State v. Carothers ( 1860 )

Lowe, C. J.

Scire facias upon a recognizance forfeited for the non-appearance of defendant upon a charge of larceny. The record shows that the amount of the bail had been fixed by the court in term time, but that the recognizance was taken in vacation by the clerk of the court, who received and approved of the same. The defense by agreement took the form of a demurrer, insisting that the clerk liad no power under the law to take a recognizance, and therefore the one sued upon was inoperative and void. Although the court below did not sustain this point, we think it was well taken, and that the manner in which the bail bond was taken was a clear departure from the requirements of section 3229 of the Code, and could not therefore be safely sanctioned.

Reversed.