Evening journal., 1897-09-27


cuse his non-appeaIance or to justify
remission in whole or in part of the
penalty incurred through the forfeiture. |
With respect to the alleged illness OF
the defendant and his inability to ap-
pear on the day of the forfeiture it is |
enough to say that if the motion now
under consideration were an applica-
tion under Section 1,020 of the Revised
Statutes for the remission of the pen
atty, the certificate filed, standing
alone, would not warrant such remis-
sion. 1t certainly cannot avail the re-
cognizors on this motion.
Section 6O2 is as follows
when the Office of judge of any dis
trict court is vacant, all process, plead
ings and proceedings pending before
such court shall be continued of course
until the next stated term after the APP
pointment and qualification of his sue
cessOr; except when such first-mention-
ed term is held as provided in the next
section"
The exception relates to such a va
cancy in any district in a state contain
ing two or more districts, and has no
/ application to the case before this
court. During the continuance of a va
cancy in the office of district judge for
a district, the limits Of which are cock
tensive with those of the state, no other
judge has authority to discharge the
functions of that tribunal. and all judi
cial action must remain in allegiance
until the vacancy be filled; unless a
Judge shall have been designated and
appointed pursuant to law to exercise
i'm such district during the vacancy the
powers and duties attached to the office
.F All. loo Fs.ss hot 4 1t.st.sf f.aN
Whether or not the law authorizes the
) designation and appointment of a
Judge for that purpose is a point left in
doubt by the Supreme Court of the
United States. Mcdowell V. United
States, l59 q. s. 500. But it is unnec-
essary to pass upon this question, as no
judge was designated and appointed to
dicharge the functions of this court dur
ing the vacancy.
It is claimed on behalf of the recog-
nizOrs that the above section applies
only to civil causes. But the language
employed is general and nowhere sug-
gests such a restricted application. Its
meaning cannot be so limited without
doing violence to its terms Nor can
any principle of public policy be con-
ceived of which requires the section so
to be construed. The delay OF failure
of justice is, to say the least, as great
an evil, in criminal as in civil causes.
The section refers to "all process,
q pleadings and proceedings pending be-
l fore" the court. If this provision APP
plies to a recOgnizance for appearance
and answer, so much of il as has such
application, becomes in law incOrpO-
rated into the condition and operates
! in the same manner and with the same
! force as if expressly set forth therein.
/ In Won Hoffman V. City of Quincy,
u Wall 535. $50, the court said
1T is also settled that the laws which
subslst at the time and place Of the
+ making of a contract, and where it Is
Il to be performed, enter into and form
r part Of it, as if they were' expressly
: referred to or incorporated in its terms
! This principle embraces alike those
Il which effect its validity. construction
J. discharge and enforcement"
i- In Walker v. Whitehead. l6 Wall
u 314, 3l7. this doctrine is stated as ont
: Of the "axioms in our Jurisprudence.
u Those who enter into contracts are pre-
D sumed to do so with knowledge of ex.
d isting law applicable thereto and de
= termining their scope and operation
and with intent TO be bound by such
s law This principle affects sure
e ties. as well as principal in any
Z undertaking. A recognizance. II
= section COZ applies to it at ALL will be
e continued in force against both surety
I and principal.
{, 1t is urged on behalf of De Soto thai
u Section 602 cannot operate as against &
n surety in a recognizance for appearance
d and answer on a day certain, without
It extending the undertaking of the sure
IN ~ or fu1poufncr on him brrIar, W %
d he did not assume upon becoming
II party to the contract, and, therefore
d that the section does not apply; and
r further. that in no event can the sec
IS ton be held applicable, unless its ap
t, plicability is beyond all doubt or, tC
It use the language Of counsel, unless it b,
II absolutely clear that the effect was tn,
It one which the Legislature meant shOulC
y, follow from contracting" and that il
/, the statute does not cover the case o.
s suretyship without the possibility o.
= doubt, you might almost say withou
y the necessity of judicial construction, Il
q il does not so cover that it is eyiden
II to the mind of the layman it shoulC
n not be read into the contract" Assem-
cannot be given to either of these prop
d ositions. The application of the sec
y tion to recognizance executed before
II ITS enactment would not in any lega
s, sense either extend the undertaking OF
l. the recognizors or impose on them any
It burden which they did not assume as
IT recOgnizors. Where a public statute
j: presCribes and defines the scope and eff
T. feet of a proposed contract, whatever
e may be its terms, by the execution oi
}, The contract the law so applicable to il
o is as has been shown. adopted as par
of H. and its operation under that Law
is no extension of or addition to it, II
II cannot be otherwise. II Section COZ ex-
o pressly and particularly provided thai
a the recognizance should, in the event OF
n vacancy, be continued in force a;
Is against both surety and principal "un-
til the next stated term after the ap-
pointment and qualification" Of n new
l. Judge, surely no room would be left fol
argument on this point SO. If that sec
d ton, upon proper construction, shall be
y found to have the same meaning con-
n i Vcved bV the express and particular