41 Ill. 456 | Ill. | 1866
delivered the opinion of the Court:
It is urged as a ground of reversal, that there is no evidence that the recognizance was ever filed or became a matter of record in the court below. It is true, that the bill of exceptions fails to show that it was ever filed in the Circuit Court; but no objection was taken to its introduction on that ground. If the objection existed, as a matter of fact, we can hardly suppose that it would not have been specially made. Finding no such, objection in the record, we must conclude that the clerk, in making the transcript of the record, omitted to transcribe the file mark on the original. A general objection only having been made, seems to imply that no specific one existed. The general objection was probably made to raise the question, whether this was a recognizance against Sylvester Empie. If there was no file mark on the recognizance it should have been pointed out, so as to have afforded defendants in error the opportunity of removing the objection by obtaining leave to mark it filed nuno pro tuno, if it had been filed in fact.
It is next urged, that it fails to appear that Empie was indicted. Under the condition of the recognizance, and the law, as it has been long, and it is believed uniformly, settled, and as is regarded the doctrine of this court, it is not necessary that it should be averred or proved, that an indictment was ever found, to render the principal and his recognizors liable on a default by the principal. Chumasero v. The People, 18 Ill. 406; Garrison v. The People, 21 id. 535. The condition of the recognizance is, that he will appear at the next term of the Circuit Court to answer an indictment for larceny, and to receive what shall be by the court, then and there enjoined upon him, and shall not depart without leave. This recognizance is not only to appear and answer the charge of larceny, but any other that might be preferred, and not to depart therefrom until discharged by the court. One of the objects of a recognizance is to compel the party to appear to answer the specific or any other charge that may be preferred.
It is again insisted, that, as the principal is described in the body of the recognizance as John Empie, and it is signed Sylvester Empie, the people must fail to recover; that the latter has not entered into a recognizance to appear, but only that John should appear, and that there is no forfeiture against him. It is likewise insisted, that it cannot be averred and proved that Sylvester was the principal who executed the recognizance. In the case of Graves v. The People, 11 Ill. 542, it was held, that a default taken against Harrison Graves did not establish a forfeiture of a recognizance entered into by William H. Graves; but if the facts warranted it, an averment might have been made in the scire facias, that Harrison Graves was the person who entered into the recognizance by the name of William H. Graves. In the case of Garrison v. The People, 21 Ill. 535, the same rule was recognized, and the doctrine of the former case approved.
It is, however, supposed that the case of Vincent v. The People, 25 Ill. 500, announces a different rule. In that case, the justice of the peace, after the recognizance was executed, without the consent of the recognizors, changed the name of George Vincent, in the condition of the recognizance, to that of William Vincent. This was held to be such an alteration as to render the instrument void, and to release the securities. In that case, it was said that the intent of the parties must be gathered from the instrument itself, and the court could not hear evidence of a mistake, which, if it had occurred, must be relieved in equity. As there was no averment which authorized proof that the party executed the instrument as it appeared after the alteration, but by another name, it would have been improper to receive such evidence. But the rule was inadvertently stated too broadly, in saying the only relief was in equity. We perceive no error in admitting the recognizance in evidence under the averment, to be considered with the other evidence, that Sylvester executed the recognizance and was described in the instrument by the name of John.
It is likewise objected, that the judgment is erroneous because it is against Empie, who was not served with the scire facias, as well as against appellants. We perceive no force in this objection, as appellants can in no event receive the least injury, and it is only such an error as Empie himself can urge.
The first, second, third and fourth pleas amount to the general issue, and were obnoxious to a demurrer for that reason. A recognizance is a matter of record, and these pleas are not an answer to the recognizance. It does not matter in the least whether Empie was examined or not, before the justice of the peace, on one charge or another. The recognizance admits that he had been committed to jail, and it was given to procure his release from custody, and the recognizance is binding although the justice may have described a proceeding for a different crime from the one on which he had been committed.
The judgment of the court below must be affirmed.
Judgment affirmed.
