Opinion
(December Term, 1864.)
1. A judge, being possessed of jurisdiction over the person of a prisoner by any proceeding before him, may adjudge that he be allowed bail, and make an order that his recognizance be taken by a justice or justices of the peace, named by him, in a sum fixed by him; and a recognizance taken according to the order is valid.
2. An instrument of writing, executed with intention to comply with such an order, in form a bond, signed and sealed by the prisoner and his surety, on the prisoner's being let out of prison, and received by the justices named, by them returned to the proper court, and by its order filed as a record, is a recognizance.
3. Taking a recognizance consists merely in making and attesting a memorandum of the acknowledgment of a debt due to the State, and of the condition on which it is to be defeated.
4. Presenting a petition to a judge for a writ of habeas corpus gives him jurisdiction of the subject, and the parties may waive all errors and dispense with all forms in the proceedings on it.
5. Where a petition for a habeas corpus was presented to a judge, in order that the petitioner might be admitted to bail, and the judge gave no formal judgment, but informally expressed his opinion in writing on the petition that the prisoner was entitled to bail, and signed his name officially to a sheet of paper, that a writ might issue if the parties desired it; and, by the consent of the solicitor for the State, suggested that bail might be taken without any further proceedings on the petition, and fixed the amount in which bail should be taken, and named the justices of the peace to take it, and the prisoner was afterwards discharged from prison on his entering into a recognizance, together with the defendant as his surety, in the sum fixed by the judge, before the justices named by him, and the prisoner and defendant subscribed their names and affixed their seals to the recognizance: this is plenary proof of a waiver of all errors in the proceedings.
6. It seems that the defendant would be estopped by the recital that, "upon application to the judge, he had ordered that the prisoners be allowed bail in the sum of $2,000 each, and had authorized the two justices to taken the recognizance."
(464) THIS was a scire facias to show cause why an execution should not issue on a forfeited recognizance, and was tried before Reade, J., at BUNCOMBE Spring Term, 1864, on the plea of nul tiel record.
The State gave in evidence a record of the Superior Court of Law of Buncombe County, setting forth that at Spring term of that court, "B. J. Smith and W. W. McDowell, justices of the peace of said county, brought into court paper-writings of the tenor following, to wit:" (Here was inserted the petition of J. A. Shock and five others, addressed to the Hon. William M. Shipp, one, etc., praying for a writ of habeas corpus. in order that they might be bailed.) The record then proceeded: "Upon the facts stated in this petition, I think the parties entitled to bail. Therefore, by the suggestion of the solicitor, without the formality of a writ, and to save trouble and expense, I suggest that they be admitted to bail in the sum of $2,000 each, and that B. J. Smith (465) and W. W. McDowell take bond for their appearance at the first Superior Court to be held after this time. If the suggestion is not adopted, the writ must issue above my name, which is signed near the bottom of this sheet. W. M. SHIPP.
5 February, 1864. "W. M. SHIPP, J. S.C. L. E."
Know all men by these presents, that we, J. A. Shock, Carol Walton, James T. Holbert, Daniel Mayberry, G. W. Walker, and B. M. Edney, are held and firmly bound to the State of North Carolina in the sum of $2,000, for the faithful payment whereof we hereby bind ourselves, our heirs, executors, and administrators.
