Kearns v. The State, 3 Blackf. 334

Blackford, J. ICearns was indicted at the October term of-the Hendricks Circuit Court, 1831, for adultery; and process on the indictment was issued against him. . An endorsement on the process required the sheriff to-take hail, and to bind Kearns and his surety in the sum of 100 dollars each, for Kearns' appearance, &c.

The sheriff, upon serving the process, took from Kearns and his surety an obligation as follows:— “ Know all men by these presents,' that we John Kearns and Thomas Samuel, are held and firmly bound unto, the state of Indiana, in the penal sum of 100 dollars each; for the true payment of which, well- and truly to be made, we bind ourselves, our heirs, &c., as witness our hands-and seals, this 22d day of October, 1831.

The condition-of the above obligation is such, that should the above’hound John Kearns personally be and appear before the judges of the Hendricks Circuit Court, on the first day of their next April term, to be holden at, Danville, then and there to answer unto the state of Indiana, on a certain charge exhibited against him for living in adultery, and to such other matters and things as may then and there be charged against him, and not depart thence without leave of said Court, then the above obligation to. be void, otherwise to remain in. force. John Kearns, [L. S.j — Thomas Samuel, [L.

Sfj Signed and sealed in my presence, and by me approved. Tho. Nichols, Sheriff, H. C.” This obligation, together with the process, was returned te the Court on the first day of the April term,. 1832; and Kearns, being then called, failed to appear; and Samuel being called to bring Kearns into the Court, also made default.

The Court thereupon ordered, that the recognizance be forfeited; that the state recover of Kearns and Samuel, severally, the amount of the recognizance; and that several writs of scire facias issue against the recognizors, to show cause why execution should not issue against them for the amount of the said judgment. In September, 1832, a scire facias issued, requiring the sheriff to summon Kearns to appear before the judges of the Hendricks Circuit Court , on the first day of their next Oclb. term, to be holden at the Court house in Danville,'on the third Monday in said month, to show cause, &c.

At the October term, 1832, this scire facias was returned, not found. An alias scire facias was then issued, which was afterwards, at the April term, 1833, also returned, not found,. On the. return of the alias scire facias, Kearns being called and failing to answer, the Court awarded execution against him for 100 dollars, which was the amount of the obligation, together with costs. ■ .

Kearns, the plaintiff in error, contends, that the obligation executed by him for his appearance to the indictment, is a penal bond and not a recognizance; and that therefore an action of debt, and not a scire facias, was the remedy for its forfeiture.

The provision of the statute under which this objection is taken, is as follows: — “it shall be the duty of the Circuit Court, to make an order fixing the amounts in which each person indicted shall be held to bail, and the clerks upon issuing process against such person, shall endorse upon the process, a memorandum of the said amount of bail required; and the sheriff,-in taking security for the appearance of such indicted person, shall govern himself accordingly; and recognizances; for the appearance of any person accused of offences, taken and acknowledged before a proper officer, shall not be void for the want of form.” R.

C. 1831, p. 197. A recognizance is not usually signed or sealed by the cognizor. It is witnessed by the record of the Court in which it is taken, or to which it is returned by the officer who takes it: It is an obligation of record, entered into before some Court of record, or before some officer duly authorised, with a condition to do some particular act. 2 Bl. Comm. 341. The obligation before us is in a certain penal sum, conditioned for Kearns’ appearance at Court. The only objection against its being a recognizance is, that it is signed and sealed by the party.

We do not conceive that the signature and seal can,' of themselves, prevent this instrument from being considered a recognizance. To determine its character, we have only to inquire whether it has been duly acknowledged before the proper officer. The sheriff, who was authorised to take the recognizance, certifies, on the face of the obligation, that it was signed and sealed in his presence, and approved of by him. This certificate settles the question.

The obligation .was duly acknowledged before the proper officer; and it cannot be a substantial objection to its character as a recognizance, that the acknowledgment was made under the hand and seal of the party, instead of being only verbally made. The instrument is, in substance, a valid recognizance. If there be any defect in its form, that is cured by the statute under which it was taken. It is also contended, that the scire facias states no time for the defendant’s appearance to show cause.

The sheriff is commanded, by the writ, to summon the defendant “to appear before the judges on the first day of their next Octb. term, to be holden on the third Monday in said month.” It is said that Octb. expresses no particular month. This objection is too slight. The abbreviated word could not be mistaken. But strike it out and also the words “in said month,” and the writ then requires the defendant’s appearance at Court “on the first day of their next term,” which is sufficiently explicit.

It is further objected, that two returns of “not found” to a scire facias, do not authorise the state to proceed’ as if the writ had been served. According to our statute, if the sheriff cannot find the defendant, he may return the scire facias “not found.” R. C. 1831, p. 412.

The return of “not found,” therefore, is similar to that of nihil, and as, according to the books of practice, two returns of nihil are equivalent to a service, so must also, under the statute, be two returns of “not found.” There is, besides, in the act relative to justices of the pea,ce, an express provision that two returns of nihil or of “not found,” shall be deemed equivalent to a service of the scire facias. It is probable, from the general mode of expression, that this provision was intended to be general, and not to be confined to writs of scire facias in the particulár case mentioned in the

section in which the provision is inserted. Rev. Code, 1831, p. 309. The last objection of the plaintiff in error is, that the Court erred when, after declaring the recognizance forfeited, they gave judgment that the state should recover the amount mentioned in the recognizance. This objection is only as to a matter of form. The judgment rendered in this case, is nothing more than what is implied by the declaration of forfeiture. It is for the amount of the recognizance which was already declared forfeited, and may be considered merely as surplusage.

A part of this judgment as it stands, is, that a scire facias should issue against the defendant, to show cause why execution should not issue for the amount; which is the same proceeding that would have taken place, had the judg- ■ ment complained of not been rendered. There is nothing in the objection. W. W. Wick, for the plaintiff. W. Herod, for the state. Per Curiam. The judgment is affirmed with costs.