 642.

J. A. McDougall, attorney general, and W. H. Underwood, state’s attorney, for the defendants in error,

cited 1 Blackf. 339; 3 Blackf. 334; Breese 285; 17 Wend. 255.

(a)

Cases Citing Text. Obligation in form of penal bond, with condition of recognizance, has force of recognizance. McFarlan v. People, 13 Ill. 12.

There need not be any order of court directing party to enter into recognizance. Chumasero v. People, 18 Ill. 405.

Form of recognizance, held sufficient in text, again held sufficient. People v. Watkins, 19 Ill. 117, 120.

Recognizance does .not become lien on cognisor’s land until recovery of judgment on recognizance. McKee v. Brown, 43 Ill. 130, 133.

(b)

Certificate of acknowledgment which purports to be made in certain county and by justice of peace raises presumption that officer was justice of such county. Livingston v. Kettelle, 1 Gilm. 116, 119.

Court will officially take notice who are notaries public in county in which it sits. Stout v. Slattery, 12 Ill. 162, 164; Rowley v. Berrian, 12 Ill. 198, 200.

Court will officially take notice who are justices of peace in county in which it sits. Irving v. Brownell, 11 Ill. 402, 411; McFarlan v. People, 13 Ill. 12, 14; Graham v. Anderson, 42 Ill. 514, 516.

Court will take judicial notice who are its officers and who are officers in civil affairs within its jurisdiction, e. g. it is presumed to know who is sheriff, although he does not add his title to his signature. Thompson v. Haskell, 21 Ill. 215.

(c)

Characters N. P. will be judicially recognised as abbreviation of term, notary public, Rowley v. Berrian, 12 Ill. 198, 200.

Treat, Justice,

delivered the opinion of the court: This was a proceeding by scire facias. The scire facias states that on the 16th of May, 1843, there was filed in the clerk’s office of the Madison circuit court a recognizance in these words:

“ Know all men by these presents that we, Francis Van Am-berg, William Shattuck, and G. W. Richardson, are held and firmly bound by these presents to The People of the State of Illinois, for the use of the inhabitants of the county of Madison, in the penal sum of three hundred dollars, for the true payment of which sum, well and truly to be made, we bind ourselves, our heirs, administrators, executors, or assigns, by these presents. Given under our hands and seals, this eleventh day of May, A. d. 1843. The condition of the above obligation [*479] is such, that whereas Francis Van Amberg has been found guilty on the 6th day of May, before Erastus Wheeler, Esq., of passing counterfeit money, and whereas said Francis Van Amberg is desirous of releasing his body from custody ; therefore, if said Francis Van Amberg shall and will be at the court house in the town of Edwardsville, on the fourth Monday of May inst., at the *496circuit court then and there to be holdenin and for the county of Madison, at the first day thereof, and not depart said court without leave, to answer what may then and there be objected against him, the said Francis Van Amberg; then this obligation to be void, otherwise, and in case of failure thereof, to be in full force and virtue.

“ FkaNcis VaN Amberg, [seal.]

' Wm. Shattuck, [seal.]

G. W. RichardsoN, [seal.]

“ This recognizance was approved by us on the eleventh day of May, A. D. 1843.

“ Julius ,L. Barksback, J. P.

• Erastus Wheeler, J. P.”

. The scire facias then proceeds to aver, that afterwards, and during the May term, 1843, of the Madison circuit court, an indictment was found against Van Amberg, for passing a counterfeit bank note; that he failed to appear and answer to the charge, and that the circuit court declared the recognizance forfeited, and awarded a scire facias. The scire facias was served on Shattuck and Richardson.. They failed to appear, and a judgment by default was rendered against them, that the people have judgment and execution for the amount of the recognizance and costs. To reverse that judgment a writ of error is prosecuted.

The principal question presented by the assignment of errors is whether the bond set out in the scire facias can be considered a recognizance.

A recognizance at common law was an obligation entered into before some court of record, or magistrate duly authorized, with a condition underwritten, to do some particular act, as to keep the peace, or appear and answer to a criminal accusation. It was not signed by the party entering into it. By it, the eognisor acknowledged that he owed the cogniseea certain sum, to be levied of his goods and chattels, lands and tenements, if he should make default in performing the condition. In other respects it was in form like a penal bond. It was considered an obligation of more solemnity and of greater legal effect than another bond. It was allowed a priority in point of payment, and the lands of the cog-nisee were bound from the time of its enrollment.on the record. 2 Black. Com. 341 ; 3 Tomlin’s Law Diet. 297.

