58 Ill. 26 | Ill. | 1871
delivered the opinion of the Court:
The writ of scire facias, on a recognizance, stands in the place of both the summons and declaration in the case, and, like the declaration in any other case, should contain every material allegation necessary to a recovery. Thomas v. The People, 13 Ill. 696; Lawrence v. The People, 17 Ill. 172.
If there is a variance between the recognizance and the conditional judgment entered therein, as set out in the scire facias, and that offered in evidence, it will be fatal, and the variance may be taken advantage of under the plea of nul tiel record. Slaten et al. v. The People, 21 Ill. 29.
The recognizance itself, is not well pleaded. It is averred in the scire facias, that the plaintiffs in error entered into a recognizance by which they “jointly and severally” acknowledged themselves bound. That is not the legal effect of the obligation. By the express terms of the recognizance, they only acknowledged themselves “severally” bound; While it is true, that, under our statute, joint obligations will be considered both joint and several, it is not true that a recognizance “ severally ” acknowledged, becomes both joint and several. The common law distinction still prevails.
In Chumasero v. The People, 18 Ill. 405, it was held, that 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.
The court say that, “ this would not make it a joint scire facias any more thun such recognizance becomes joint by each entering into the same, severally for himself. ”
The recognizance in this instance, is several, and is made so by its express terms.
The People can only have execution according to the “ form, force and effect ” of the recognizance itself Sans v. The People, 3 Gilm. 327.
It is also averred in. this scire facias, that the conditional judgment was rendered against the principal, George W. Farris, and five sureties. The record offered in evidence, and objected to, only recites a judgment of forfeiture against the principal and three sureties. Against two of the cognizors, viz: William 17. Mitchell and Warren Sawyer, against whom judgment is now sought, no conditional judgment or judgment of forfeiture was ever rendered.
Before any final judgment could be properly entered against them, there must have been previously, a judgment of forfeiture. Conner v. The People, 20 Ill. 381; Thomas v. The People, 13 Ill. 696; Kennedy v. The People, 15 Ill. 418.
For the reasons indicated, the judgment must be reversed and the cause remanded.
Judgment reversed.
