*497The opinion of the Court was delivered by
O’Neall, C. J.'In this case, I do not think that the defence “ that the paper-produced as the foundation of the sci. fa. is no recognizance,” must be shown by affidavit. The objection may be taken ore terms, as well as in any other way For in a scire facias on recognizance there is no regular pleading, such as nul tiel record. A scire facias on recognizance is a mere rule to show cause why it should not be estreated. If the defence or cause does not appear on the alleged recognizance or scire facias, it must be shown.by affidavit. Here the defect, whatever it is, appears on the paper called the recognizance, and set out in the sci. fa.
The question is, is the paper set out a recognizance ? I am clear that it is not. To be a recognizance, the debt must be confessed in a court of record, before a magistrate, or some one authorized by law to take it. 2 Tidd Pr. 1090, 3. In this case there is nothing to show that "Behre,” before whom it is acknowledged, was in any public capacity. If his official character, showing his capacity to take a recognizance had appeared in the instrument, I should have held that was enough. This paper is in the exact form of the third section of the Act of 1849, 11 Stat. 587. It requires it to be approved by the Commissioners of Boads, before the granting of a license; and if it had appeared by the recitals of the instrument, or even by the attestation, to have been taken by their authority, I would have thought it quite sufficient, or if it had purported to have been taken by the City .Council (who have and exercise the power of granting license), I should have thought that sufficient; but the only public act about it is, that it was filed in the clerk’s office long after it was executed. 10th sect., Act of 1849.- This cannot help a paper such as this to the high rank of a recognizance. In form, it is a bond (although called a recognizance in the Act,) and it may be that it* may be sued and recovered upon as such, as a good common law instrument.
*498There is another objection to the paper as a recognizance; two of the cognizors, Kalb and Claussen, purport to acknowledge the debts by attorney. This is, I think, fatal to a recognizance which ranks with a judgment, not having any lien until confirmed; but still carrying an authority, when confirmed, to be made and levied of the cognizor’s lands and goods.
A warrant of attorney to confess a judgment is void, and, of course, this acknowledgment-here must fail. Rankin & Birch vs. Lawrence & Johnson, 4 Rich. 267.
The motion to reverse the decision below is granted, and the sci. fa. is discharged.
Johnston, and Wardlaw, JJ., concurred.Motion dismissed.