Spicer v. State , 9 Ga. 49 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] This is a proceeding by scire facias upon a bond to answer to a criminal prosecution. The bail only was served. He pleaded specially to the action, to the effect that his principal had already given bond for his appearance. A demurrer to the plea was interposed and sustained, and this constitutes the first ground of complaint in the bill of exceptions. It is alleged in the plea, and by the demurrer admitted to be true, that William Spicer, the principal, was arrested and brought before the committing Magistrates-, for die offence of aiding in the escape of one Josiah Hudgins from the jail of which he, Spicer, was the keeper. And that he gave bond to answer to the charge; that some short time 'thereafter, another warrant was issued against him, for the offence of permitting the prisoner, while in his custody as Jailor, to escape ; that while under this second arrest, he executed the obligation, which is the foundation of this action, and that he was discharged by the Justices. But the plea does not allege that the giving of this second bond by Wm. Spicer, was the condition of his discharge, Even if it did, it would constitute, we apprehend, no sufficient defence for the bail, who acted voluntarily in the premises. Cro. C. C. 16.

[2.] The plea is defective in another particular; it does not aver, except argumentatively, that the first bond taken was good and sufficient in law. It states that the securities justified upon being required to do so, and that no proof was produced to the Court of Inquiry, and no investigation had as to the sufficiency of this- first bond ; whereas, it should have 'affirmed, positively, that it was sufficient. Ordinarily, bail is absolute in the first instance ; but if the magistrate be deceived, he may require fresh sureties. Hawk. b. 2, c. 15.

[3.] It is objected, that no judgment can be rendered upon the scire facias — 1st. Because there was no record, showing that William Spicer, the principal, was called and did not appear. 2d. Because the previous judgment of forfeiture was void for uncertainty; the same being for no amount, and in such general terms, that no final judgment can be rendered on it.

' This Court, in Park vs. The State, (4 Kelly & Cobb,) held, that the record must show a judgment of forfeiture; and this fact is fully evidenced by this record. It recites, that William Spicer was called in open Court three times, and required to appear and defend his case, and that Rowan Spicer, the defendant, was called and required to produce the body of his principal, which he failed to do ; whereupon, their bond was declared to be forfeited, and the Clerk was ordered to issue a scire facias thereon, in terms of the law.

By the Act of 1831, (Prince, 470,) it is provided that, whenever any person shall enter into any bond for the appearance of another to answer for any offence committed against the laws of the State, and shall fail to produce the body of his principal at Court, according to the tenor and effect of the bond, when required to do so, that it shall be the duty of the Solicitor General or prosecuting officer to forfeit said bond in the manner heretofore practiced in this State.

[4.] It is apparent, from the record before us, that all this has been done in this case. Counsel for the plaintiff in error, assuming the Common Law doctrine, as contained in Tidd,p. 1091, and other works of practice, that a scire facias is founded on a record, and consequently, must be restricted to it, insist that, inasmuch as the judgment of forfeiture does not set forth the amount of the bond, there can be no recovery. The answer to this is, that by the Statute which I have just recited, the Clerk is directed to issue the scire facias upon the bond, and that admitting the omission in the judgment of forfeiture to recite the amount of the bond to be fatal, by the English practice, still, it is fully obviated by our own legislation.

Upon all the grounds, then, taken in the bill of exceptions, the judgment below must be affirmed.