Patterson v. State ex rel. Neff

Hanna, J. The complaint avers that one McAlister and Patterson, on, &c., at said comity of Greene, executed, &c., before one Cushman, a justice, &c., a recognizance, &c., in the sum of 100 dollars, &c., conditioned that said McAlister, should appear before the said justice, &c., at his office in said county, on, &c., to answer “a charge of obtaining money by false pretense,” and abide, &c.; that, by mistake, the venue of said recognizance was laid in Sullivan county, but that it sufficiently appears from the papers, &c., that said obligation was for the appearance in Greene county, which was by the defendant well known; and that on, &c., the justice caused the said McAlister to be three times called, but he made default; that he then caused Patterson to be called, &c., who failed, &c., and thereupon a judgment of forfeiture was rendered by said justice, &c., all of which appears, &c.; that said judgment of forfeiture is still in force, &c.; wherefore, &c. Answers were filed, to which demurrers were sustained, but no exception was taken. Judgment for the appellee. No exceptions having been taken to any rulings of the Court below, upon demurrers to pleadings, the only questions now presented for our consideration are those at [88] tempted to be raised as to the sufficiency of the complaint and judgment, wherefore the complaint is thus substanti ally set forth. We must treat this case as if no objection was made, in the Court below, to the sufficiency of the complaint. In that view of ihe question, we are of opinion that the complaint is sufficient to bar another suit for the same cause of action. But it is assigned for error, and urged in argument, that the recognizance, which was the foundation of the suit, and made a part of the complaint, was void, because it provided that McAlister should be forthcoming “to answer a charge of obtaining money under a false pretense;” that the language used does not import an indictable offense, and, therefore, the material statements necessary, under the statute, to make out such offense, should have been embodied in the recognizance—such as, that the money was designedly obtained under false pretenses, with intent to defraud another, &c. If this reasoning is correct, the facts and circumstances, including the false pretenses used, .would have to be set forth with as much particularity in a recognizance, as in an indictment. We are of opinion that any omission of recital, in the recognizance, is cured by § 49, 2 R. S. p. 366, which is as follows: “No action upon a recognizance may be defeated for any defect of form, or any omission of recital, condition, or undertaking therein, or neglect of the clerk to indorse or record it; but the recognizors are bound,” &c. Even without this statute, it appears the recital would have been sufficient. The State v. Hamer, 2 Ind. R. 371. It is insisted that, as the complaint does not aver that there was a continuance, as provided under § 14, 2 R. S. p. 499; nor that the justice indorsed on the recognizance that it was forfeited and filed with the clerk, &c., as provided in § 15, id.; it is, therefore, so insufficient that the judgment should be reversed. We think that §§ 12, 13, 14,15, p. 499, and § 49, p. 366, 2 R. S. when construed together, mean, that a recognizance, to operate as a lien on lands, must be certified and record89 eel, &c.; but that it maybe the foundation of an action, without having been so certified and recorded. Perhaps, under the former practice, a sci. fa. could not have issued from the Circuit Court until the recognizance had been recorded; but this is an action, in the nature of an action of debt, on the recognizance, as on any other contract. D. M’ Donald and A. G. Porter, for the appellant. II. C. Newcomb and J. S. Tarkington, for the state. As to the point raised on the question of continuance, it has been already settled in the case of The State v. Inman, 7 Blackf. 225. Per Curiam. The judgment is affirmed, with 3 per cent, damages and costs.