Gay v. State , 20 Tex. 504 ( 1857 )

Wheeler, J.

A suit on a forfeited recognizance, conditioned for a party’s appearance to answer to an indictment, it has been held, is not a civil action. (Commonwealth v. The County Commissioner, 8 Serg. & R. 151.) It is, it is said, of a criminal nature, “ an instrument to coerce the appearance of the accused to take his trial—a power incident to every criminal Court; a power to commit to prison, to deliver on the recognizance into the custody of the bail; these manucaptors being his jailers, and he constantly in a state of commitment. Though the action is not directly to punish the offender, yet it partakes of punishment for an offence against the State, and is not in the nature of a violation of a contract. Besides, a recognizance is a matter of record, and when forfeited, it is in the nature, in some respects, of a judgment of record.” (Id. 154.) It is an obligation of record; and differs from another bond in this, that it is the acknowledgment of a debt upon record. (5 Tex. R. 271; 2 Bl. Com. 341.) Such being the nature of a recognizance, the statutory provision which forbids the taking of judgment against the sureties, after a discontinuance as to the principal in a civil suit upon a contract, is not applicable to this proceeding. Besides, in a recognizance the relation of principal and surety does not exist as in other bonds or contracts. The surety differs from bail in this, that the latter actually has, or is by law presumed to have, the custody of his principal, while the former has no control over him. The bail may surrender his principal in discharge of his obligation; the surety cannot discharge himself by such surrender. The undertaking of the bail is an original undertaking for the appearance of his principal, to answer to the indictment ; and hence, if he does not have his principal in Court according to his undertaking, he forfeits his recognizance, and it becomes a debt of record, and he a principal judgment debtor, as between himself and the State. There was, therefore, no error in adjudging a forfeiture as to the bail, although the State dismissed the proceeding as to the principal cognizor.

As to the service of process by the Constable, we think his having acted is to be deemed prima facie evidence, that the state of fact existed, which rendered it proper for him to serve the process. He was as competent as the officer who issued the process, to ascertain the existence of the fact, and to show, by his return, its existence. It is to be taken that he had authority until his authority is disputed. (16 Tex. R. 654-59; 15 Id. 138.)

It sufficiently appears by the recognizance, that the party was charged with an indictable offence. The word “ stealing,” in legal parlance, imports a larceny; and “ stealing two bushels of corn” is an indictable offence. -

The judgment is affirmed'. "

Judgment affirmed.