guilty, for a bailable offense, or for not finding sureties to recognize for him, may inquire into the case and admit him to bail. But the amount of such bail or recognizance shall not be reduced by said justices of the peace and quorum, if the supreme judicial court is in session in the county, or if a justice of such court is resident in the town where the accused is confined.25

(k) The supreme judicial court in session in each county shall appoint from the number of justices of the peace for that county, one or more commissioners whose duties and powers shall be as prescribed in the following section, and who shall hold office at the pleasure of the court.

When a person is confined in a jail for a bailable offense, or for not finding sureties on a recognizance, any commissioner appointed under this act on application may inquire into the case and admit any such person to bail, and exercise the same power as any justice of the supreme judicial court can, and may issue a writ of habeas corpus and cause such person to be brought before him for this purpose, and may take such recognizance.26

17. All the examinations and recognizances, taken by a magistrate under this chapter, shall be certified and returned to the county attorney or clerk of the court at which the accused is to appear, on or before the first day of its session; and if the magistrate neglects so to do, he may be compelled by rule of court, or if that is disobeyed, by attachment for contempt.27

WHEN PROSECUTIONS MAY BE DISCONTINUED.

18. When a person is recognized or committed by a magistrate, or is indicted for an assault and battery, or other misdemeanor, for which the party injured has a remedy by a civil action, except felonious assaults, assaults upon or resistance of an officer of justice in the execution of his duty, and assaults and batteries of such officers, if the injured party appears before the magistrate or court, and in writing acknowledges satisfaction for the injury, on payment of all costs, the court may stay all further proceedings and discharge the defendant; the magistrate may discharge the recognizance, supersede the commitment by his written order, and discharge the recognizance of the witnesses.28

(1) This section is not applicable to recognizances under c. 27, § 47, R. S.

25 R. S. c. 133, § 16.-26 Public Laws of 1873, c. 137.-27 R. S. c. 133, § 17.—28 R. S. c. 133, § 18.

19. Any order discharging recognizances shall be filed in the office of the clerk of the court at which the party and witnesses are to appear; and an order superseding a commitment shall be delivered to the jailer; and if so filed or delivered, and not otherwise, shall bar all remedy by civil action for such injury.29

REMEDIES ON RECOGNIZANCES.

20. When any person, under recognizance in a criminal case, fails to perform its condition, his default shall be recorded, and process shall be issued against such of the conusors as the prosecuting officer directs, but no costs shall be taxed for travel in the suit; but any surety may be discharged by paying to the county treasurer, before or after process, the amount for which he is bound as surety, with costs, if any, or depositing it with the clerk of the court where the recognizance is filed.80

(m) The right to enforce a recognizance does not depend upon the guilt or innocence of the accused.31

(n) The remedy provided by statute is only cumulative to the common-law remedy for a breach of the condition of a recognizance.31

21. When the penalty of any recognizance in a criminal case is forfeited, on scire-facias against principal, sureties, or witnesses, the court, on application of any defendant, may remit all or any part of the penalty; or the sureties may surrender the principal in court at any time before final judgment on scire-facias, and be discharged by paying the costs of suit; but if a principal has been thus surrendered twice, and is again released on bail in the same case, the sureties in such third, or any subsequent recognizance, shall not be so discharged."

(0) Although the provisions of this section seem to be general, they do not apply to recognizances taken in prosecutions under R. S. c. 27, § 47, for selling intoxicating liquors in violation of law.

22. No action on such recognizances shall be defeated, nor judgment thereon arrested, for any omission to record a default of the principal or surety at the proper term, nor

29 R. S. c. 133. § 19.-30 R. S. c. 133, § 20.-31 State v. Boies, 41 Me. 844.-2 R. S. c. 133, § 21.

for any defect in the form of the recognizance, if it can be sufficiently understood, from its tenor, at what court the party or witness was to appear, and from the description of the offense charged, that the magistrate was authorized to require and take the same.

33

(p) A recognizance must recite the cause of caption; and one conditioned that the defendant should appear in court from day to day during the term does not furnish a foundation for a writ of scire-facias.84 A party cannot be required to come into court actually in session, to answer "such matters and things as shall be objected against him," without any specific charge being set forth But in a recognizance containing the requirements of the statute, the clause "to answer to such matters and things as may be objected against him," may be rejected as surplusage.34a may other extra-statutory provisions.346

So

(q) Scire-facias can issue from no court but the one having possession of the record upon which it is issued, and hence may be made returnable at a criminal term.34

(r) A writ of scire-facias referring to no charge against the defendant, and containing no reference to any charge against him in any complaint or indictment, is bad, and insufficient to authorize proceeding to trial,34

55

(s) A recognizance is amendable in accordance with the truth even after suit is commenced upon it; although such amendment may render the recognizance void and defeat the suit. 85

(t) A recognizance taken by a police judge before whom the examination was had, after the officer, in pursuance of a mittimus duly issued upon the default of the defendant to recognize, had taken the prisoner into his custody and departed from the police court, and before full commitment thereon, is void.

