Eimer v. Richards

Caton, C. J. It is unnecessary now to determine whether it is at this day competent, as was the practice in former times, when but few in the community could read or write, for all persons to appear in open court and enter into recognizances, as evidence of their private contracts in no way connected with any proceeding pending or to be pending in the court. In this case not only the averments of the several counts of the declaration, but the recognizance set out therein, show that it was taken in a case expressly authorized by law. An objection is taken that the condition of the recognizance not only is, that the principal therein, who was the defendant in the attachment, but also the sureties, should pay whatever judgment should be rendered in the attachment case. This is no substantial departure from the provisions of the statute. It does not affect the legal obligation of the recognizance. That redundancy in the condition expresses no more than was legally implied before. Without it, either of the cognizors had the right to go and pay the judgment, and thus discharge or satisfy the condition of the recognizance. If it was not paid by some one, then all were liable; if it was, then none were. The legal effect was precisely the same in either case. So also of the objection that the word interest is inserted in the condition. If not inserted it would have been implied. Interest, by our statute, is made an incident to the judgment. We cannot in this collateral action inquire into the regularity of the judgment in the attachment proceeding. It appears to be in the same action to which reference is made in the recognizance, and the court had jurisdiction of the subject matter. That is conclusive in a collateral proceeding. The several other technical and formal objections which were, made to the declaration, have been considered by the court and found to be untenable. Finally, it is objected that debt cannot be brought on a recognizance which is not signed by the parties, but that the only remedy is by sci. fa. If that distinction is to be found in some of the old books, the rule is not recognized at least in modern' times. That distinction cannot be supported by any philosophical reason, and is inconsistent with the general rules by which remedies on record obligations are afforded. We do not think the objection tenable. The judgment must be affirmed. Judgment affirmed,.