This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A recognizance, in the correct use of the term, is an obligation of record entered into either before a court of record or before a magistrate authorized by law to take such recognizance, conditioned to be void upon the doing of some specified act, otherwise to be in full force and effect.1 "A recognizance at Common Law was an obligation entered into before soma court of record or magistrate duly authorized with a condition to do some particular act, as to keep the peace or appear and answer to a criminal accusation. It need not be signed by the party entering into it."2 A recognizance thus was in form a judgment by confession, with a clause of defeazance.3 The condition is construed strictly.4 On breach of the condition, the recognizance became absolute. The fact that the party on whose appearance in court the recognizance was conditioned remained in the city,5 or was recaptured,6 did not prevent enforcement of the recognizance. It must be entered of record. "It can exist only of record. It must be proved of record."7 "A recognizance differs from a bail bond merely in the nature of the obligation created. The former is an acknowledgment of record of an existing debt; the latter, which is attested by the signature and seal of the obligor, creates a new obligation."8 A parol recognizance is invalid.9 It need not, however, be entered on record upon the day that it was taken.10
The element of mutuality is wanting; for judicium redditur in in-vitum." ..." We may concede that an action on a foreign judgment is an action ex contractu; but that there is, within the meaning of the statute a cause of action which arose within the state, permits of grave doubt and puts a severe strain on what seems to be plain language." 167 N. Y. 509.
11 Wolffe v. Eberlein, 74 Ala. 99; 49 Am. Rep. 809; Lovins v. Humphries, 67 Ala. 437.
1 Shainwald v. Lewis, 69 Fed. 487; Schuyler, etc., Bank v. Bradbury, 56 Kan. 355; 43 Pac. 254; Mead v. Bowker, 168 Mass. 234; 46 N. E. 625; Whiteside v. Catching, 19 Mont. 394; 48 Pac. 747.
2 Epling v. Dickson, 170 Ill. 329;
48 N. E. 1001; reversing 61 Ill. App. 78; Kimball v. Whitney, 15 Ind. 280; Burnes v. Simpson, 9 Kan. 658; U. S. Bank v. Dallam, 4 Dana (Ky.) 574; Bullard v. Bell, 1 Mason (U. S. C. C.) 243; Tyler v. Winslow, 15 O. S. 364.
3Stockwell v. Coleman, 10 O. S. 33; Fries v. Mack, 33 O. S. 52. Contra, Todd v. Crumb, 5 McLean (U. S. C. C.) 172; Barber v. International Co., 74 Conn. 652; 92 Am. St. Rep. 246; 51 Atl. 857; Jordan v. Robinson, 15 Me. 167; Richards v. Bickiey, 13 Serg. & R. (Pa.) 395.
4 Pease v. Howard, 14 Johns. (N. Y.) 479.
5 Doyle v. West, 60 O. S. 438; 54 N. E. 469.
6 Doyle v. West, 60 O. S. 438; 54 N. E. 469 (semble).
1 Black. Com. II., 341; State v. Walker, 56 N. H. 176; 178; State v. Kruise, 32 N. J. L. 313; State v. Crippen, 1 O. S. 399.
2 People v. Barrett, 202 Ill. 287, 297; 95 Am. St. Rep. 230 (238); 67 N. E. 23. Citing Shattuck v. People, 4 Scam. (Ill.) 477; 2 Black. Com. 341.
3 Adair v. State, 1 Blackf. (Ind.) 200; Pugh v. State, 2 Head (Term.) 227.
4State v. Murdock, 59 Neb. 521; 81 N. W. 447. (A recognizance conditioned to appear at a given term is not binding for appearance at a later term.)
5 Parkman v. Bartlett, 173 Mass. 475; 53 N. E. 906. (A civil action, in which such party did not appear, but after default judgment remained in the city until he obtained his discharge in insolvency.)
6 Reed v. Police Court, 172 Mass. 427; 52 N. E. 633.
7 State Treasurer v. Merrill, 14 Vt. 64, 65. " Without record there is no recognizance." Mendocino County v. Lamar, 30 Cal. 627, 629; People v. Huggins, 10 Wend. (N. Y.) 464.
8 People v. Barrett, 202 Ill. 287, 297; 95 Am. St. Rep. 230 (238) ; 67 N. E. 23.
9 Bloomington v. Heiland, 67 Ill. 278.
l0McNamara v. People, 183 Ill. 164; 55 N. E. 625.
At early Common Law a recognizance was a very common method of securing a debt.11 This is to-day closely paralleled by cases in which a judgment has been confessed for future advances.12 At Modern Law the use of recognizances is almost wholly confined to criminal or bastardy proceedings.13 The binding force of the recognizance arises out of the act of the court; hence a recognizance need not be signed by the recognizor, unless the statute specifically requires it,14 and if signed, the signature may be treated as surplusage;15 but if the magistrate or officer is not authorized to take the recognizance,16 or if taken in any other manner than that prescribed by law,17 as where it is not conditioned with reference to any criminal charge,18 it is invalid.
Where a recognizance is required a bond cannot be given as a substitute therefor.19 A recognizance is sometimes held at modern law to be a true contract.20 The difficulties in making
11 Pollock & Maitland, History-English Law, II., 201, 202 (original paging).
12 Cook v. Whipple, 55 N. Y. 150; 14 Am. Rep. 202; Shenk's Appeal, 33 Pa. St. 371.
13 Even here the term recognizance is often misused, where the obligation is not of record, but is merely a bond for appearance and the like. People v. Mellor, 2 Colo. 705; New Haven v. Roger, 32 Conn. 221; In re Brown, 35 Minn. 307; 29 N. W. 131. "The bond in question is substantially a recognizance." Vierling v. State, 33 Ind. 218, 219. It is in some cases distinguished from a bond. MeMieken v. Commonwealth, 58 Pa. St. 213.
14McXamara v. People, 183 Ill. 164; 55 X. E. 625; Gay v. State, 7 Kan. 394; Madison v. Commonwealth, 2 A. K. Mar. (Ky.) 131; Irwin v. State, 10 Neb. 325; 6 X. W. 370; King v. State, 18 Neb. 375; 25 X. W. 519; Porter v. State, 23 O. S. 320.
15 Irwin v. State, 10 Neb. 325; 6 X. W. 370; King v. State, 18 Neb. 375; 25 X. W. 519.
16 Clink v. Russell, 58 Mich. 242; 25 X. W. 175.
17 Irwin v. State, 10 Neb. 325; 6 N. W. 370. (Omission of designation of official character of officer taking recognizance.) State v. Pratt, 148 Mo. 402; 50 S. W. 113. (The statute in effect required the recognizance to be taken and signed in the presence of the officer who is to take it.)
18 Cannon v. Commonwealth, 96 Va. 573; 32 S. E. 33.
19 Comfort v. Kittle, 81 la. 179; 46 N. W. 988. This is not true in states which treat recognizance and bond as synonymous terms. New Haven v. Rogers, 32 Conn. 221.
20 State v. Weatherwax, 12 Kan. 463. (Holding that a minor's recognizance for his own release is valid as a contract for necessaries, and saying that a recognizance, while "more than a contract" at Common such classification are that in criminal matters at least, the agreement is with the state in its sovereign capacity,21 and that the recognizance has the elements of conclusiveness and finality that belong to a judgment.22
A recognizance was enforceable at Common Law by scire facias.23 Suit may be brought on a recognizance,24 but where the nominal amount of the judgment may be reduced to equal the actual damage, debt will not lie.25