People v. Cleaver

Mr. Presiding Justice Crabtree delivered the opinion of the Court. This was a proceeding by scire facias upon a forfeited recognizance, given by Louis Parkes, who was arrested on June 6, 1896, and taken before a justice of the peace in Iroquois county to answer a charge of abduction. The examination being adjourned by the justice to June 12, 1896, said Louis Parkes was required to enter into a recognizance for his appearance on the last named date. He gave such recognizance with appellee and James Parkes as surety in the sum of $500. Failing to appear on the day to which the examination was continued, said Louis Parkes was defaulted, and judgment rendered that his recognizance be forfeited, and thereupon the justice returned the recognizance, together with the record of the default, into the Circuit Court, in accordance with Sec. 11, Div. YII of the Criminal Code, and this proceeding was instituted to obtain judgment upon such recognizance and for execution. A demurrer to the scire facias being overruled, the defendants took leave to plead, whereupon they filed a plea of nul tiel record, and appellee also filed a separate plea in his own behalf to the effect that he signed the recognizance in question, with the express understanding and agreement between himself, his co-sureties, and the said justice of the peace, that such recognizance should not be accepted or approved by said justice, nor be used or held in any manner to bind appellee, until it was signed by Marion Parkes, whose name was inserted therein as an obligor, but who in fact never signed the bond, notwithstanding this understanding and agreement, to which the justice was a party, the latter approved the recognizance without the signature of Marion Parkes, and it became a record as above stated. These facts sufficiently appear by the plea, and the demurrer thereto admits their truth. The court overruled a demurrer to this plea, and the people abiding by the demurrer bring the cause to this court by appeal. The only question presented for our consideration, is as to whether the plea presents a defense to the scire facias, the contention of counsel for appellants being that the recognizance having become a record by being returned into court in the manner required by law, imports verity, and that the antecedent facts upon which it is based, can not be inquired into under a plea of this character. Counsel for the people argue the question as though this were a plea of non est factum, but we do not so regard it, and hence the .authorities cited to the proposition that such a plea is not proper to be pleaded to a scire facias are not in point. The plea is not strictly a plea of non est factum, nor is it a plea of nul tiel record, but is a special plea, setting up facts which, if true, show that appellee was never liable on the bond. Under the circumstances the justice had no right or authority to approve the bond; to do so was a fraud upon the rights of appellee, and a record made upon such wrongful approval was never properly made. Under the authority of Waugh v. The People, 17 Ill. 561, we regard the recognizance as a nullity so far as appellee was concerned. ■ The demurrer to the plea was properly overruled and the judgment will be affirmed.