This was a scire facias on a recognizance, entered into by Harry Freelove and Andrew Garrison, before a justice of the peace, for the appearance of Freelove before the Recorder’s Court of Cook county, to answer a charge of bigamy. The recognizance was returned into that court, and the cause was docketed against Henry Freelove, and he and his bail were called, failed to answer, and a default was entered against them, and a scire facias was awarded. The scire facias was against Henry Freelove and Andrew Garrison, which was served on the latter, but returned not served on the former. The plaintiff in error was called, and failing to plead, a default was entered and execution was awarded against him. To reverse which, he prosecutes this writ of error.
It is objected that Henry Freelove and not Harry Freelove was called and defaulted. While the name of Henry is sometimes corrupted into Harry, yet they are separate and distinct names. We cannot therefore hold that they are the same, unless it were shown by averment and proof. Had the scire facias averred that Harry Freelove and Henry Freelove were one and the same person, and the averment had been sustained by proof, or its truth admitted by the default, the judgment would be sustained. Graves v. The People, 11 Ill. R. 542. But, failing in this, the judgment awarding execution, was erroneous.
It is likewise urged, that the recognizance set out in the scire facias does not appear to have been filed, and become a matter of record in the Recorder’s Court, before the forfeiture was taken. There is an averment in the scire facias, that the “ recognizance was filed in the clerk’s office of the Recorder’s Court, on th’e 25th day of March, A. D. 1858,” and the forfeiture was had at the April term following. The default admits the truth of all the averments in the scire facias, and the party in error cannot contradict that admission. Had the plea of ml tiel record been interposed, the party could have raised the objection, but he has waived that right by permitting the default to be taken. This averment is sufficient to sustain the judgment on the default, and there is no error in not setting out a copy of the endorsement of the filing by the clerk, on the recognizance, in the scire facias.
It was again objected that the scire facias contains no averment that an indictment was presented against the principal cognizor. By the terms of his recognizance, he bound himself to appear on the first day of the next term of the court, and from day to day thereafter, until discharged by the court, and then and there to answer the People of the State, on the charge of bigamy, and to abide the order and judgment of the court, and not depart the same without leave, then his recognizance was to be void, otherwise to be in full force. The plaintiff bound himself by becoming his bail, that the principal cognizor should perform these several acts. And when Freelove failed to appear, and plaintiff in error failed to produce him, when called in open court, at the term to which he had bound himself to appear, the recognizance became forfeited, and the plaintiff in error could not discharge himself from the forfeiture, but by surrendering the principal into custody, before execution was awarded on the recognizance. The provision of the constitution, that “ no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury,” has no application to an appearance according to the terms of his recognizance. The bail had the undoubted right to have surrendered him in open court, before the finding or presentment of an indictment, which would have been a compulsory appearance in court, though it would in neither case have been an appearance to answer a charge of a criminal offense, but to await the presentment of the grand jury. Had he failed to procure bail, he would have been committed to prison, to await the presentment of the grand jury, and yet, it will hardly be contended that such imprisonment would be a violation of this constitutional provision. He was in the custody of his bail, who was his jailer for the time being, and yet, such custody is not a violation of this provision, although he is held by his recognizance and his bail, to answer any criminal charge which might be presented against him, and this too, before the presentment of an indictment.
The judgment of the court below, awarding execution, must be reversed, and the cause remanded, with leave to amend the scire facias.
Judgment reversed.