delivered the opinion of the court:
The record and assignment of errors present two questions: First, Is the scire facias sufficient in law to authorize and sustain the judgment? And, second, Did the Court err in deciding that there is such a recognizance as that mentioned in the scire facias? In disposing of this case, we do not deem it necessary to determine what remedies the State may legally have to enforce a recognizance, regularly and legally entered into, and taken to or for the benefit of the State, with a condition that the same shall be void upon the doing or not doing some act or thing to be done or forborne; or whether the remedies given by the common law have been taken away or modified by the statute in force in this State; and therefore we would be understood as confining our remarks .simply to the case before us, and the facts and circumstances presented by it.
Upon an inspection of the instrument on which this proceeding was based, the Court determined that there was such a recognizance as that in the writ mentioned; but upon what principle it was so held, we are wholly unable to discover; for surely no one would attempt to maintain that such an instrument carries with it any of the evidence which in law distinguishes a recognizance from other obligations. The language is not such as is appropriate in a recognizance, nor is the legal effect and operation the same, but wholly different, both in form and effect, while it bears no intrinsic evidence of the authenticity and legal sanction requisite to impart to it the high obligation of a recognizance; in addition to which, it does not appear to have been made in anywise a matter of record, without which, if it did not differ from a recognizance in other respects, it would not, by the common law, have the force and effect of a recognizance; nor could the recog-nizee maintain scire facias upon it. Bac. Abr., Execution, 330; 2 Saund. R. 8 i. n. (5); ii. 71, b. in note; Jacob's Law Dictionary, title Recognizance. And we are not aware of any statutory provision in force in this State, giving to the obligee this remedy, upon such an instrument as the one before us, which, in language and form, is but a common bond with collateral condition, executed without any apparent necessity or legal obligation on the part of either of the obligors to enter into such obligation, for the personal appearance of one of them at a certain time and place, to answer a criminal matter, with which he does not appear at that lime to have been in any legal manner charged, and which does not appear to have been taken by any person authorized by law to require or receive such obligation of all or either of the parties by whom it purports to have been executed. It cannot therefore be regarded as a recognizance, nor indeed an obligation of record, the execution of which may be obtained by a writ of scire facias. Nevertheless, it may perhaps be obligatory upon the parties by whom it was executed, as a common law bond, not of record, and, as such, might possibly constitute a valid ground of action, and warrant and support a recovery against them. This, however, is not now a question before us, and we would not be understood as even intimating any opinion in regard to it, either the one way or the other. We are, therefore, clearly of the opinion that the evidence adduced did not support the issue on the part of the State, and that the Court erred in deciding that there was such a recognizance as that mentioned in the writ. Having thus shown, as we conceive, satisfactorily, that the evidence adduced on the trial did not, support the issue, or warrant the Court in giving judgment against the appellant, we will now proceed to dispose of the questions arising upon the demurrer of the State to his first plea, which, as the appellant abided by and did not waive it, according to the well settled principles of law and rules of practice, involves an inquiry as to the sufficiency of the prior pleading, and, in this case, the validity of the writ, which, in some respects and to some purposes, stands in the place of a declaration. There is no declaration in a proceeding by scire facias-, and as the defendant is at liberty to plead to it, it must disclose such facts as in law entitle the plaintiff to this particular remedy, but also to have what he prays for in the writ; otherwise, it must be adjudged insufficient, and unless the defects be aided or waived by the defendant, no valid judgment can be pronounced against him upon it. In the present case, no infirmity in the writ is aided or waived by any act of the appellant; consequently, its validity must depend solely upon the facts which it discloses. We have therefore only to ascertain whether it states such facts as show the plaintiff legally entitled to this remedy, and the matter prayed for in the writ. If it does, it is sufficient; otherwise, it is not, A scire facias, as known to the common law, is a judicial writ, founded upon some matter of record, as a recognizance, either at common law or by statute, judgment, letters patent, and the like, to enforce .the execution of them, or to vacate and set them aside: 2 Saund. 71, n. (4). And it must pursue the terms of the judgment or other matter of record upon which it is founded: Panton vs. Hall, 2 Salk. 598; 6 Jacob's Law Dictionary, p. 23. And if the design of, it is to obtain execution of a judgment or recognizance, there must be a prayer for execution; otherwise, the writ will be insufficient and not amendable: 2 Saund. b. n. 2; 2 Com. Dig. (R. 2). And if the condition of the recognizance be set forth, a breach must be shown: 2 Saund. 71, in notes. It will he seen, at a single glance, that the writ issued in this case does not, in some of its most essential features, conform to the requisitions of the law. For instance, it in no wise appears that the recognizance mentioned is of record in that or any other Court; or that it was acknowledged or entered into before that or any other Court, or before any person authorized by law to take it; or when, or where, or by or before what Court or person it was acknowledged or taken; or that there has been no execution or satisfaction thereof; nor is execution prayed in legal form; but in these, as in some other respects, it is fatally defective, and wholly fails to show in the State any right of action, or right to have execution against the appellant. And therefore we do not think it necessary to inquire into the validity of the plea. ‘ As no legal demand of any legal right was made by the State in the writ, the judgment, on the demurrer to the plea, ought to have been in favor of the appellant, without regard to the sufficiency of his plea. The judgment is reversed.