Ogden v. People

Mr. Justice Thornton delivered the opinion of the Court: The recognizance upon which the scire facias was issued, was taken in pursuance of the statute, by a justice of the peace, for the appearance of the accused, for further examination. R. S. 1845, 581. Section 2d of the act provides that, if the person recognized, shall not appear at the time appointed, the justice shall note the default upon the record, and certify the recognizance, with the record of the default, to the Circuit Court, that a scire facias may issue thereon, or an action of debt be brought for the recovery of the penalty. The time appointed for further examination was the 2d day of February. It appears, from the transcript of the justice of the peace, that the accused did appear on that day; a witness was sworn ; and the prosecution was then continued until the 6 th of February, without any new bond, or any minute of default. On the 6 th the justice made the following entry: “Defendants did not appear, so the court considered that the bond of recognizance be forfeited, etc.” The condition of the recognizance was to appear upon a day named. The accused did appear, and thus complied with the condition. The justice had no right to enter the default when in fact there was none. The only authority to do so is the nonappearance of the cognizor at the time appointed. Ho scire facias could properly issue from the Circuit Court, until a proper certificate of default had been filed therein by the justice. It follows that the scire facias is void. There are other errors in the record which it is unnecessary to notice. The judgment is reversed and the cause remanded. Judgment reversed.