Roberts v. Commonwealth , 7 Bush 430 ( 1870 )

JUDGE LINDSAY

delivered the opinion oe the court.

Section 80 of the Criminal Code of Practice provides that “no bail-bond or bail recognizance shall be deemed to be invalid by reason of any variance between its stipulations and the provisions of this Code, ... or of any other irregularity, so that it be made to appear that the defendant was legally in custody, charged with a public offense, and that he was discharged therefrom by reason of the giving of the bond or recognizance, and that it can be ascertained from the bond or recognizance that the bail undertook that the defendant should appear before a magistrate for an examination of the charge, or before a court for the trial thereof.” In this case the minutes of the examining court recite only “that the defendant, and A. Gr. Roberts and Tolley Findley, his sureties, were duly recognized in the sum of two hundred dollars, conditioned as the law directs.” These conditions should have been fully set out in the recognizance, or at least in the minutes of the examining court, reciting the execution of the same, so that it could have been ascertained therefrom that the bail undertook that the defendant should appear before some court of competent jurisdiction for an examination of the charge, or for the trial thereof.

Whether or not they did so undertake is a question for the court trying the forfeiture and not for the examining court to determine. Waiving all other objections to the form and execution of the recognizance in this case, it seems to us that the defect pointed out is fatal. The Code dispenses with all pleadings in actions on forfeited bail-bonds or recognizances; but, as the undertaking itself is the basis of the action, it must, in connection with the order of forfeiture, present a perfect cause of action. No such cause of action is presented by the records in this proceeding; and, though the answer was defective, there is not enough in the case to sustain even a judgment by default.

The judgment is therefore reversed, and the cause remanded with instructions to dismiss the proceeding.