Smith v. State

COLLIER, C. J.

— The questions made by the assignment of errors, are—

1. Is it allowable to embrace the principal recognizor and his sureties in a judgment nisi, upon the failure of the former to appear at court, in obedience to the condition of his recognizance ?

2. Is a solicitor, or other attorney, prosecuting- a scire facias, on such judgment nisi, to final judgment, entitled to have a fee taxed in the bill of costs ?

1. No objection has been pointed out to the rendition of a judgment, against the principal and his sureties in the same entry. If the entry itself describe the recognizance, so that the particular sum for which each recog-nizor is bound, and the nature of his undertaking be shown; and the judgment charge each to the extent of his liability, and no farther, we cannot conceive that it would be erroneous. But if such objection ever was available, it was entirely removed by the act of eighteen hundred and thirty-three. “An act to simplify scire fa-cias in criminal cases, and for other purposes” — (Aik. Dig. sec. 41, p. 121.)

2. The act of eighteen hundred and nineteen, which prescribes the fees to which solicitors shall be entitled, on every conviction on indictment or presentment, does not embrace the case at bar — (Aik. Dig. sec. 3, p. 46.) Yet the statute of eighteen hundred and twelve, in regard to fees in general, (Aik. Dig. 189,) directs that an attorney and counsellor at law shall be entitled to a fee of six dollars, for prosecuting or defending a suit in the Superior court.

A proceeding by scire facias, upon a forfeited recognizance, is clearly a suit, and for its successful prosecution, the attorney may, with propriety, claim, instead of five, a fee of six dollars, to be taxed in the bill of costs.

The judgment must be affirmed.