23. Bail in criminal cases, at any time before default upon their recognizance, may exonerate themselves by surrendering their principal into court, or to the jailer in the county where the principal is held to appear, and delivering to the jailer a certified copy of the recognizance; and the jailer shall receive and detain such principal; and any person, so surrendered, may be afterwards bailed in the same manner as if he had been committed without recognizance. After such default, bail may surrender their principal, as before provided, and the court, on application therefor, being satisfied that the default of the principal was not with the consent or connivance of the bail, may remit the whole or any part of the penalty.86

33 R. S. c. 133, § 22.-34 State v. Brown, 41 Me. 535.-34a State v. Hatch, 59 Me. 410-346 State v. Crowley, 60 Me. 103.-35 State v. Young, 56 Me. 219.-56 R. S. c. 133, § 23.

(u) FORMS IN CRIMINAL PROCEEDINGS.

1. Complaint for assault and battery.

STATE OF MAINE.

[Name of county], ss.

To J. S. H., esquire, a trial justice in and for the county of

J. B., of in the county of —, [laborer], on the day of in the year of our Lord one thousand eight hundred and seventy — in behalf of the State of Maine, on oath complains, that J. C., of, in said county of —, yeoman, on the day of —, in the year, &c., with force and arms, at, in said county of (in and upon him, the said J. B., in the peace of said State, then and there being, an assault did make, and him, the said J. B., did then and there beat, wound, and ill-treat, and other wrongs to the said J. B. then and there did, to the great injury of him, the said J. B.), and against the peace of said State and contrary to the form of the statute in such case made and provided.

Wherefore the said J. B. prays that the said J. C. may be apprehended, and held to answer to this complaint, and further dealt with relative to the same as the law directs.

, in said county of —, this

Dated at- of our Lord, &c.

STATE OF MAINE.

[Name of county], ss. On this

day of, in the year J. B.

day of, in the year of our Lord, &c., the above-named J. B. personally appeared and made oath to the truth of the foregoing complaint.

2. Warrant.

Before me,

J. S. H., Trial Justice.

STATE OF MAINE.

[Name of county], ss.

To the sheriff of said county of, or either of his deputies, and to either of the constables in any town in said county. [L. S.]

GREETING.

You are hereby required, in the name of the State of Maine, forthwith to arrest and bring before me, the subscriber, a trial justice, in and for said county, or some other trial justice in and for said county, the said J. C., named in the foregoing complaint, to answer to said complaint this day made on oath before me, said justice.

Given under my hand and seal, at —, in said county of, the day of, in the year, &c. J. S. H., Trial Justice. Frequently there is a command to summon witnesses for the State, inserted in the warrant, next before the date, as follows:

"And you are in like manner required to summon the complainant, and also A. B., of —, in the county of —, [addition] to appear and give evidence touching the matter contained in said complaint, when and where you shall have the said J. C.",

3. Officer's return.

A. D.,

STATE OF MAINE.

[Name of county], ss. Pursuant to the within warrant, on the day of I arrested the within-named J. C., and have him before J. S. H., esquire, a trial justice in and for said county, for the purpose therein mentioned. J. C., Deputy-sheriff.

FEES, &c.

When he has summoned any witnesses under a clause in the warrant, he may also return the facts of summoning the witnesses.

The commencement and conclusion of complaints may generally be the same as the one already given; and any other offense set out may be substituted for that between the parentheses. When a different form is necessary, it. will be given at length.

4. Recognizance for further examination.

STATE OF MAINE.

[Name of county], ss. Be it remembered, that on the day of, in the year of our Lord one thousand eight hundred and J. C., as principal, and E. G. and H. L., as sureties, all of in said county of -, personally appeared before me, J. S. H., esquire, one of the trial justices for the county of and acknowledged themselves to be jointly and severally indebted to the State of Maine, in the sum of - dollars, to be levied on their goods or chattels, lands or tenements, and in want thereof, upon their bodies, to the use of said State, if default be made in the performance of the condition hereunder written.

The condition of the above recognizance is such, that whereas the said J. C., on this day of, A. D. —, has been brought before me, the said justice, at in said county of -, by virtue of a warrant in due form of law, issued under the hand and seal of me, the said justice, on complaint on oath of J. B., of -, &c., wherein the said J. B. complains that, [here recite the substantive allegations of the complaint]; and upon being arraigned on said complaint, has pleaded not guilty thereto; whereupon, for good cause, it was ordered by me, the said justice, that the further examination of said prosecution be adjourned to the day of A. D. - at o'clock in the noon, at my office in-, in said county of -, and that the said J. C. recognize in the sum of dollars, with sufficient sureties in the like sum, for his personal appearance before me, the said justice, at the time and place to which the said examination stands adjourned as aforesaid, then and there to answer further to said complaint, abide the order of me, the said justice, and stand committed until he recognize as aforesaid.

Now, therefore, if the said J. C. shall personally appear before me, the said justice, at my office in-, in said county of, on the