Pace v. State

Bishee, J.:

This was a writ of error to the judgment of the circuit court of Newton county, rendered upon a scire facias against the plaintiff in error, as bail for one George TV. Buchanan.

The question for decision is, whether the obligation upon which the judgment was rendered, is a bond or recognizance ; and if a bond, whether a forfeiture could be taken and judgment rendered thereon, as in the case of a recognizance.

A recognizance is an obligation of record entered into before a court or an officer duly authorized for that purpose, with condition to do some act required by law. 2 Bl. Com., 341; 2 Bou. Law. Dic., 413. The instrument in the record under this authority, cannot be treated as a recognizance, but only as a bond.

The principal, Buchanan, was admitted to bail by Judge Dawson, in the sum of two thousand dollars, with four securities in the sum of five hundred dollars each. The bond in question was not taken or approved by the judge making the order for bail; but by the sheriff, who clearly had no authority under the statute to take even a recognizance. He is only authorized to take a recognizance from a person whom he may arrest on the process of a circuit court of law, charged before such court with any crime or misdemeanor, not punishable with death. Hutch. Code, p. 444, § 13.

Under the authorities, we are of opinion, that the court below erred in overruling the demurrer to the scire facias, and rendering judgment against the plaintiff in error.

Judgment reversed, and judgment final on the demurrer for the plaintiff in error.