Farris v. People of State
| Decision Date | 31 January 1871 |
| Parties | GEORGE W. FARRIS et al.v.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Macoupin county; the Hon. EDWARD Y. RICE, Judge, presiding.
This was a suit by scire facias, brought by the people of the State, in the Macoupin Circuit Court, against George W. Farris, Stephen Sawyer, Warren Sawyer, William N. Mitchell, John Higgins and John Wright.
It is averred in the scire facias, that George W. Farris, with others, was taken before a justice of the peace on a criminal charge of aiding, abetting and being accessory to the shooting of one Jasper Smith, and that after inquiring in regard thereto, the justice of the peace adjudged George W. Farris to give bail for his appearance at the next term of the Circuit Court of Macoupin county; that Farris, and the other defendants, on the 4th day of October, 1869, entered into their several recognizance, to the People of the State of Illinois, in the sum of $300, before the justice of the peace, for the appearance of George W. Farris to answer the charge preferred against him; that the recognizance was duly certified by the justice, to the clerk of the circuit court, and became a matter of record in that court. At the December term, 1869, of that court, an indictment was preferred against George W. Farris, and he failing to appear, his default was entered and his recognizance was declared forfeited, by the court. At the same time, a judgment of forfeiture was entered against Stephen Sawyer, John Wright and John A. Higgins, his sureties in the recognizance, and a scire facias was awarded. The writ of scire facias, issued to the March term, 1870, set out a judgment of forfeiture against Farris and all five of his sureties, and described the recognizance as being joint and several. A plea of nul tiel record was filed. A trial was had, when the court made the judgment of forfeiture absolute and awarded execution.
Mr. JOHN I. RINAKER, for the plaintiffs in error.
Mr. WASHINGTON BUSHNELL, Attorney General, for the People.
The writ of scire facias, on a recognizance, stands in the place of both the summons and declaration in the case, and, like the declaration in any other case, should contain every material allegation necessary to a recovery. Thomas v. The People, 13 Ill. 696; Lawrence v. The People, 17 Ill. 172.
If there is a variance between the recognizance and the conditional judgment entered therein, as set out in the scire facias, and that offered in evidence, it will be fatal, and the variance may be taken advantage of under the plea of nul tiel record. Slaten et al. v. The People, 21 Ill. 29.
The recognizance itself, is not well pleaded. It is averred in the scire facias, that the plaintiffs in error entered into a recognizance by which they ““jointly and severally” acknowledged themselves bound. That is not the legal effect of the obligation. By the express terms of...
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