Adair v. State

| Ind. | Nov 5, 1822

Holman, J.

An affidavit, containing a charge of felony against James Adair, jun., was made on the 7th of May, 1820, before F. Hazlerigg, a justice of the peace for Fayette county. On the 9th of May, 1820, James Adair, sen., and John Adair entered into a recognizance, together with James Adair, yin., before E. Webb, an associate judge of the Fayette Circuit Court, in sum of 1,000 dollars each, conditioned that James Adair, jun., should appear before the judges of said Court, on the first day of its next term, and answer to the said charge of felony. This affidavit and recognizance were filed in said Court; and on the first day ofthe term, next after the taking of the recognizanc e, James Adair, jun., failed to appear, and James Adair fie n., and John Adair failed to produce his body in Court in discharge of their recognizance. A motion was then made to set aside the recognizance, on account ofthe insufficiency ofthe recognizance and affidavit; which motion the Court refused to hear, because the grand jury were in session, and James Adair, jun., was not present. On the 5th day of the term, the Court gave judgment against James Adair, jun., and his sureties James Adair, sen., and John Adair, for the sum of 1,000 dollars each, agreeably to the effect of their recognizance ; and ordered a scire facias to issue against the defendants, to show cause why the state should not have execution against them for the amount of their recognizance aforesaid, with costs. The bail now renewed their former motion to be discharged from their recognizance on the same ground; which motion was overruled.

No objection is here suggested to the form of the affidavit or recognizance. The ground relied on is, that the affidavit was made before Hazlerigg, a justice of the peace, and the recognizance was taken by Webb, an associate judge; but we are unable to discover wherein this is objectionable. There is no question but an associate judge has authority, by the act of assembly, to take such a recognizance. The objection seems to arise to his taking it on an affidavit made before another officer ⁽¹⁾; but we hare seen no case that looks beyond the face of the recognizance on a motion of this nature. The recognizance when filed is in the nature of a conditional judgment of record; and when the recognizors fail to comply with the condition, the judgment becomes absolute, and stands independent of any previous proceedings. But should we go back and look at the affidavit, we can see many cases where this recognizance might regularly have followed this affidavit. Let one suffice. If, when the charge was made before the justice of the peace, the parties had voluntarily appeared before the associate judge, and entered into the recognizance, he would not only have been authorized but bound by virtue of his office to take it. Whether this or something similar was the case, it is unnecessary to inquire.

The assignment of errors alleges that there was no indictmentFound against James Adair, jum, and that therefore the recognizance should have been set aside. We have no evidence of the truth of the premises, that no indictment was found; but if such was the fact, we do not discover how' the conclusion follows from the premises. The first condition in the recognizance was,that James Adair, jun., should appear before the judges of the Fayette Circuit Court, on the first day of the term, to answer to the charge; which condition was violated on the first day of the term by his failure to appear. 1 Chitt. C. L. 105. — 1 Com. Dig. 603. And although the judgment of forfeiture was in the power of the Court during the term, yet the recognizors had no claim to a suspension of that judgment without the appearance of the principal in Court. Had he appeared after the first day of the term, and had no indictment been found against him, he and his bail would no doubt have been discharged from their recognizance, more through the favour of the Court than the strict justice of their case.

On this judgment a scire facias issued, which was executed on James Adair, sen.; and an alias, which was executed on John Adair; and both were returned nihil asto James Adair, jun. James Adair, sen., and John Adair appeared, and severally pleaded that there was no such recognizance as that set forth in the scire facias: on which pleas issues were joined. The Court decided that the pleas were insufficient to bar the award of execution, and that the state have execution on the judgment. The former part of this decision as thus entered is irregular, inasmuch as the sufficiency of the pleas was not in question, issues being taken on them'; but the decision is substantially correct, the main question being whether or not the state should have execution.

It is contended that the recognizance is several, that there is a jointscire facias against the three, and a joint judgment against two only. Such is not the fact. The terms joint and several are not strictly applicable to these proceedings. The recognizance, although but one instrument, contains three distinct obligations, each for a separate sum of money. Each of the three Adairs acknowledged himself indebted to the state in the sum of 1,000 dollars. Each of these obligations has an independent existence, and the discharge of one would have no effect upon the others ⁽²⁾. The judgment and award of execution are not entered with clerical precision, hut the nature of the claim of t the state against each of the three defaulters is clearly maim, tained throughout the proceedings. There is nothing joint.. The one entry of judgment operates as a separate judgment against each, for the sum of 1,000 dollars. So with the scire* facias. It is hut one writ, hut it operated in requiring each one-to show cause why the state should not have execution against him in particular. The award of execution against two has nothing in it irregular. The execution is not awarded against themjointly. Neither of these two defendants is charged with the demand against the other, nor with the demand against James Adair, jun. Each one is liable on his own obligation only, and is unaffected by the judgment or execution against the others. And if the state should never have execution against James Adair, jun., the liability of James Adair, sen., and John Adair is not thereby increased, except it may he in the payment of costs, which each is hound to pay, inasmuch as three' several writs of scire facias might have issued on this recognizance ⁽³⁾.

Caswell, for the plaintiffs. Moore, for the state. Per Curiam.

The judgment is affirmed, with 1 per cent, da-mages and costs.

(1) One magistrate may commit on an affidavit taken before another magistrate. Per Marshall, C. J. 1 Burr’s Trial, 24.

(2) So in debt on a bond, whereby JV. C., G. S. W., and J. W. acknowledged themselves held and bound to the plaintiffs in “1,0001. each, for which they bound themselves, and each of them for himself, for the whole and entire sumofl,000hea.ch,’’ subject to a condition that G. B. M. should render a true account of all moneys received by him as treasurer, &c.; it was held, that this was a several bond only, and that the obligees, by removing the seal of one obligor, did not render it void as to the others. Collins et al. v. Prosser et al., 1 Barn. & Cress. 682.

(3) In oases where a recognizance is forfeited on the return of non est to a ca. sa., the plaintiff may proceed against the bail and principal, if he be joined in the recognizance, by sci. fa., or actionof debt. The plaintiff is at liberty to bring either-one action of debt against-all the persons bound in the recognizance, or several actions against each of them.. But one sci. fa. is sufficient; because the recognizance, upon. which the sci. fa.. is- founded, being, joint and several, and the purport of it being to have execution according to» the form and effect of the recognizance, it therefore follows that,- although theSpif fa. be joint, the execution may be several. 2 Will. Sound. 72, b. note.