5 Ark. 433 | Ark. | 1844
By the Court,
The motion by the defendants, the recognizors of the bond, was prematurely made. No forfeiture of it, by the failure of Halloway to appear according to its conditions, had been taken, as appears by the record; nor were they, as we can .see, sought to be charged upon it by any proceeding in court for that purpose. . No right of action accrued on it until a forfeiture of the condition, nor until then could any action by sci.fa. or otherwise, be instituted on it. There was no suit over which the court had jurisdiction, nor could there be any, until the State instituted proceedings to recover the penalty. In such case there would be a suit with parties, and a sum, a thing in controversy, over which the court could take jurisdiction, and to which the defendants, if they pleased, could make their voluntary appearance» By the proceeding in this case the court declared the recognizance insufficient before any action taken on it to test its insufficiency. It was a declaration, not that n® action had arisen, but that none ever could arise on it. These were questions properly to be determined upon a trial of the whole matter, in an appropriate proceeding, in which the obligation and validity of the recognizance, as well as the fact of its breach, and defendants liability upon it, could be tested and determined. Upon the propriety of the motion of the Slate’s attorney, there can be no doubt. The «•eoognizance when returned into the circuit court, became a record of that court, and the justice of the peace was not only bound to perfect the recognizance by attesting it, but upon process or rule for that purpose, could .have been compelled to do so.
We express no opinion upon the validity of the recognizance, as . that matter is not properly before us. We think that whatever might be the defects of the bond or its conditions, that the proceeding to quash it was premature and irregular. For which reason ¡the judgment of the circuit court must be reversed, the cause remanded, with instructions to overrule the motion of the defendants, and grant the motion of the attorney of the State, fo.r the leave, &c.
