State v. McCloskey ( 1857 )

Woodward, J.

Tbe .error first assigned relates to the overruling defendant’s demurrer to the scire facias, and states several grounds of error. • As the defendant answered oyer, no reason is perceived why he does not fall within the common rule, which holds the pleading over as a waiver of the demurrer.

The other assignments relate to the trial and the rulings •of the court thereupon. They are based upon the statements of the bill:

1. That there was no evidence that a writ of error had been sued out.

2. That no fact was proved, showing that the District Court had a right to take the recognizance.

3. That there was no proof of any order of the Supreme Court on Huston to appear at the District Court.

4. That therefore defendant Huston complied with his recognizance.

5. That there was no proof of a recognizance — none of a • writ of error' — none of a trial before the Supreme Court— and none of a disobedience to any of its requisitions.

• This recognizance was, undoubtedly,- designed to operate as a supersedeas with the' writ of error under chapter 184 of the Code, but the case shows no order allowing the writ of error to operate as such, as provided in sections 3090 and 3091. Without this, it is doubted whether the District Court can take the obligation under section 3230, and, -therefore, the question arises on the validity of the bond, which question is made by the defendant. There would seem to be but little room to doubt, in fact, since section 3091, requires that the supersedeas should be allowed by a judge of the Supreme Court. And we understand section 3094, to mean that this judge shall make the order letting the defendant to bail, and prescribing the condition of the recognizance, after which and in .accordance with which, the District Court or .its judge (as well as some other officers), may take the obligation. 'This bond,' or a copy of it, should in all cases be returned to the Supreme Court with the record of the case, and that court should make an order concerning the defendant’s future action, answering to the condition of his undertaking.

In the present case, there was no such order of that court shown, and consequently no breach of the condition. We do not regard the common order to the District Court to proceed, as if there had been no trial, which is contained in the writ of procedendo, as equivalent to the order required upon the defendant. We are not prepared, however, to say, with defendant’s counsel, that he would be entitled to special' notice, if there were a proper order. Perhaps he would be required to take notice of it.

That part of the condition of the undertaking which requires the defendant to sue out a writ of error, is inappropriate, and properly forms no portion of the obligation intended by the law.

The counsel for the State have not laid, as a breach, a failure to prosecute the writ of error, but, on the contrary, their case shows that it was prosecuted. Neither have they claimed that to “ prosecute to effect,” means with success. On the whole, in our opinion, no breach of the condition of the obligation is alleged, and none is proven. . • '

Some minor points are suggested by the prosecution, but none which are available, and it is not necessary to dwell upon them, since we have aimed to determine the cause upon the more substantial grounds.

The judgment of the District Court is reserved.