King v. Culbertson

Per Curiam. This is an action of debt on a recognizance entered into by John King, (the -defendant below,) before a justice of the peace of Franklin county, upon an appeal from the judgment of the said justice, in an action, in which William Feeble, (for the use of William Culbertson,) was plaintiff, and Alexander Osbuvn, defendant. The condition of the recognizance, as stated' in the declaration' in this case, was, “ that the said Alexander Os-burn should appear at the next Court of Common Pleas, to be holden for the county of Franklin, and prosecute the said suit with effect, and on failure thereof, he the said John King, the bail of the said Alexander Osburn, would pay the debt and costs due on the said suit, to the plaintiff.” The defendant in- the court below, demurred to the declaration, and the court gave judgment for the’ plaintiff. The question is, whether the recognizance set forth in the declaration was good. It was taken under the act of the 20th March, 1810; and it appears to be essentially different from the’ recognizance prescribed by that act. It ought to have been a recognizance in nature of special bail, and the justice had no authority to take any other. The plaintiff contends, that it was a voluntary act of the defendant, and therefore he should be bound* by it. But that is not the case. The appeal could not be entered* [326] without the recognizance, and it was the business of the justice to see that it was conformable to the act of assembly. But it was substantially variant. It is the opinion of the court, therefore, that the recognizance was void, and the judgment must be reversed. Judgment reversed.-