Devine v. State

• Citation: 37 Tenn. 623
• Parties: JOSEPH DEVINE v. THE STATE.
• Decision Date: 30 September 1858
• Court: Supreme Court of Tennessee

37 Tenn. 623

JOSEPH DEVINE

v.THE STATE.

Supreme Court of Tennessee.

September Term, 1858.

FROM MONROE.

This was a scire facias issued from the circuit court of Monroe county against one Morgan and his securities, to show cause against a judgment final upon a forfeited recognizance, entered into in said court for the appearance of said Morgan to answer a charge of counterfeiting. It was pleaded, on behalf of the sureties, that after the recognizance was entered into, and at the time the forfeiture was taken, the defendant Morgan was arrested and was in the custody of the sheriff of Henderson county, in the state of North Carolina, for a felony committed there. To this plea, attorney-general McAdoo demurred. At the January Term, 1858, Judge Welcker sustained the demurrer, and rendered final judgment against the parties on the scire facias, from which Joseph Devine, one of the sureties, appealed in error.

J. B. Cooke, for the plaintiff in error; J. B. Heiskell, and W. B. Reese, Jr., for the State.

McKinney, J., delivered the opinion of the court.

At the May Term, 1856, of the circuit court of Monroe, the plaintiff in error, and one Hensley, entered into recognizance in the sum of fifteen hundred dollars, for the appearance of one Morgan, at the next term of the court, to wit: the September Term, 1856, to answer a charge “for passing counterfeit bank bills,” of which he stood indicted in said court. Morgan failed to appear, and a judgment nisi was rendered against his bail. Two writs of scire facias were issued thereon, both of which were served on the plaintiff in error, and returned “not found,” as to Hensley.

Devine pleaded, among other matters, not necessary to be noticed, in substance, that after their undertaking for his appearance, and before the ensuing term, at which he was required to appear, Morgan was arrested in Henderson county, North Carolina, upon a charge of felony committed in said county and state; and was in custody of the sheriff, upon said charge of felony at the time the forfeiture, in the scire facias mentioned, was taken against his bail; whereby the appearance of said Morgan was prevented, etc.

To this plea there was a demurrer, which was sustained; and this is assigned for error.

The judgment on the demurrer was correct.

The plea is bad. First: It may be true, as alleged in the plea, that at the time the judgment nisi was rendered against the bail, Morgan may have been in confinement, in another state; and it...