State v. Mills, 19 N.C. 552, 2 Dev. & Bat. 552 (1837)

Dec. 1837 · Supreme Court of North Carolina

19 N.C. 552, 2 Dev. & Bat. 552

THE STATE v. MATHEW MILLS.

A scire facias, reciting that the defendant “ was lately hound in a recognizance, in, &c., for the appearance of T. S., at, &c., that the said T. S. failed to make his appearance, as he was bound to do; and that it was thereupon ordered by the said Court, that he forfeit his recognizance, according to law,” and commanded the sheriff to make known, &c., is irregular, uncertain, and defective. And although the objections to it cannot be taken upon a plea of ml iiel record, a cassetur is the only proper judgment.

A recognizance is a debt of record, and is of the nature of a conditional judgment, which the recorded default makes -absolute, subject only to such matters of legal avoidance as may be shown by plea; or to such matters of relief as may induce the Court to remit or mitigate the forfeiture; and the object of a sci.fa. is to notify the cognizor to show cause why the cognizee should not have execution, of the sum acknowledged. The act of 1777, (1 Rev. SStat. c. 35, sec. 39,) makes it imperative that the sci.fa. shall issue and judgment be had thereon, previous to suing out execution upon a forfeited recognizance. But no judgment of forfeiture is thereby required before the issuing of the scire facias.

This was a scire facias, which, after reciting that the defendant was lately bound in a recognizance in the sum of five hundred dollars, for the appearance of Theophilus Stubblefield, at the Spring Term, 1837, of the Superior Court of Rockingham; that the said Theophilus failed to make his appearance, as he was bound to do; and that it was thereupon ordered by the said Court, that he forfeit his recognizance, according to law, commanded the sheriff to make known to the defendant to appear at the next succeeding term, and show cause why the said forfeiture should not be made absolute. The defendant pleaded “ nul tiel record.” The solicitor for the state showed a separate recognizance entered into by defendant for the appearance-of Stubblefield at the Spring Term, 1837, of Rockingham Superior Court; also the record of that term, in which was the following entry. “ State v. Theophilus Stubblefield. Theophilus Stubblefield called and failed. Judgment nisi.”

His Honor Judge Saunders sustained the defendant’s plea, and rendered a judgment in his favour: from which Mr. Solicitor Poindexter appealed.

The Attorney General, for the state.

J. T. Morehead, for the defendant.

Gaston, Judge.

The scire facias in this case,\and the proceedings upon it are so irregular, defective and uncertain, that we think the only proper judgment for this Court to render is, that the same be quashed. (His Honor here stated the case as above, and proceeded.).

The scire facias is defective, in not setting forth the recognizance fully — to whom, or where made; and that the same is of record in the Court from which the sci.fa. was sued out. It is defective and uncertain, in setting forth that Stubblefield failed to appear, as he was bound to do; instead of averring that Stubblefield failed to appear at the Court, when and where, according to the condition of the defendant’s recognizance, the said Stubble-field was to make his appearance. It is irregular, as well as uncertain, in setting forth that it was ordered that he should forfeit his recognizance, and requiring of the defendant to show cause why this forfeiture should not be made absolute. What record was denied by the defendant’s plea, we are unable to ascertain; for there is no averment in the scire facias of any record. If it denied the recognizance, then the judge erred in adjudging that there was no such record; for the case shows that a recognizance of record corresponding with that described in the scire facias, (so far as a recognizance is therein described,) was exhibited to the Court. If it denied the “ order” that either Stubblefield or the defendant should forfeit his recognizance, there was no error in finding the plea true; but the plea, so understood, was no defence against a proper sdre jfadas.

A recognizance duly entered into is a debt of record, and the object of a sdrefadas is to notify the cognizor to show cause, if any he have, wherefore the cognizee should not have execution of the same thereby acknowledged. In England, before our Revolution, when a recognizance was acknowledged, with condition to be void upon the appearance of the cognizor or any other person in Court, and the party did' not appear, the default was recorded; and thereby the recognizance became absolute or forfeited; and being estreated (that is to say, taken out of the other records,) and sent up to the Court of Exchequer, the King, upon an affidavit of danger of losing the debt, and on the fiat of one of the barons, might have an immediate extent against the body, goods and lands of his debtor. But the ordinary mode was to sue out a sdrefadas thereon. Our act of 1777, (see 1 Rev. Stati c. 35, s. 32,) has made it imperative, that before suing out execution on a forfeited' recognizance, a sdrefadas shall issue, and judgment be had thereon. But no judgment of forfeiture is thereby required previous to the issuing of the sdre fadas. The recognizance is of the nature of a conditional judgment, and the recorded default makes it absolute, subject only to-such matters of legal avoidance as may be shown by plea, or to such matters of relief as may induce the Court to remit or mitigate the forfeiture.

Per Curiam. Proceedings quashed.