1902 Encyclopedia > Recognizance

Recognizance




RECOGNIZANCE, in law, is, in the words of Black-stone, "an obligation of record, entered into before some court or magistrate duly authorized, whereby the party bound acknowledges that he owes to the king or a private plaintiff (as the case may be) a certain sum of money, with condition to be void if he shall do some particular act,—_ as if he shall appear at the assizes, keep the peace, pay a certain debt, or the like." The term itself means that the person bound recognizes the existence of a debt. Recog-nizance was at one time used as a security for money lent, something in the nature of a mortgage. In this sense it is practically obsolete, though it is alluded to in modern Acts of Parliament, e.g., 27 and 28 Vict. c. 112, by which a recognizance entered into after 29th July 1864 does not bind the land until actual delivery in execution. The principal use of recognizances at the present day is in chancery and criminal procedure. In chancery recognizances are entered into as a form of security by certain persons appointed to positions of trust, such as guardians or receivers. In criminal practice they affect cither suspected or accused persons, or witnesses. As early as 1360 the Act of 34 Edw. III. c. 1 empowered justices to take of all them that were not of good fame sufficient surety and mainprize of their good behaviour. The wide terms of this provision are not acted upon at the present day. The only recognizances of this kind practically enforced are those entered into as security for keeping the peace. Such recognizances are forfeited by any act tending to a breach of the peace. The Criminal Law Consolidation Acts of 1861 provide that any court may on the conviction of a person for an offence under any of the Acts require him in addition to or in lieu of other punishment to enter into his own recognizances for keeping the peace and being of good behaviour. The power to bind witnesses by recog-nizance was originally conferred by an Act of 1554, 1 Ph. and M. c. 13. Recognizances are now the usual means by which a court of summary jurisdiction or a coroner binds over a prosecutor and his witnesses or an accused person and his witnesses to appear at the trial. The pro-cedure principally depends upon 7 Geo. IV. c. 64, 11 and 12 Vict. c. 42 (one of Jervis's Acts), 30 and 31 Vict. c. 35 (Russell Gurney's Act), 42 and 43 Vict. c. 49, s. 31 (the Summary Jurisdiction Act, 1879). In proceedings in error and in appeals from courts of summary jurisdiction to quarter sessions the prosecution of the appeal by the appellant is secured by recognizance. In certain cases police authorities have by recent statutes a limited authority to take the recognizance of accused persons. Failure to comply with the conditions of recognizances leads to their forfeiture. Additional facilities for the enforcing of recognizances were given by the Summary Jurisdiction Act, 1879 (see QUARTER SESSIONS). When recognizances are forfeited they are estreated (i.e., extracted) from the records of the court to be enforced against the defaulter. An appeal against an order of a court of summary jurisdic-tion forfeiting recognizances lies to quarter sessions (3 Geo. IV. c. 46). By 28 and 29 Vict. c. 104 a recognizance does not bind the land in the hands of a bona fide purchaser for valuable consideration or a mortgagee unless actual execu-tion has issued and been registered in the name of the debtor at the central office of the Supreme Court of Judi-cature. Registered recognizances are among the encum-brances for which search is made on a purchase of land. By 45 and 46 Vict. c. 39 an official negative of the exist-ence of registered recognizances may be given by the proper officer on application. A discharge in bankruptcy does not release the debtor from a debt on a recognizance unless the Treasury certify in writing their consent to his discharge (46 and 47 Vict. c. 52, s. 30). Forgery of recog-nizances is a felony punishable by five years' penal servi-tude (24 and 25 Vict. c. 98, s. 32).

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.






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