Our statute requires every recognizance, that has any [*480] relation to, criminal matters, to be taken to the people of the state ; and when not entered into before a court of record, to be signed by the party acknowledging it. R. L. 221; Gale’s Stat. 239. ' No particular form is prescribed ; no priority in payment is allowed. Before the estate of the eognisor is bound, there must be not only a failure to perform the condition, but an award of execution for the penalty in the proceeding by scire fa- *497 cias ; or the recovery of a judgment for the penalty in the action of debt. The recognizance does not, per se, become a lien on the property, real or personal, of the party entering into it; but whether it is to operate as such depends entirely on legislative enactment. It was so decided by the supreme court of Ohio, in the ease of De Witt v. Osborne, 5 Ohio 305, and in Pennsylvania, in the case of Campbell v. Richardson, 1 Dallas, 131. Our statute is silent in this respect, and the only way in which the recogni-. zance can be made to operate as a lien, is to merge it in a judgment. It then, under the general provision concerning judgments, becomes a lien from the last day of the term at .which the judgment is recovered. The phrase, “ to be levied of your goods and chattels, lands and tenements,” was necessary at common law, as it indicated the intention of the party to bind his estate. Having no such effect here, it is introduced as form, without any regard to its original meaning. It may be rejected without affecting the validity of the recognizance. The character and legal effect of the obligation, under our statute, being so materially different from the one at common law, no good reason is perceived for requiring the same strictness and precision in matters of form. The obligation in question, though not technically, is substantially in the form of the common law recognizance. In the one the party acknowledges that he is held and firmly bound to pay ; in the other, that he owes and is indebted. This language, though variant in form has the same force and meaning. There is no difference in the conditions of the obligation. The mere difference in form, where there is none in substance, should not, in our opinion, vitiate and annul an obligation entered into in good faith by the parties, for the double purpose of releasing the accused from custody, and of securing his appearance to answer the accusation preferred against him. The supreme court of Indiana, in the case of Kearns v. The People, 3 Blackf. 334, held an obligation in the form of a penal bond, similar to the one before us,- to be valid and binding as a recognizance, and affirmed a judgment that had been recovered for the penalty, in a proceeding by scire facias.

Other questions, chiefly of a technical character, arising on the record, will now be considered.

It is insisted, that in order to render the recognizance valid and binding, there must have been a complaint on oath ; an arrest of the accused; an examination of witnesses; prob-, [* 481] able cause shown that he was guilty of a specific offence, and a decision of the magistrate that bail be given, or the accused stand committed. None of the proceedings before the magistrate, but the recognizance of the accused, and of the witnesses on the part of the prosecution, are required to be sent up to the circuit court. The recognizance stands by itself. It is only necessary that it should set forth substantially the offence charged. *498This recognizance states that Van Amberg had been found guilty of the crime of passing counterfeit money, and that for the purpose of releasing him from custody, it was executed. This implies that the requisite preliminary proceedings were had. Besides, the recognizance when filed becomes a matter of record, and the presumption from it is, the charge was regularly preferred and investigated, and the proper decision made, before it was entered into and acknowledged. McCarty v. The State, 1 Blackf. 338; The People v. Blankman, 17 Wend. 252.

It is further insisted, that the recognizance was not entered into and acknowledged before any authorized officer. The statute requires a justice of the peace, before whom a person is brought, charged with the commission of one of certain specified offences, among them the one specified in this case, to associate with himself some neighboring justice, and authorizes the two together to take bail for the appearance of the prisoner, or commit him to jail, in default of his giving the bail required. R. L. 221; Gale’s Sbat. 239. Two justices then were authorized to take bail in the present case. The persons approving of the recognizance respectively affixed to their signatures the letters J. P. These characters are understood to be an abbreviation of the term justice of the peace; one in common use, and clearly indicating that that office is intended. It'sufficiently appears that the bond was entered into before, and approved by two justices. It is objected, however, that it does not appear of what county they were justices. It is true that justices of one county have no authority to take bail for the appearance of an individual before a court of another county. But in this case, two justices having acted by requiring the accused to appear in the circuit court of Madison county, the presumption here is, that they acted within the scope of their authority, until the contrary is shown. The circuit court, as a matter of convenience, takes cognizance of the fact who are justices of the peace for the county in which it is held, and proof of the official character of these officers is never required, unless that particular question is directly in isspe. The circuit court of Madison county having acted in the case, and decided that the individuals approving of the recognizance were justices of that county, this court, on the evidence before it, cannot say [* 482] that the decision was improper.

On a review of the whole case, we are,of the opinion that the judgment of the circuit court should be affirmed with costs.

YouNG, Justice,

delivered the following dissenting opinion: As I do not concur in the opinion expressed by a majority of the court, I will briefly state the reasons for my dissent. The decision, as I understand it, though probably not so intended by the court, does away with all distinction between penal bonds *499and recognizances, in our criminal proceedings, by allowing the former to be substituted for the latter; and introduces a new rule of construction, which I consider at variance with the common law, our own statutes, and the long settled and well defined precedents, as heretofore recognised and understood both in England and in this country. ,

A recognizance 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 Blac. Com. 341; 1 Chit. Crim. Law 90. Recognizances, in criminal cases, are either that the party shall appear before the proper court to answer such charges as are, or shall be made against him, that he shall keep the peace, or be of good behavior. Witnesses are also required to be bound in recognizance to testify. 2 Bouvier’s Law Diet. 329.'

A recognizance, when forfeited, is made absolute, and has all the force and effect of a judgment. It is allowed a priority in point of payment, and binds the lands of the cognisor. 4 Blac. Com. 452; 3 Tomlin’s Law Diet. 297. A recognizance, not taken by a court of record, is not, however, strictly a record until it is filed and entered in a court of record. 2. Tidd’s Pract. 984-5, 1035.

