Minor v. StateMinor v. State
- Reporters:
- ,
- Before:
- Holman
I. Minor and W. Minor entered into a recognizance for the appearance of Catharine Carrico, in the Knox Cirсuit Court, to answer to a charge of larceny. She was called and failed to appear. The Court thеn made the following entry: “It is therefore considered by thе Court, that the recognizance heretofore entered into.be and the same is forfeited; and that a sсire facias do issue to show cause, if any they havе, why execution should not issue against them.” The scire facias issued against I. and W. Minor. They appeared and’ moved to. quash the writ, because the said Catharine had not entered into the recognizance, because the recоgnizance was not forfeited, and because no default was entered. The Court overruled the motion, and gave judgment that an execution issue against each, оf the defendants severally for the sum of SO dollars, the amount of his recognizance.
The clerical part, оf these proceedings has not that technical; *237.fоrmality which is usual in records; but we see nothing erroneous in thе judgment of the Court. The recognizance was obligatоry, although Catharine Carrico was no party to it. The suggestion, that she was a mаrried woman, is dehors the record (1). There is no doubt but that this is thе recognizance which the Court declared forfеited, although it is not identified by specially naming the defaultеrs. There is likewise no doubt against whom the scire faciаs was directed. In the award of execution, it should have been stated that the state have execution; but tbis оmission is unquestionably supplied by the plain intent of the whole‘case. No one who looks into the record, сan doubt in whose favour the executions were to issue. It is too plain to be misunderstood (2).
Per Curiam.
The judgment is affirmed, with 1 per cent, damages and costs.
Notes
If Mrs. Carrico was a married womаn, as suggested, she could not he recognized. The reсognizance is entered into only by the sureties, where thе party charged is a feme covert, or an infant, or in gaol. 1 Chitt. C. L. 104. So femes covert and infants, when material witnеsses for a prosecution, are never recоgnized to give evidence, for they cannot legally bind themselves, But when required, they are obliged to procurе others to be bound for them in a recognizance; 1 Chitt. C. L. 91; аnd, upon their refusal to find such sureties, they are liable tо he committed to gaol, as other witnesses are who refuse to enter into a recognizance themselves. Ibid. Thus, whore a material witness, being a feme covert and therefore incapable of entering into а recognizance herself, was required by the magistrate to procure her husband, or somebody else, to enter into a recognizance for her appеarance at Court, to give evidence against a person charged with felony; and, upon her refusal tо find sureties, or to appear, was committed to gaol; the Court, in trespass against the justice and constable, held that the commitment was legal. Bennet et ux. v. Watson et al. 3 Maule & Selw. 1.
Vide Adair et al. v. The State, ante, p. 200, and note 3.