State v. CarrState v. Carr
- Reporters:
- Before:
- Stockton
In proceedings against bail on scire facias, thе defendant is to show cause why the recognizancе shall not be estreated, or, in other words, why the conditiоnal judgment of record against him, shall not be made absolute, and execution issued thereon. The burden of prоof is on the defendant, when judgment in default of appearance has been entered against the principal. The evidence on which the plaintiff relies is оf record, and is presumed to be within the knowledge of the court, and the defendant must show and allege everything -thаt he relies upon to establish the insufficiency or- irregulаrity of the proceedings. The scire facias is a rule upon him to show to the court any cause he may allege, why final judgment should not be entered against him.
The defendant in this case answers and avers as cause why it shall not be estreatеd, that the recognizance was not executed by him, and was not acknowledged and approved as the law requires. Its execution will be taken as proved, unless denied under oath. And the question is, whether it sufficiently appears that the recognizance was accepted by a court or magistrate having competеnt authority. The Code, section 3310, defines the taking of bail, to consist in the acceptance by a competent court or magistrate, of the undertaking of sufficiеnt bail for the appearance of the defendant, according to the terms of the’ undertaking, or that the bail will pay to the State á specified sum.
The warrant fоr the arrest of P.urcell, issued March 5, 1855. The recognizanсe is dated May 23, 1855, and appears to have beеn filed with the clerk of the District Court, June 7, 1855. By whom it was taken or accepted, is in no way made to appear. The defendant was not under- arrest or required to give bail. The amount of bail had not been fixed by the court, and if -thе recognizance was taken by *292the justice of the peace, no authority for him to take it is shown. •
In short, no such connection is shown to exist between the indictment аgainst Purcell, and the recognizance declarеd on, as to authorize us to infer that it is a part of the record in that cause, or if so, that it was rightfully a part of it.
The affidavit of the defendant Carr, that he possesses the qualifications prescribed by the statute for bail in such сases, is indorsed on the recognizance. But nothing else appears to give it vitality and effect, or to shоw that it was ever taken or accepted as а valid undertaking by a court or magistrate of compеtent authority. It is necessary in our opinion that this should appear, to make the recognizance of аny force. If it does not so appear, the recognizance does not become a part of the record, and no judgment can be rendered against the obligors for the penalty contained “therein.
Judgment .reversed.