But he can take no recognisance but only of such matters as concern his office: and if he doth, it seemeth to be void. Dalt. c. 168. dicted at the upon for a conspiracy quarter sessions had entered The King v. Hooper & others, 1 Chitt. Rep. 491. A bill of in- Where a dedictment having been found at the quarter sessions for a conspi- fendant inracy against the defendants, one of whom was an attorney, the latter persuaded the magistrates before whom he was taken a warrant, to take his own recognisance in the sum of 5l. and that of his clerk, a minor, in the like sum, to appear to take his trial upon the indictment, which had been since removed into the court of K. B. by certiorari. On a former day a rule was obtained, calling upon the defendant to shew cause why the recognisance and surety so accepted, should not be discharged, and why he should not enter into more effectual securities adapted to the nature of the offence with which he was charged. In Counsel being heard on both sides, the Court said, that under the circumstances stated upon affidavit, this was an application which might be sustained at the discretion of the Court. taking recognisances, magistrates ought to be left to the exercise of their discretion, without being subjected to the influence of a defendant, however respectable his character and station in life may be. In the present case, the defendant had interfered with the discretion of the magistrates in a manner not to be justified; and as the sureties given appeared not to be sufficient, considering the nature of the crime, the rule prayed for ought to be made absolute. - Rule absolute. into insufficient that K. B. by certiorari, might discharge them on motion, and com pel him to en- securities. 383. to 386. Every obligation and recognisance, taken by justices of the The form of it. peace, must be made to our lord the king: on pain of imprisonment of any person that shall take it otherwise. Dalt. c. 168. It must also contain the name, place of abode, and trade or calling, both of principal and sureties, and the sums in which they are bound. Barl. Recog. p. 454. And it is most commonly subject to a condition, which is either Condition. indorsed or underwritten, or contained within the body of it upon the performance of which the recognisance shall be void. Barl. Recog. p. 454. When the parties are to enter into recognisance, call them by Manner of their names thus; "You A. B. acknowledge to owe to our sove- taking it. reign lord the king, the sum of and you C. D. acknowledge to owe to our sovereign lord the king the sum of; to be levied of your respective goods and chattels, lands and tenements, for the use of our said lord the king, his heirs and successors, if default shall be made in the condition following; that is to say, if you the said A. B. shall make default in appearing," &c. But the parties need not to sign it. Barl. Recog. p. 454. And it is usual for the justices to mark at the foot of the examination, A. B. in 40l. to appear, &c. And from such short Is a matter of record presently. note make out a record afterwards. Barl. Recog. p. 454. Yet the recognisance is a matter of record presently, so soon as it is taken and acknowledged, although it be not made up. Dalt. c. 168. Ld. Coke (1 Inst. 260.) says, that a record is a memorial or re- Whether it membrance in rolls of parchment, &c. From whence it seemeth need be on that a recognisance ought to be ingrossed on parchmént, perhaps, parchment. To be subscribed. 3 H. 7. c. 1. How to be certified. 1 & 2 P. & M. Estreating recognisances. 4 G. 3. c. 10. Barons of the Exchequer im powered to dis charge, upon for this reason, because parchment is more durable than paper: but since there is no law which prohibits it to be ingrossed on paper, it seemeth that if it shall be on paper only, and not on parchment, it is good in law. And when it is made up, if the justice shall only subscribe his name without his seal to it, this is well enough; and that may be in either of these sorts, acknowledged before me, J. P., or only to subscribe his name thus; J. P. Dalt. c. 176. By 3 H..7. c. 1. The justices shall certify their recognisances for keeping the peace to the next sessions, that the party may be called; and if he make default the default shalt be recorded, and the recognisance, with the record of the default, shall be sent and certified into the chancery, king's bench, or exchequer. But by 1 & 2 P. & M. c. 13. In cases of felony, the recognisances are to be certified to the general gaol delivery. Reg. v. Drummond, 11 Mod. 200. Ld. Drummomd stood bound by recognisance to appear in the court of king's bench the first day of the term; and Sir Simon Harcourt, excusing his non-appearance by reason of sickness, moved that his recognisance might be discharged, the attorney-general having orders, and being in court consenting thereto. But Holt C. J. said notwithstanding such consent, Lord Drummond not appearing in person, the Court could not discharge the recognisance, but said, they could respite it till the next term; which was done accordingly. An Reg. v. Ridpath, 10 Mod. 152. Fort. 358. Ridpath entered into a recognisance with sureties to appear the first day of the term to answer (generally), and in the mean time to be of the good behaviour, and not to depart without leave of the court. information was preferred against him by the attorney-general; who, for some defect in the pleading, entered a noli prosequi, and then exhibited a new information. The Court was of opinion that the recognisance extended to all crimes whatsoever that he should be charged with; and that if it should have relation to any parti cular crime only, it must be mentioned in the recognisance, which in this case is only to answer generally; that the inconvenience is not so great as is pretended, the bail in this case being bound in a sum certain, and not to stand in the place of the principal, as in civil cases; and that the noli prosequi is neither a bar nor discharge. R. v. Tomb, 10 Mod. 278. If a recognisance be estreated in the exchequer, because not punctually complied with, yet if the party appear and take his trial next session, he may compound for a very small matter in the court of exchequer; because the effect, though not the exact form of the recognisance, is complied with. The judges of oyer and terminer are the proper judges whether recognisances ought to be estreated or spared; and it is for the advantage of public justice that they should have such power, if upon the circumstances of the case they see fit. And by parity of reason, it should seem that the justices of the peace in the quarter sessions should have the like power in respect of offences cognisable there. In case they shall be estreated, where the offence is not attended with aggravating circumstances, it is enacted by the 4 G. 3. c. 10. as follows: