Parrish v. State
Josiah Parrish v. State
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Opinion of the Court
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Tuck, J.,
delivered the opinion of this court.
If, under any state of things, the judge sitting for Frederick county had authority to recognize the party to appear at Carroll Circuit court, we must assume the existence of facts warranting the exercise of the jurisdiction, upon the principle “that the judgments of inferior jurisdictions will not be reversed except for errors apparent, and will be sustained by every fair legal intendment in favor of their correctness.” State, use of Beall vs. Harrison, 9 Gill & Johns, 15. In that case, a sheriff’s bond was taken to be valid, though executed after the 1st of January, because the orphans court had power to take and approve such bonds after that time, when tendered by the person returned to the executive as second on the poll, on the occurrence of a vacancy, and in the absence of an averment to the contrary, it was presumed that such a state of facts may have existed, authorizing the approval of the bond on which the suit was brought.
We suppose that there can be no doubt that if this party had been brought before the court on a habeas corpus, to be discharged from alleged illegal arrest, and it had appeared that *246 the imputed offence was committed in. another county, he might have been recognized to appear before the court having jurisdiction of the offence. And, so, if indicted in Frederick county Circuit court, and it had appeared on the trial that the crime was committed in Carroll county, the indictment might have been quashed for the purpose of having him indicted and tried in the last named county, and the accused recognized accordingly. Hence, this record does not necessarily present a case of excess of jurisdiction on the part of the Circuit court of Frederick county, in taking the recognizance.
But conceding, which we do not, that the circuit court had not power to take the recognizance, that being a power to be exercised by the judge, can it make any difference that the recognizance was taken in open court? If the judge had left the bench and taken the recognizance, no objection could have been urged against it. Is the act void because accompanied by the forms and solemnities of a judicial tribunal? Surely not. It is the act of the judge having power of himself to perform it, and is not less efficacious because done in court. We are informed, however, that it has been exercised by the common law courts in session, and never before questioned, as far as we are aware.
We are of opinion that the judgment on demurrer was erroneous, for the third reason assigned in argument. According to the recitals in the scire facias, it appears to have been a several recognizance, and not a joint one. However some expressions of the writ may indicate a joint liability, it appears from the recitals as to the acknowledgment of indebtedness, the mode of levying the amount, the calling and forfeiture, and the averment of non-payment, that the parties undertook each for himself, and not for the other. These obligations are generally taken in the several form, so as not to bind the sureties for the liability of the party accused, and although this is not according to the phraseology to be found in the precedents used in this State, we think the intent of the party iu binding himself, as well as the legal intent, will be observed by treating the recognizance as several. 2 Ev. Har., 295. In Collins vs. Prosser, 3 D. & R., 112, and same case in 1 B & C., *247 682, where' the words of a bond were, “ for which payment we hind ourselves and each of us, for himself, for the whole and entire sum of one thousand pounds, each,” it was held to be a several obligation. There appears to be little difference between the cases, and the same construction should be applied to both.
(Decided July 15th, 1859.)
We have decided the case without reference to the agreement filed in this court, because the judgment was on demurrer; and if the agreement were accepted as the basis of our opinion, we should be trying a case not passed upon by the judge below, to say nothing of the anomaly of deciding an issue in law upon facts other than those admitted by the pleadings. Coates Glenn vs. Sangston. 5 Md. Rep., 121.
Judgment reversed and procedendo.
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