Robinson v. State

5 Ala. 706 | Ala. | 1843

COLLIER, C. J.

In Chiles v. Beal, [3 Ala. Rep. 26,] which was a proceeding by scire facias against bail in a civil case, this court held, that although the bail bond was a record, yet it could not be looked to for the purpose of defeating the judgment below; that if there was a variance between the bond actually executed and that described in the scire facias, the proper mode of taking advantage of it, was by a plea of nul tiel record concluding with a prayer that the same might be inspected by the court; and that a demurrer in such a case would not avail the defendants, because the record mis-recited, does not become a part of the proceedings in the cause, until it is made such by bill of exceptions. In the transcript before us, we find a recognizance in which the recognizors severally acknowledge their indebtedness in usual form in the sum of three hundred dollars, but the scire facias describes a joint recognizance for that sum. Neither of the defendants appeared and pleaded, and as we can discover no difference in this respect between bail in civil and criminal cases, as to the manner of showing a variance between the recognizance of bail and the scire facias, we think that the recognizance cannot be referred to, for the purpose of showing that the judgment nisi does not conform to it.

The proceeding by scire facias on a forfeited recognizance is not governed by the rules which apply to actions prosecuted by individuals. Every joint judgment, bond, &c., is declared by statute to be joint and several in its legal effect, and process m.ay be sued out against any one or more of the parties liable thereon, yet if suit is brought against all, and service of process perfected, there can be no discontinuance as to one without putting an end to the entire case. This enactment has never been considered as applicable to a recognizance of bail in a criminal case, whether joint or several, nor has the more stringent rule of the common law which regulates proceedings on contracts between individuals, been held to inhibit the prosecution of a scire facias, and the recovery of the judgment against any one or more of several re-cognizors. The scire facias is regarded as a mere notice to the parties to the recognizance, to show cause why they should not be subjected to the payment of its penalty; the State may call upon such of the parties as its prosecuting officer may select, to show cause and allow the pi'oceedings to be silently discontinued as to the others. [See Howie & Morrison v. The State, 1 Ala; Rep. 113.]

In respect to the second objection, it is enough to say, that the 25th section of the eighth chapter of the act “ regulating punishments under the penitentiary system,” has modified the law as laid down in Hayter v. The State, and makes the return of « not found” to an original and alias scire facias equivalent to the personal service of process. The record shows that two nihils were returned as to the plaintiffs in error, and according to the view taken of the first point, the judgment is affirmed.