6 Blackf. 339 | Ind. | 1842
This was a saire facias against Jesse Parnell, John Burton, and William M. Watkins, on a joint and
The prosecuting attorney suggested to the Court, that the scire facias had not been served on Yarnell. The other defendants craved oyer of the recognizance, which was granted. The recognizance, as shown on oyer, commenced as follows: “ State of Indiana, Vigo county, ss. Be it remembered that *on the seventh day of April, in the year of our Lord one thousand eight hundred and forty-one, John Burton and William Watkins, of Vigo county, personally appeared,” &c. The residue of the recognizance agreed with that described in the scire facias. Burton and Watkins demurred generally to the scire facias, and there was judgment against them.
The judgment is erroneous, on the ground that the suit, which is founded on contract-, is against three persons, and the judgment is against two of them only; no good cause being shown by the record for the irregularity. 1 Chitt. Plead., 50,
It is contended that the demurrer should have been' sustained, first, because Yarnell is not a party to the recognizance; and, secondly, because there is a variance between the recognizance described in the scire facias, and that shown on oyer. The first ground of demurrer is insufficient. The suit, it is true, could not be sustained unless it appeared that all the defendants had entered into the recognizance; but that wo think does appear. Although Yarnell’s name is omitted in the body of the recognizance, yet as it appears that he signed and sealed it with the others, and that it was taken and approved by the judge, it may be considered under the statute, notwithstanding the omission, as the recognizance of all the defendants And no suggestion of the omission was necessary in the scin facias, as it sets out the part of the recognizance objected to in hcec verba. Ross v. The State, decided at this term.
The other cause of demurrer must prevail. The recogni zance, as set out in the scire facias, is dated in the year one thousand eight hundred and forty-one; and that shown on oyer is dated in the year of our Lord one thousand eight hundred and forty-one. This is a trivial variance, but the defendants, it seems, may take advantage of it. The plaintiff, instead of describing the recognizance according to its *legal effect, undertook to give it in hcec verba; and he was consequently bound to set out an exact copy. Sheehy v. Mandeville, 7 Cranch, 208, 217; Lynch v. Wilson, 4 Blackf., 288.
Per Curiam.—The judgment is reversed. Cause remanded, &c.