Andress v. State

Stevens, J.

Proceedings had by scire facias upon a recognizance. The allegations contained in the scire facias are these: That on the 3d day of January, 1831, a recognizance was filed in the office of the clerk of the Shelby Circuit Court, stating, that on the 19th day of October, 1830, Thomas A. Andress <md John Andress personally appeared before one A. M. Smith, who signs himself a justice of the peace of said county of Shelby, and severally acknowledged themselves to owe -to the state .of Indiana, the sum of 250 dollars each, to be levied, áre,, conditioned that if Thomas A. Andress should personally appear at the next Circuit, Court, to be h'olden for the said county on the first day of the term, then and there to answer a certain charge of larceny, áre.? and abide the'judgment of'the Court, áre.'; and that, afterwards, at a Circuit Court of the county, held- in March, 1831, the said -Thomas and1 John were severally called and defaulted for non-attendance; and the. recognizance forfeited and made absolute. . These are alb the substantial alie-.gations-the scire facias contains. The defendants filed two special pleas in bar, .which were demurred to a-ndthc demurrers-sustained, and final 'judgment rendered in favour of the state, that Ishe have exception, áse. . .

Three points are made, for our consideration: — 1st, that the recognizance is pot a judgment on which an execution can issue, and that when-the recognizance was forfeited, a j udgment should have first been, rendered in favour of the state, &c., that she recover the amount named in -the recognizance, áse., which was not done, and therefore the judgment and proceedings are'. erroneous. There is no.error in this brapeh of the proceedings. A recognizance, when forfeited and made absolute,.has all the force and effect of a judgment,-and is defined by Bláckstone to be an obligation of record, which a man enters into béfore some Court of record or magistrate duly authorised, with condition to-do some particular act. It is witnessed' only by the record, and not by the party’s seal. It is allowed a priority in point of payment, and binds the lands of the cognizor. 4 Bl. Comm. 252. In 6 Bac. Abr. 104, and 108, it is said that a scire facias is a judicial writ founded on some matter of record, as a recognizance, áre.; and that a recognizance is considered as a judgment, being an obligation solemnly acknowledged and entered of record. In 2 Tidd’s Prac. 982, 983, 984, a recognizance is classed among judgments. If these authorities are correct, no judgment is entered on a-rccognizance: it stands for a judgment itself, and when default is made, a scire facias at once goes requiring the cognizor to show cause why execution shall not issue.

C. Fletcher, for the plaintiff.

H. Gregg, for the state.

The 2d point is, that there is no averment in the scire facias, showing who filed the recognizance in the Circuit Court, nor that it was taken by a person legally authorised to take recognizances. A recognizance not taken by a-Court of record, is not strictly a record until it is filed and entered in a Court of record. 2 Tidd’s Prac. 984, 985, 1035. Hence it is a matter of substance, arid is material, that a scire facias, on a recognizance not taken in a Court of record, should aver by whom it was taken and filed, and that the person who took it was legally authorised so to do, and that it thereby became a matter of record of said Court, and still so remains, unsatisfied and in full force. This scire facias, in this particular, is wholly defective. It nowhere informs us who took, or who filed the recognizance, or that it was taken and filed by a person legally authorised so to do. 2 Marsh. Rep. 132.—Lilly’s Entries.

The 3d and last point is, that the Court erred in sustaining the demurrers to the defendant’s pleas in bar. These pleas are clearly defective, but the demurrers go back to the first error. They search the scire facias, and whole record, and locate themselves at the first substantial defect. A scire facias, although a judicial writ, must be considered as an original action, to which the defendant may plead, and therefore must contain a legal cause of action on its face. 6 Bac. Abr. 103.—2 Tidd’s Prac. 982. This scire facias, certainly, does not contain any legal cause of action. Although every word on its face may be true, yet the state is not, by such a statement of facts as it contains, legally entitled to execution. It lacks several material averments other than those above pointed out.

It is not necessary, further, to pursue the subject. The record is defective. It contains none of the form, and but little of the substance, of a record on scire facias. A considerable portion of it is a heterogeneous mass of papers and things transcribed, which is not legally any part of the-record.

Per Curiam.

The judgment is reversed. To be certified, &c,