A recognizance is a debt of record acknowledged before a court of competent jurisdiction, witb condition to do some particular act. S. v. Smith, 66 N. C., 620.
It need not be executed by tbe parties, but is simply acknowledged by them, and a minute of the acknowledgment is entered by the court. S. v. Edney, 60 N. C., 471.
It binds the defendant to three things:
(1) To appear and answer either to a specified charge or to such matters as may be objected to.
(2) To stand and abide the judgment of the court.
(3) Not to depart without leave of the court. S. v. Schenck, 138 N. C., 562.
It follows, therefore, upon these well settled principles, that the judgment nisi is regular and valid, as the defendant and his surety entered into the recognizance, and the defendant departed without leave of the court.
The surety contends, however, that no final judgment can, in any event, be entered condemning the deposit, because it entered a special appearance, and it has not been served with process.
The answer to this position is twofold. In the first place, the case states that the surety entered an appearance, which, nothing else appearing, would mean a general appearance, and would be a waiver of the service of process; and in the next place, if the appearance had been entered special, it was in legal effect general, because the motion of the surety affected the merits. Scott v. Life Association, 137 N. C., 517.
It is said in Grant v. Grant, 159 N. C., 531, that it was held in the Scott case, “that a special appearance cannot be entered except for the purpose of moving to dismiss for want of jurisdiction, and that if the motion affects the merits, the appearance is general,” and the Court then quotes from the same case with approval, as follows: “The test for determining the character of an appearance is the relief asked, the law looking to its substance rather than to its form, if the appearance is in effect general, the fact that the party styles it a special appearance will not change its real character. 3 Cyc., pp. 502, *411503. The-question always is, what a party has done, and not what he intended to do. If the relief prayed affects the merits or the motion involves the merits, and a motion to vacate a judgment is such a motion, then the appearance is in law a general one.”
"We are, therefore, of opinion there is no error.
Affirmed.