State v. McGuire

Mitchell, J.

This is an action on a recognizance in a' criminal case, entered into in open court by the appellants, as sureties, with one Maride, as principal. All of the appellants joined in a demurrer to the complaint on the ground that it did not state a cause of action. The issue of law on this demurrer was, as to all the appellants except McGuire, brought on for hearing March 30,1889, and the demurrer was, as to them, overruled, with leave to answer in 20 days, on condition that they pay $10 costs, and that the cause be placed on the ensuing May term calendar of the court. On April 20, 1889, on motion of the state, the demurrer was, as to McGuire, stricken out as frivolous, and judgment ordered against him, unless within five days he filed an affidavit of merits, and answered within 10 days; and upon the further condition that the cause be placed on the ensuing May term calendar of the court, without further notice. The appeals are from these two orders.

A recognizance differs from a bond in this: that while the latter, which is attested by the signature and seal of the obligor, creates a *29 fresh or new obligatibn, the former is an acknowledgment on record of an already existing debt, with condition to be void on performance of the thing stipulated, and attested by the record of the court alone, and not by the obligor’s signature and seal. It is undoubtedly essential that it be a matter of record, and that it contain and express, in the body of it the material parts of the obligation and condition;. and, if deficient in this respect, the record cannot be aided by parol.. In an action of debt on a recognizance at common law, the utmost, strictness that was ever required was that the declaration should state it with certainty, pursuing the description in the entry of recognizance, and should allege in what court, and at whose suit, and for what sum the defendants acknowledged themselves obligated;, also that it should be averred that it is a record, and the breach stated according to the terms of the recognizance.' We cannot see-wherein the complaint in this action fails to comply with a single’ one of these requirements. The demurrer was properly overruled.. The only question, that can admit of any possible doubt is whether the demurrer was so clearly and palpably untenable as to justify its. being stricken out, as to McGuire, as frivolous. But inasmuch as, in view of the order of the court allowing him to answer over on certain conditions, it made no practical difference to him whether the-demurrer was overruled or stricken out, we are not inclined to be-very critical in considering the particular process by which the court, reached the result. '

Orders in both appeals affirmed.