17 Ill. 172 | Ill. | 1855
This was a scire facias upon a recognizance. Thomas H. Lawrence, one of the cognizors, appeared and demurred to the scire facias. The demurrer was overruled, judgment of execution rendered against him, and the suit was continued as to the other cognizors, who were not served.
objected that the scire facias is insufficient, because it does not contain an averment that the obligation was approved by the justice of the peace before whom it was taken. The obligation is set out in the scire facias, and shows on its face the following certificate:
“ Taken and acknowledged before me, this 12th day of March, A. D. 1855.
John A. Maxby, J. P. [seal.]”
The statute provides that “ all recognizances that have any relation to criminal matters, shall be taken to the people of this State, shall be signed by the person or persons entering into the :>ame, shall be certified by the judge, justice of the peace, or other officer taking the same, and delivered to the clerk of the Circuit Court,” &c. R. S. 191, Sec. 205.
The scire facias stands in the place of a declaration, and, for the purposes of pleading, fills the same office. The certificate of the justice is a part of the recognizance and essential to its validity.
It was sufficient to state the recognizance according to its operation and legal effect, or to set it out in its very words, leaving it to the court to determine upon its legal effect. 1 Chitty’s Pl. 335. The pleader chose the latter course, and hence what appears from the recognizance need not be again averred. If the scire facias had averred that the recognizance was “ taken and approved ” by the justice, the recognizance itself would have proved the averment, for such is the legal effect of the certificate.
All that is important to the validity of the recognizance, in this respect, is, that it appear therefrom that it was taken before and certified by the officer authorized to take the same.' The taking and certifying the instrument officially, as a recognizance, necessarily involves an approval. No form of certificate is given by the statute, and it is not material what language is used, so that it appears that the officer took and accepted, the recognizance for the purposes contemplated by the law. The case of Bacon et al. v. The People, 14 Ill. 312, is relied upon by the plaintiff in error. In that case, it does not appear that the recognizance was set out in the scire facias, and the averment was that the cognizors “ executed and delivered to the justice a certain bond or recognizance whereby ” &c.; and this court held that the averment was not sufficient to show that the obligation was taken and approved by the officer.
In this case, the taking and approval appear from the recognizance set out in the scire facias, and this is equivalent to such averment.
Judgment affirmed.
