Evening journal., 1897-09-27
EVENING JoURNAI. MONDAY. SEPTEMBER 81 1897

againSt the accused IN one case, Wnile |
the recognizance of the ac-
Cused in another and similar case. for
the sole reason that the accused in the |
one case had furnished q surety and in
the other had not. Any rule permitting
such glaring inequalities in the admin
istration Of criminal justice cannot be
tolerated.
1t is true, as urged in argument, that
the liability of a mere surety is strictis-
simi iuris; that he has a right to stand
upon the terms of his contract; and
that it's terms are not TO be extended by J
implication. But the terms of the con-
tract. as here referred to, are not. in a
legal sense, necessarily confined to the
expressed words clothed in their COM
mon law meaning. To ascertain the
terms of the contract, any statute eA
isting when the undertaking was enter
ed into and applicable to its scope and
operation, must be considered in con-
nection with the language employed in
the contract. For, as was said by thel
court in McCracken V. Hayward, 2 How.
606, GA, mo agreement or contract cam
create more binding obligations than
those fastened by the law. which the
law creates and attaches TO contracts.
same legal effect as if expressed in the
contract. They form a portion of itsl
terms. Whatever may be the relevancy
CT the doctrine of strict construction in
favor of sureties to the solution of ul-
terror questions, the statute having
been found to apply TO a contract it has
no proper application to the provision
Of Section COZ for the purpose of ascer-
Ia frf M OF bar. a oaetfou opplfqc a
recognizance with surety. Such a con-
tention seems to involve the inconsist-
ency Of assuming that the section oper-
ates in case of such a recognizance in
order TO show that it cannot so operate;
for unless it enters into and forms part
of the contract of the surety, the doc
trine of strict construction is irrelevant.
Section COZ is a remedial statute; and
should be literally construed for the
advancement of justice Whether or
not a recognizance for appearance and
answer in a criminal cause comes with
in its purview must be determined by
fair and reasonable Interpretation
and construction of the terms and pro-
visions of the section, in aid Of its gem
eral purpose Endlich, in his Interpre-
tation of Statutes, Section 107, says Of
remedial acts:
THE object of this kind of statutes
/ being to cure q weakness in the Old
/ law, to supply an omission, to enforce
a right, or TO redress a wrong, IL is but
| reasonable to suppose that the Legisla-
ture intended to do so as effectually
/ broadly and completely, as the Ian
guage used, when understood in its
most extensive signilicatiOn, would in
dicate."
This doctrine is too well settled toad
NIT Of dispute. 1t is recognized as a
canon Of the law. The general purpose
of Section 602 Is plain. II is that the
administration of justice by district
court shall not, through vacancy in
] the office of judge, be defeated or un-
duly impeded; that causes, civil and
criminal, shall. Notwithstanding the
vacancy. be preserved in their full force
4 and vitality to be effectively proceeded
in when there is Judge capable of dis
charging the functions Of the court
that all acts and steps, calling for OF
n serving as the basis of judicial action
which otherwise must or should earlier
be done or taken in court in the pro
gress of a cause shall or may be done
or taken therein after the termination
of the vacancy.
1t cannot reasonably be supposed tina
i Congress, in enacting Section 602, in
i fact intended that it should not apply
i to recognizance in a criminal cause
i It is not to be assumed that it was the
purpose of the law making body to sac
rifice substance and retain the shadow;
to throw away the kernel and preserve
i the shell: to continue the writs, plead
ings, and other proceedings in a crimi-
Il nal prosecution until after the termi-
nation of the vacancy. and at the same
time to render them ineffectual by per
hitting the escape Of the accused
through the expiration, during the va
cancy of the recognizance. the giving
of which was exacted as the CON
dition of his discharge from
custody. Such an intention would be
4 irreconcilable with the spirit and broad
purpose Of the statute. The question
then, is whether the terms and provi-
sions of the section properly interpreted
and construed are comprehensive
I enough to include a recognizance fol
II appearance and answer in a crimina
cause. As the term 'pleadings' is inap-
plicable if the recOgniZance be within
the section ID must come under pro.
cess" or proceedings" The lega
meaning of the wCrd process" varies
according to the context. subject mat.
ter and spirit Of the statute in which il
occurs. The process of the court in It's
! narrowest sense means the writs and
mandates of the court under The sea
n thereof. In this sense il is used in sec
tions 91i and 912 of the Revised Stat.
utes: in the former of which it is pro
vided that "all writs and processes is
suing from the courts of the United
States shall be under the seal of the
court from which they issue, and shall
be signed by the clerk thereof" and, in
the latter that "all process issued from
the courts of the United States shall
4 bear test from the day of such issue
In its largest sense, process is equiva-
| lent to procedure, including all the
steps and proceedings in a cause from
/ its commencement to its conclusion In
i Wayman v. Southland, 10 Wheat T. q
! Chief Justice Marshall, in delivering
the opinion of the court. spoke of the
words modes of process, as contained
in section 2 Of the act of Congress OF