Recognizance - Encyclopedia

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RECOGNIZANCE (from Lat. recognoscere, to acknowledge), a term of English law usually employed to describe an obligation of record, entered into before some court or magistrate duly authorized, whereby the party bound acknowledges (recognizes) that he owes a personal debt to the Crown, with a defeasance, i.e. subject to a condition that the obligation to pay shall be avoided if he shall do some particular act - as if he shall appear at the assizes, keep the peace, or the like. The system of taking recognizances in favour of the Crown at an early date superseded the common law practice as to pledges and main-prize (see re Nottingham Corporation, 1897, 2 Q.B. 502, 514).

Blackstone's definition extends the term recognizance to bonds in favour of private persons. But at present it is rarely if ever used in this sense. Recognizances are now used almost solely with reference to criminal proceedings. In the Court of Chancery it was the practice to require recognizances from the guardian of a ward of court that the ward should not marry or leave the country with the privity of the guardian and without the leave of the court. The security given by a receiver appointed by the High Court is still in the form of a recognizance acknowledging a debt to named officers of the court, and securing it on the real and personal estate of the receiver.

By an act of 1360 (34 Edw. III. c. 1), extended to Ireland by Poyning's Act, and by the terms of the commission of the peace, justices of the peace have jurisdiction to cause to come before them or any one of them "all those who to any one or more of our people concerning their bodies or the firing of their houses have used threats to find sufficient security for the peace or their good behaviour towards us and our people; and if they shall refuse to find such security, then there in our prisons until they shall find such security to cause to be safely kept." The security taken is by recognizance of the party and his sureties, which can be forfeited on conviction of any offence which is a breach of the conditions of the recognizance.

The procedure under the act of 1360 and the commission is usually described as exhibiting articles of the peace or swearing the peace. The High Court (King's Bench Division) has the same power as justices in quarter sessions. This procedure is in practice superseded in England, so far as concerns courts of summary jurisdiction, by an equivalent but more modern procedure (42 & 43 Vict. c. 49, s. 25). Recognizances ordered under these enactments cannot be forfeited or as it is termed estreated without an order of court made upon proof of breach of the conditions, or of a conviction involving such breach. The procedure for estreats is governed by the Levy of Fines Acts 1822 and 1833, and by 16 & 17 Vict. C. 30, S. 2.

There is also a general jurisdiction on conviction of misdemeanour to put the offender under recognizances to keep the peace and (or) be of good behaviour in addition to or in substitution for other punishment. This power is specifically applied by the Criminal Law Consolidation Acts of 1861 to all indictable misdemeanours punishable under these acts, and power is given to put persons convicted of any felony (not capital) punishable under the acts under a recognizance to keep the peace. On refusal to enter into recognizances as above, the court may order imprisonment for the refusal, limited in cases within the acts of 1861 to twelve months, and in cases within the act of 1879 to six months.

The recognizances above described may be described as a form of punishment or a judicial security for good conduct. Recognizances are, however, most used with reference to proceedings before conviction and judgment. In preliminary inquiries into indictable offences the inquiring justices take recognizances to ensure the attendance of the accused if liberated during any adjournment, and on committal for trial take the recognizances of the accused (if allowed bail) to attend the court of trial and take his trial, and of the prosecutor and the witnesses for the prosecution or defence to attend and prosecute or give evidence. As to witnesses this power was first given in 1554 (1 Ph. & M. c. 13). The procedure is regulated by the Indictable Offences Act 1848 (ii & 12 Vict. c. 42) as amended in 1867 (30 & 31 Vict. c. 35) and the forms of recognizance are scheduled to the act of 1848. In the case of inquisitions of murder or manslaughter taken before a coroner a similar procedure is followed (Coroners Act 1887, 50 & 51 Vict. c. 71, s. 5). The recognizances taken are returnable under penalty to the court of trial, which orders their estreat in the event of breach of the conditions.

Similar powers as to the recognizances of persons prosecuted summarily are given by the Summary Jurisdiction Acts 1848 and 1879; and in the event of appeals to quarter sessions or by special case to the High Court from courts of summary jurisdiction, recognizances or security are required from the appellant (42 & 43 Vict. c. 49, ss. 31, 33). On the transfer of indictments from inferior to superior courts recognizances to pay the costs on conviction are also required (Crown Office Rules, 1906). In certain cases the police have authority to give bail to accused persons on their entering into a recognizance; and governors of prisons are allowed to release prisoners on bail on compliance with the terms on which it is allowed by the committing justices.

By the Land Charges Act 1900 (63 & 64 Vict. c. 26, s. 2 (1) a recognizance, whether obtained or entered into on behalf of the Crown or otherwise, does not operate as a charge on land or on any interest on land or on the unpaid purchase money for any land, unless a writ or order for the purpose of enforcing it is registered under s. 5 of the Land Charges, &c., Act 1888 (51 & 52 Vict. c. 51) in the office of the Land Registry. This enactment is clearly applicable to receivers' recognizances, supra; and on purchases of land search is made for registered recognizances and an official certificate can be obtained affirming or negativing the existence of a registered entry (Conveyancing Act 1882, s. 2). By s. 30 of the Bankruptcy Act 1883, a discharge in bankruptcy does not release the debtor from debts on a recognizance unless the Treasury certifies in writing its consent to the discharge.

By ss. 32, 34 of the Forgery Act 1861, it is made felony to forge recognizances, and to acknowledge them in the name of another without lawful authority is also felony (24 & 25 Vict. c. 98).

In Scotland the place of recognizances is filled by cautions; a caution in "law-burrows" corresponds very nearly to a recognizance to keep the peace.

In the United States recognizances are used for much the same purposes as in England. (W. F. C.)

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