1 Blackf. 200 | Ind. | 1822
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 en
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
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
The judgment is affirmed, with 1 per cent, da-mages and costs.
One magistrate may commit on an affidavit taken before another magistrate. Per Marshall, C. J. 1 Burr’s Trial, 24.
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.
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.