In regard to the process whichissues upon it, it is said in 6 Bac. Abr. 104, 108, that a scire facias is a judicial writ founded on some matter of record, as a recognizance, to show cause why the plaintiff shall not have the advantage of that record; and that a recognizance is considered as a judgment, being an obligation solemnly acknowledged and entered of record. In 2 Tidd’s Pract. 982 et seq., a recognizance is classed among judgments, In Shuttle v. Wood, 2 Salk. 564, Holt C. J., says, in speaking of the effect of a recognizance of bail, “ In this court (the King’s Bench), the course is always to enter them (i. e. recognizances of bail) as taken, in this court, though taken actually by a judge at his chambers; and in this court they are not taken in a sum certain as in the common pleas; neither are they a record until entered ; but in the common pleas it is a record immediately upon the first caption, and binds the lands before it is filed at Westminster; and when it is filed, then it is a record in [* 483] court, and a scire facias or debt lies upon it either in Mid-dlesex where filed, or in London where taken,” etc. A recognizance, therefore, stands for a judgment itself, and when default is made, and a forfeiture taken, a scire facias at once goes, requiring the cognisor to show cause why execution shall not issue for the sum mentioned in such recognizance.

A penal bond, or rather a bond or obligation is defined to be a deed whereby the obligor or person bound obHgés himself, his heirs, executors, and administrators, to pay a certain sum of money *500to another at a day appointed. If the bond be without a condition, it is called a single one-; but there is generally a condition added, that if the obligor does some particular act, the obligation shall be void, or else shall remain in full force. The principal sum is usually one half of the penal sum specified in the bond. 1 Tomlin’s Law Diet. 257.

The remedy on a penal bond is by action of debt or covenant. On the forfeiture of the bond, the whole penalty was formerly recoverable at law; but the courts of equity in England interposed and would not permit a man to take more than in conscience he ought, to wit, his principal, interest, and expenses, or the damages sustained upon the non performance of covenants and the like. And since the statute of 4 and 5 Anne, eh. 16, the same rule prevails in the courts of law. The process is a summons or capias ad respondendum, and there is no lien upon the obligor’s lands until a judgment is regularly obtained against him in court. No trial or judgment can be had without an actual service of the process, while execution may be awarded on a recognizance, upon two returns of non est inventus, without any personal service at all.

A recognizance and penal bond, therefor, differ in almost every essential particular; and to decide now, after so long an acquiescence in the legal distinction which has always been taken in the courts of England and in this country, that the one may be substituted for the other, under our statute, will instead of simplifying the proceedings in such cases, introduce confusion and uncertainty into our system of precedents, which will be productive of infinitely more mischief than that which is intended to be remedied by such a departure from the .old and well established landmarks of the law.

It may, nevertheless, be said, that the only difference in the matter of form consists in this; that in the penal bond the obligor promises to pay a specified sum ; whereas in the recognizance the cognisor acknowledges himself to owe and be indebted in the like' sum. But is there not also this further difference ; that by the recognizance, the cognisor agrees in case of default, that the sum specified may be levied on his goods and chattels, lands, and tenements ; while no such agreement is ever incorporated into [* 484] a mere penal bond ? It is this feature more than any other, which would seem to give to the recognizance, in case of forfeiture, the effect of a judgment. In the case of Dewitt v. Osborn, 5 Ohio, which is referred to by the majority of the court, Collet, J., who delivered the opinion of the court, said : “ That in England they (i. e. recognizances) were liens, may be inferred from their forms, ‘ to be levied upon your goods and chattels, lands and tenements,’ but that such was not the case in Ohio.” In this, respect the laws of Ohio differ from the laws of *501this state; it being determined under the laws of that state, that a judgment must first be obtained on recognizance, bv scire facias, before a lien can attach to the defendant’s lands; while by our statute no such judgment is necessary. ■

The bond in this case was taken under the 5th section of the “ act to regulate the apprehension of offenders, and for other purposes,” approved January 30,1827. There is no provision in that act, “ that recognizances shall not be set aside or adjudged insufficient, for want of form.” That provision in the law, is to be found in the 165th section of the criminal code, and relates exclusively to such recognizances as are required to be taken after the finding of the indictment. This, however, would not change my opinion, as to the proper form of the recognizance, as I do not suppose the legislature intended to do away the distinction which has always existed between such instruments.

There is no difference between a single bond for the payment of money, and a promissory note, except that the seal or scrawl which is attached at the end of the maker’s name; and yet this scrawl, simple as it may seem, changes the whole character of the instrument. The name is changed, the action to enforce the remedy is different, and the judgment is different; and although many of these distinctions may appear too technical and refined. for the purposes of justice; still it seems advisable, so long as the law is studied and practised as a science, to consider it as the safer way, in the general, to observe them. I am therefore of opinion, for the reasons I have mentioned, and for other defects apparent upon the record, that the judgment of the court below ought to have been reversed.

Scates and Catón, Justices, also dissented.

Judgment affirmed.