The Opinion of the Court was delivered by
Purple, J.*In this case a writ of scire facias was issued upon a forfeited recognizance, entered into at the May term of the Morgan Circuit Court, by Charles Crisman, as principal, James Babbitt and William Read, together with the plaintiffs in error as sureties, for the appearance of the principal at the next Circuit Court of said county, to answer to an indictment for larceny.
The recognizance, which is set out in hsec. verba in the scire facias, was taken, acknowledged and entered of record in open Court.
It is joint and several, and in other respects in the usual form.
The plaintiffs were served with process, and the same was returned nihil as to Charles Crisman, Babbitt and Read. The writ was issued from the Morgan Circuit Court to the Sheriff of Scott county, and executed and returned by him. The plaintiff appeared and moved to quash the writ, which motion was overruled; and in default of further answer, judgment was rendered against them that execution issue for the amount of said recognizance. Two points are relied on to reverse the judgment.
1. That the Circuit Court erred in issuing process to the county of Scott.
2. That no judgment awarding execution could be entered against the plaintiffs without service upon all the cognizors, or two returns of nihil as to those not served.
The last question has been fully considered and settled in the case of Sans v. The People, decided at the present term of this Court. (Ante, 327.) In that case it is held, that the recognizance being joint and several, the scire facias upon it is in the nature of a several process against each, the object of which is, to obtain execution according to the force and effect of the recognizance.
There can be no doubt about the jurisdiction of the Court. It had full power to send its process to any county in the State, where the plaintiffs, or any of them, resided or might be found.
It is a universal rule, that recognizances must be prosecuted in the Court in which they are taken or acknowledged, or to which they are by law returned.
The cognizors, by the acknowledgment of this recognizance, had already submitted themselves to the jurisdiction of the Court. The scire, facias is not the commencement of a suit, within the meaning of our Practice Act, prohibiting suits against defendants from being brought out of the county where they may reside; but a judicial writ to have execution upon a debt of record.
There is no error in this proceeding. The judgment of the Circuit Court is affirmed with costs.*
Judgment affirmed.
Wilson, C. J. and Justices Lockwood and Young did not sit in this case.
A petition for a re-hearing was filed in this cause, and denied. There was a second case between the same parties, depending upon the same state of facts and questions of law, and the same judgment was rendered.