18 Ill. 405 | Ill. | 1857
On default, the party must assign such ground of error as would be good on general demurrer. No such error is assigned.
The first is a general assignment of error; the second, in taking recognizance for less than sum indorsed on writ, would not prejudice plaintiff, and he could not complain. Bailey's admr. v. Campbell, 1 Scam. R. 47; Harrison v. Clark et al., 1 ibid. 131; Thorn v. Watson, 5 Gil. R. 26. If for a greater amount, it would be void. Waugh v. The People, 17 Ill. R. 561. But this has no application to a recognizance taken in open court. It needs no formal order to sustain it. It is evidence of itself that the court directed the recognizance to be taken for the amount mentioned in it.
The indictment need not be set out in the scire facias. It is sufficient if the offense is recited or referred to in it. Nor need there be any order of court requiring or directing the party to enter into recognizance. The recognizance is evidence that the party was required to enter into it, and did so. Shattuck et al. v. The People, 4 Scam. R. 477. '
The fifth and last assignment of error questions the sufficiency of the scire facias, because, it is alleged, that it is joint against plaintiff and his principal, Gerhart, and upon a several recognizance. The recognizance is several. The sci/re facias, though sued out against both principal and surety, which is proper, is several in its effect upon each, and the judgment, or award of execution, is also several against plaintiff. There is not, and cannot be, therefore, anjr prejudice to plaintiff. Even where recognizance is joiM and several, execution may be severally awarded, though scire facias is both joint and several. Passfield v. The People, 3 Gilm. R. 406. It does not follow that the scire facias is joint simply because two are included in, and ordered to be summoned to show cause. The object is to have execution according to the form, force and effect of the recognisance. Sans v. The People, 3 Gilm. R. 327.
It is sufficient that the scire facias pursue the recognizance, whether joint and several, or joint or several, and judgment or execution be awarded only according to its form, force and effect. But where the parties, principal and surety, have both entered into the same recognizance, though severally, each may be included in, and served with one scire facias, to show cause against the award of execution against him for the several indebtedness. And this would not make it a joint scwe facias any more than such a recognizance becomes joint by each entering into the same severally for himself. So I must understand the authority of Hildreth v. The State, 5 Blackf. R. 80; Thompson v. The State, 4 ibid. 188; Lockwood et al. v. The State, 7 ibid. 417.
We do not regard the scire facias here as a joint one, but several in all its recitals, and several in its requirements.
Judgment affirmed.
