Evening journal., 1897-09-27


or no doubt lha 1t was intende to en-
brace among other things all tile means
by law for compelling one, ar
rested and held on a criminal charge,
TO appear in court, there to be judi
cially dealt with. The section does
not in terms restrict process to pro-
cess Of the court, and in ishe absence OF
such restriction IL cannot he so limited
by construction. Otherwi Sc, distinc-
tlon without any reason to- support Ii
would exist between imprisonment un-
der a bench warrant and imprisonment
under commitment by commits
sioner. IL is true that the word pend
ing" occurs in the section In so far
as it may apply to process, 10. is not to
be taken in the strict sense, contended
for in argument. of pending in court
Such a construction would largely de-
feat the manifest purpose Cf the Sec
tion. A reasonable meaning can be
assigned to the term, without doing
violence to the rules of construction,
which will be in harmony with the
general scope of the enactment In
People v. Lacombe, 80 n Y 43, 49, the
court used the following language, pc
cullarly applicable to the construction
of the section under consideration:
"a strict and literal Interpretation is
not always to be ailered 10. and where
the case is brought within the inten-
ton Of the makers of the ststute It is
within the statute, although by a tech
nical Interpretation is not within its
letter. It is the spirit and purpose of a
statute which are 10 be regarded in it's
Interpretation; and If these find fair
expression in the statute. il should be
so construed as to carry out the legis-
lative intent, even although such con-
struction is contrary to the literal
meaning of some provisions of the stab
ute"
Process pending before" the court
must be held to include process. in the
sense last above mentioned, of which
the object has not been fully accom-
plished. process, which is still in feri
process, which. If continued in force,
will result either in securing the ap-
pearance Of the acculed to meet the
demands Of Justice or In fastening upon
the recognizcrs liability for his default
Imprisonment under a commitment by
a commissioner to answer a criminal
charge is process within the meaning Of
the section 1t is only means of COM
pelling his appearance in court. If the
accused, instead OF going to jail, enters
into a recognizance with surety for his
appearance and answer, he does not
thereby make satisfaction for any Grim
committed by him. or bar a prosecutio
therefor Like imprisonment. it is but
means to secure his appearance. In
ex parte Mlburn, Pet 704, 710. the
court said:
"a recognizance of bail, in a criminal
case, is taken to secure the due attend
ance of the party accu sed to answer the
Indictment. and to submit to a trial
and the Judgment of the court thereon
1t is not designed as q satisfaction foI
the offence. when It is forfeited and
paid: but as a means of compelling The
party to submit to the trial and pun
ishment which the law ordains for his
offence"
Indeed the giving of bail by the ac.
| cused for his appearance in criminal
cause is a substitution OF custody al
the hands of his surety for imprison
ment by the jailor. In Taylor v. Tain
| tor rs Wall 366, 371. the court said:
when bail is given, the principal I.
! regarded as delivered to the custody o
| his sureties. Their dominion is a con.
tinuance of the original Imprisonment
/ Whenever they choose to do so, they
may seize him and deliver him up IN
their discharge; and If that cannot be
done at once, they NAV imprlson him
until 1t can be done. They may exer.
else their rights in person or by agent
/ They may pursue him into another
state: may arrest him on the Sabbath
/ and, if necessary. may break and enter
his house for that purpose. The seiz.
ure is not made by virtue of new pro-
| cess. None is needed. It is likened Ia
the rearrest by the sheriff of an escap-
/ ing prisoner. In 6 Modern it is said
The bail have their principal on a
string. and may pull the string when
ever they please, and render him in
their discharge The rights of the bail
in civil and criminal cases are the
/ same"
An instructive case in this connec-
/ ton is Amis V. Smith, 16 Pet. 303. II
/ furnishes a strong analogy. In that
case it was held that a bond with Sc
curity. as provided for by a statute OF
| Mississippi. conditioned for the forth
coming. on the day appointed for the
sale. OF personal property levied on by
virtue of final process in a civil cause
was part of the final process and as
such adopted. by section Of the act of
Congress Of May 10, 1923, in a civil
cause in a district court of the United
States exercising circuit court powers
in Mississippi. There, personal prop
erty was discharged from The custody
Of the marshal on an undertaking that
it should be delivered 20 him on the
| day appointed for the sale. Here, a
person charged with a criminal offence
is released from arrest on an under
/ taking that he shall appear and answer
in court. There. the object of the forth
! coming bond was that the property
should be delivered TO the marshal to
be dealt with according TO law. Here,
the object Of the reoognizance is that
| the accused shall deliver himself or be
/ delivered to the court to be dealt with
according to law. There, tine fOrthcom-
/ ing bond was substituted for the GUS
tody of the properly by the marshal.
Here, the recognizance is substituted
| for Imprisonment Of the accused by the
/ iailer. The court said
IF the forthcoming bond is apph-