Terry, C. J., and Field, J., concurring.
This was a proceeding on the part of the People for the recovery of the amount of a recognizance. It appears, by the record, that the respondents were the sureties of one Howard, who was arrested and bound over by a justice of the peace to answer the charge of receiving two mules, averred to be stolen property. The complaint was answered by a general denial, and the case tried by the Court. The Court finds that an indictment was found by the grand jury, at a subsequent term to the date of the recognizance, “ entitled an indictment against Geo. B. Howard for receiving stolen goods.”
Uothing is said in this finding to show that this indictment was found for the offence in the recognizance. Certainly it does not follow, from this general description of the indictment, that it was for the same crime mentioned in the recognizance. If the Court had found that the property was the same in description —even as two mules—it might have been sufficient, but as the finding stands, we can not intend it was the same, against the conclusion of the Judge who tried the cause.
For these reasons, we are compelled to affirm the judgment. But as the record fails to show any judgment on the merits, if the indictment were actually for the same offence for answering which, by their principal, the sureties stipulated, the plaintiff can proceed again upon proper proof.