Whereas many recognisances have been estreated into the exchequer against persons for not appearing as parties or affidavit and petition, witnesses in the courts of record at Westminster, or at the assizes, 4 G. 3. c. 10. and general quarter sessions, or other courts of record, for not prosecuting indictments there, or otherwise not performing the recognisances conditions of such recognisances, many of which neglects of duty estreated. have happened by the inattention of ignorant people, some of whom are imprisoned, and others liable to be so, by the process constantly issued against them out of the court of exchequer, though no other prosecution be subsisting, but merely for such. forfeitures of their recognisance, for which there are no easy means at present for poor persons especially to procure any discharge; for remedy thereof, it shall be lawful for the barons of the exchequer, on affidavit and petition by and on the behalf of the person imprisoned or liable to be imprisoned, on the forfeiture of such recognisance, to discharge such person, by order without any quietus to be sued out for that purpose; for which order, no more shall be taken than one pound and one shilling. Provided that no discharge shall be given on such petition, where any debt is due to the crown, other than by the recognisance so prayed to be discharged; nor in any cases of defrauding the revenue by contraband trade, or assaulting the officers of the customs or excise in the execution of their duty, or any person lawfully assisting them therein. The conditions of recognisances in all the variety of cases are interspersed under their proper titles. Recognisance with Sureties. Westmorland. BE it remembered, that on the in the day of in the year of the reign of our lord George the third, of the united kingdom of Great Britain and Ireland, king, defender of the faith, A. O. of county aforesaid, yeoman, and A. S. of- in the county aforesaid, taylor, and B. S. of in the county aforesaid, labourer, personally came before me, J. P. esquire, one of the justices of our said lord the king, assigned to keep the peace in the said county, and acknowledged themselves to owe to our said lord the king; that is to say, the said A. O. the sum of 201. and the said A. S. and B. S. each the sum of 101. separately, and of good and lawful money of Great Britain, to be made and levied of their goods and chattels, lands and tenements respectively, to the use of our said lord the king, his heirs and successors, if the said A. O. shall make default in the condition herein indorsed [or, hereunder written]. Acknowledged before me, J. P. Recognisance without Sureties. Westmorland. BE it remembered, that on the in the day of year of the reign of our lord George the third, of the united kingdom of Great Britain and Ireland, king, defender of the faith, A. O. of in the said county, yeoman, personally came before me, J. P. esquire, one of the justices of our said lord the king, assigned to keep the peace of the said county, and acknowledged himself to owe to our said lord the king, 101. of good and lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said lord the king, his heirs and successors, if he the said A. O. shall fail in the condition under written [or indorsed]. J. P. Then the The condition of the above written [or, within written] recognis- Recusant. See Popery, and Public Worship. What a rescous is. When it shall be tried. Indictment. Exeter Sum. Rescue. RESCOUS is an ancient French word, coming from rescourer, that is recuperare, to recover; and signifies a forcible setting at liberty against law a person arrested by the process or course of law. 1 Inst. 160. It seems that it is necessary that the rescuer should have knowledge that the person is under arrest for a criminal offence, if he be in the custody of a private person: but if he be in the custody of an officer, there at his peril he is to take notice of it. 2 Hale, 606. But is said that to rescue a felon taken on a general warrant, to answer what shall be objected against him, no cause being expressed in the warrant, is not felony. 1 Hale, 578. Nor unless a felony hath been really done. Hale's Sum. 116. Although a prison breaker may be arraigned for that offence, before he be arraigned of the crime for which he was imprisoned, yet he who rescues one imprisoned for felony cannot, according to the better opinion, be arraigned for such offence, as for a felony, till the principal offender be attainted; but he may be immediately proceeded against for a misprision, if the king pleases. 2 Haw. c. 21. § 7. Therefore, if the principal die before the attainder, he shall be fined and imprisoned. Hale's Sum. 116. Also, if the principal be found not guilty, or guilty of a crime not capital, the rescuer ought to be discharged of felony but he may be fined for the misdemeanor. 1 Hale, 598. 599. An indictment of rescous must set forth the nature and cause of the imprisonment, and the special circumstances of the fact in question. 2 Haw. c. 21. § 5. Upon an indictment for an assault and rescue, it appeared that the sheriff's officers having apprehended a man by virtue of a writ 1 East's P. C. against him, a mob collected and endeavoured by violence to 305. rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs having been violently assaulted struck one of the assailants, a woman, and, as it was thought for some time, had killed her; whereupon and before her recovery was ascertained the constable was sent for and charged with the custody of the bailiff who had struck the woman. The bailiffs on the other hand gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which, he proceeded to take them into custody upon the charge of murder, and at first offered to take care also of their prisoner, who however was soon rescued by the surrounding mob: and the woman having recovered, the bailiffs were released by the constable the next morning. Heath J. was clearly of opinion that the constable and his assistant were guilty of the assault and rescue, and directed the jury accordingly; who however acquitted the defendants. A hindrance of a person to be arrested, that has committed Punishment. felony, is a misdemeanor, but no felony but if the party be arrested, and then rescued, if the arrest were for felony, the rescuer is a felon; if for treason, a traitor; if for trespass, fineable. Hale's Sum. 116. 2 Haw. c. 21. § 7. There are also special penalties enacted for rescuing offenders against particular statutes, which belong not to this general title. Although the felony for which a man is arrested, be not within Clergy. clergy, yet the rescuing him is within clergy. 1 Hale, 599. 607. Upon the return of a rescous, process of outlawry shall issue. Outlawry. 2 Haw. c. 27. § 113. Indictment for a Rescue. , yeoman, afore THE jurors for our lord the king upon their oath present, that at |