Chase v. People , 2 Colo. 528 ( 1875 )

Beleobd, J.

Scirefacias on a recognizance. The record shows a recognizance regularly taken by two justices of the peace, by which one Charles Jennings, the principal, bound himself to the people of the territory in the sum of $200, and Edward Chase, the plaintiff in error, bound himself as surety in the same amount, and which is conditioned that the principal “shall be and personally appear at the district court within and for the county of Arapahoe, at a term thereof to be held at Denver in said county, on the first Monday of October next, A. D. 1872, to answer any indictment that may be preferred against him for the offense of being a common gambler, and to do and receive what shall be by the court then and there enjoined upon him, and shall not depart the said court without leave, then this recognizance to be void,” etc. It further appears that this recognizance was duly filed in the office of the clerk of said court on the 31st day of August, 1872, and attached to said recognizance was a certificate of said justices, stating that the bond had been approved on the 21st day of June, 1872.

It further appears that on the 28th day of October ensuing the execution of said bond, the district attorney had Jennings and Chase, the principal and surety in said recognizance, called and defaulted for want of appearance. Whereupon it was considered by the court that the said Charles Jennings and Edward Chase have broken the conditions of the said recognizance, and that the same be taken as for- • feited, and that a scire facias issue returnable to the next term of the court. The scire facias was accordingly issued and returned by the sheriff served as to Chase and not found as to Jennings. At the September term, 1873, an alias writ of scire facias was issued against Jennings, and returned as before, not found. At the October term of the court, 1873, Chase and Jennings were defaulted, and execution was thereupon awarded against Chase, and Jennings was ruled to plead within four days. On the 15th day of October the default as to Chase was set aside, and he was permitted to interpose his demurrer to the scire facias, which, after being argued and duly considered, was overruled.

On the 12th day of December, 1873, it still being of the October term, Jennings having failed to plead, as previously ordered, and Chase abiding his demurrer, the court awarded execution against both Chase and Jennings.

The errors assigned in this case are numerous, and have all been patiently considered. It is contended that Jennings and Chase had all of the October term, 1872, in which to appear, and that the court had no power to enter a default during that term, or to award the writ of scire facias. We do not think that this construction of the recognizance is the proper one. The condition that the principal should appear at the next term of the district court, to be hoi den on the first Monday of October, and to do and receive what shall be by the court then and there enjoined, and not depart the said court without leave, is tantamount to an undertaking to appear on the first and every other day of the term, unless sooner discharged. The conditions of all recognizances are fixed by law, and parties and their sureties understand perfectly what their liabilities are, and there can be neither hardship nor injustice in holding that a bond conditioned for the appearance of a party “ at the next term of the district court to be holden on the first Monday of October,” imposes upon the party executing such bond the duty of appearing on the precise day, to wit, the first Monday; and to this effect would seem to be the cases of Wilson v. The State, 6 Blackf. 212; People v. Blankman, 17 Wend. 252; State v. Crowley, 60 Me. 103; State v. Eastman, 42 N. H. 265; State v. Davis, 43 N. H. 600.

It is claimed that scire facias is not the proper remedy. We think differently. The recognizance, when filed with the clerk, becomes a matter of record. Shattuck v. The People, 4 Scam. 481; Benedict v. Cutting, 13 Metc. 181.

It is insisted that a recognizance, taken before a justice, must substantially set forth proceedings, which evidence the authority of the justice to require bail from the accused, or recognizance, is void. The better opinion seems to be otherwise. If the official character of the magistrate appear, and the offense for which bail is entered be bailable, by the statute, this would seem to suffice. The recognizance need not recite all the facts which show that the officer had jurisdiction to act in the particular case. The People v. Kane, 4 Den. 530; McFarlan v. The People, 13 Ill. 9.

Nor need the offense be described with the same particularity as in an indictment. The offense specified in the recognizance is that of being a common gambler. This is as specific as that mentioned in the case of the United States v. Deins, 1 Bond, 103, where the condition was to answer for the crime of stealing from the mail of the United States. See also State v. Hamer, 2 Ind. 371.

When a scire facias issues upon a joint and several recognizance of this nature, and service is had upon one or more of the cognizors, execution may be awarded against those served with process, upon a return of nihil against such as are not found. Sans v. The People, 3 Gilm. 334; Wheeler v. The People, 39 Ill. 432.

It is insisted that a return of “not found” is not equivalent to a return “nihil,” or “that he hath nothing in my bailiwick.” The object in suing out the writ of scire facias is to compel the defendants to show cause, if any, why execution should not be awarded against them. The object of the writ is not to ascertain whether goods or chattels can be found in the bailiwick out of which to satisfy the penalty of the recognizance, but to reach the person and notify him that unless he show cause, an execution shall issue. It would seem that the proper return would be “not found.”

We find no error in the rulings of the court, and accordingly affirm the judgment.

Affirmed.