Turk v. Smith & Co.

By Mr. Justice Hitchcock :' This is a judgment on a scire facias, against bail. The defendant craved oyer of the bail bond; and pleaded ‘mil lid record, and that the bond is “not such as is required by law.”' Judgment was rendered in the Circuit Court of Jackson county, for the plaintiffs below, and tos case has been brought hero by writ- of error. Various assignments have been made here, to show a variance between the sci. fa. and the record of the judgment in the original suit, upon which the sci. fa. is predicated — 'none of which can be noticed, as that record is not before this Court. On the plea of mil tiel record, the Judge below inspects the record, and gives judgment as - to him may seem right; and to bring any question upon his judgment here, there must be a bill of exceptions, to make the record a part of the proceedings of the caso. That net having then done, the Court here, cannot look at that record. The second plea, as to the sufficiency of the bond, can, if viewed at all, be considered only in the light of a demurrer to the bond. The Court has looked 'into it with that view. Our statute requires the sheriff, in all cases requiring bail, to take a bond in double the amount of the debt sued for, payable to himself, which he is required to assign to the plaintiff. There is no form required by statute, but all bail is declared to be special bail, and is to be proceeded against by sci. fa. after a return of, the body not found, on a capias. This bond describes the suit, and sets out a condition, substantially showing what the defendant would [157] be liable for — which is, for the appearance of the defendant in the original suit, at the return term of the writ, “ there to do what may be by law required of him, and not to depart the Court without the leave of the Court — if só, tobe void, and not else.’-' The Court can discover no defect in this bond; and the judgment must be affirmed.