8 Blackf. 200 | Ind. | 1846
-This was a scire facias in favour of state against Morris Saxton, to have execution on a recognizance.
The scire facias alleges that, at a Circuit Court, &c., before the president judge and one of the associates (naming them), James Mowbray was impleaded with George Saxton in an indictment for murder; that the cause was continued as to Mowbray ; and that he and the defendant, Morris Sax-ton, acknowledged themselves to owe and be indebted to the state, &c. The scire facias also alleges, that, at a Court continued and held as aforesaid, viz., on the 13th of September, 1843, before the judges, &c., the said Mowbray was called and failed to appear; and that the defendant, Morris Saxton, was called to bring in the body of Mowbray, &c., and made default, &c.
Plea, nul tiel record.
On the trial, the plaintiff offered in evidence a record of the recognizance. It was objected to on account of a variance. The variance was,, that the scire facias alleged the indictment to have been against Mowbray and George Sax-ton; and the record showed it to have been against Mow-bray, and George and Ashford Saxton. The objection was overruled.
The plaintiff also offered in evidence a record of the defendant’s default. That was also objected to on the ground of variance. The scire facias alleged the default to have been taken on the 13th of September, 1843; and the record showed that the entry of the default was made on the 14th of that month. This objection was also overruled.
Judgment for the state.
The admission of the records as evidence is assigned for error.
We think the variances complained of were not material to the merits, and could not prejudice the defendant in his defence. The scire facias, therefore, might have been amended at the trial, by leave of the Court, so as to have made it agree with the records. R. S. 1843, p. 715. That being the case, the judgment cannot be reversed because those variances were disregarded by the Circuit Court. The Supreme Court
It is further said, that the scire facias does not show that the recognizance was taken before a competent tribunal; but the fact is otherwise, as the recognizance is alleged to have been entered into in the Circuit Court before the president and one of the associates.
The judgment is affirmed with costs.