The condition of the above obligation is such: Whereas, the above bounden, J. A. Shock, Carol Walton, James T. Holbert, Daniel Mayberry, and G. W. Walker, have been committed to the common jail in and for the county of Buncombe in said State, charged with the crimes of larceny, robbery, and burglary; and whereas, on application to the Hon. W. M. Shipp, one of the judges of the Superior Courts of Law and Equity in and for said State, he has ordered that the said last parties be allowed bail in the sum of $2,000 each, the bond to be received by B. J. Smith and W. W. McDowell, justices of the peace: now if the said J. A. Shock, Carol Walton, James T. Holbert, Daniel Mayberry, and G. W. Walker, and each of them, shall well and truly make their and his personal appearance before the judge of the (466) Superior Court of Law to be held in and for the county of Buncombe aforesaid on the sixth Monday after the fourth Monday in April, A.D. 1864, and if they and each of them shall well and truly make their and his personal appearance before the judge of any court of oyer and terminer that may be ordered to try criminal cases in and for the county of Buncombe aforesaid, at any time before the said Superior Court, and not depart the Court aforesaid until lawfully discharged, then the above obligation to be void; otherwise, to remain in full force and effect. And it is expressly understood that the above bond is for the several appearance of the last named parties; and that the forfeiture is to be the forfeiture of the said sum of $2,000 for the default of each and every one of the said last named parties.
Test: (Signed) P. C. WALTON, [SEAL] (Signed) JAMES T. HOLBERT, [SEAL] His (Signed) DANIEL X MAYBERRY, [SEAL] mark. (Signed) J. A. SHOCK, [SEAL] (Signed) G. W. WALKER, [SEAL] (Signed) B. M. EDNEY. [SEAL]
Approved: W. W. McDOWELL, J. P.
Approved: B. J. SMITH, J. P.
And the said papers and recognizance were ordered by the court to be entered of record and were duly entered accordingly, and at the same term of the court the following proceedings were had, to wit:
(467) "The said defendant is called on his recognizance, and failed to answer and appear. Let scire facias issue according to law. Judgment nisi against the defendant and his surety, B. M. Edney, for the sum of $2,000."
The court adjudged that there was no such record as is supposed by the scire facias.
The State appealed.
Attorney-General for the State.
W. H. Bailey for defendant.
In support of the plea, "nul tiel record," the defendant takes three grounds. This Court is of opinion that neither is tenable.
1. "The judge had no power to authorize the justice of the peace to take the recognizance."
When a judge, in a proceeding initiated before him, adjudicates that the party is entitled to be discharged on giving bail, and fixes the amount, it has long been the practice in this State, if the party be not prepared with sureties, for the judge to authorize one or more justices of the peace, named by him, to take the recognizance; and recognizances so taken have heretofore, as far back as the memory of the members of this Court extends, always been deemed valid. This practice has prevailed so long, and is so obviously for the ease of the citizen, that we would not be justified in now putting a stop to it, unless satisfied that it is in violation of some important principle of law. It is true, a judicial function cannot be delegated; but after the judge has decided that the party is entitled to be discharged on giving bail, and has fixed the amount, all of the questions presented by the proceedings are disposed of, and nothing remains to be done but to carry the adjudication into execution; and there is no reason why the judge may not authorize a justice of the peace to do it; for all he has to do is to pass on the sufficiency of the surety, and to attest the fact that the recognizance is entered into. The former involves no question of law, but is a matter of fact, which may be ascertained by one man, who is authorized to administer (468) an oath, as well as another; and although in strictness it may be deemed an act of a judicial nature, it affords rather a technical than a substantial objection to the practice. The latter is a mere ministerial act, which requires no exercise of judgment, either in respect to a matter of law or of fact, and is done by hearing the recognizance and making and attesting a "minute" or memorandum by which a formal recognizance may be afterwards drawn up. For instance: "A. B. recognized in $1,000 to appear at, etc." "C. D. recognized as surety in a like sum." In S. v. Hill, 25 N.C. 398, Judge Ruffin sanctions the practice and intimates an opinion that it may be supported on the ground that a justice of the peace has power, virtute officii, to take recognizances; and the effect of the order of the judge is simply to enable the justice to obtain control of the body, which he could not otherwise do, having no power to issue a writ of habeas corpus. So the authority conferred by the judge is not a delegation of a judicial function, but the substitution of one judicial officer in place of another, in respect to a minor part of the proceeding, the main questions having been disposed of.
2. "The judge made no adjudication allowing the prisoner to give bail, and no order authorizing the justice of the peace to take the recognizance."
It is true, an adjudication that the prisoner is entitled to be discharged on giving bail is not formally set out, and there is no formal order authorizing the justices to take the recognizance. But these things are done in substance, and all errors are waived by consent. The facts are: the petition is filed, and the judge decides that the writ should issue, and for this purpose signs his name officially, and directs the formal words to be inserted, and the writ to issue, if necessary; but for the sake of saving "expense and trouble," with the consent of the solicitor for the State, he expresses his opinion that on the facts stated the petitioners are entitle to be discharged on giving bail for their (469) appearance, fixes the amount at $2,000 for each, and suggests that the recognizance be taken by two justices of the peace, whom he names, without the formality of a writ. This suggestion is accepted and acted on. The justices named treat the matter as if the judge had allowed the prisoners to give bail, and authorized them to take it. This is done with the consent of the solicitor, and of the prisoner, and of the defendant, who was offered as surety, and they admit under their hands and seals that, "upon application to the judge, he had ordered that the prisoners be allowed bail in the sum of $2,000 each, and had authorized the two justices to take the recognizance," which is done, and the prisoners thereupon discharged.
There is force in the suggestion that, on the authority of Iredell v. Barbee, 31 N.C. 250, and United States v. (sic), 2 Brockenborough, 115, these admissions, made in a solemn manner and acted on for the benefit of the prisoners, amount to an estoppel, and conclude the parties from gainsaying the matters admitted. However this may be, it is clear that if the admissions do not operate by way of estoppel, they constitute plenary evidence of consent to "waive all errors" and dispense with all parts of the proceeding preliminary to taking the recognizance which it was in the power of the parties to dispense with.
It is true, "consent cannot confer jurisdiction"; but we are of opinion that the jurisdiction of the judge attached, and the proceeding was regularly constituted before him, by filing the petition; and all errors of form could be waived, and all formal parts of the proceeding be dispensed with, by consent. For instance, if the parties consent that the body need not be produced, and, on the return, setting out "the cause of detention," the judge disposes of the question, his ruling is binding. This shows that, after the proceeding is regularly constituted, the parties may, by consent, treat the production of the body as a matter of (470) form, and dispense with it, although it is usually the most important part of the proceeding, and the judge cannot dispose of the matter unless the body is produced, or considered as present, by consent, and error waived.
So, after the petition is filed, if the parties submit the questions on a "case agreed," waiving, by consent, the necessity for issuing a writ, I apprehend the ruling would be binding; for the purpose of the writ is simply to compel the production of the body, together with the cause of detention; and if that purpose be answered, the writ may be treated as matter of form, and waived by consent. Our case is stronger, for the judge signed his name officially, with directions to insert the formal words; and the writ, so far as his action was concerned, had issued, and further proceedings on it were dispensed with by consent.
It is also true that it was irregular for the judge to give his opinion that, on the facts stated, the prisoners were entitled to be discharged on giving bail, and to fix the amount and name the justices of the peace before and in anticipation of the consent of the prisoners to waive errors and dispense with formal proceedings; but, as this consent was afterwards, while the proceeding was pending, given in the fullest manner, the irregularity was cured; and it would have been an idle form for the judge to repeat his opinion, and to state the amount of the bail, and name the justices of the peace a second time.
3. "The recognizance is not in due form, and was not taken as authorized by the judge."
We stated, under the first head, what is necessary in order to take a recognizance.
These requisites are complied with. The signing and sealing by the prisoners and defendant were not necessary to give validity to the recognizance; but, in respect to that, it does no harm; and in respect to the consent to waive errors, etc., we have seen, under the second head, that it had a very important bearing. (471)
Whether the defendant can be made to pay more than one sum of $2,000, by a proper construction of the instrument, is a question not presented in this case.
There is error. Judgment reversed and judgment for the State according to scire facias.
Cited: S. v. Houston, 74 N.C. 176; s. c., ib., 550; S. v. Jones, 100 N.C. 440; S. v. White, 164 N.C. 410.