Graham and Others v. The State

Graham and Others v. The State. Thursday, December 12. In the case of a forfeited recognizance, an execution cannot be awarded against a recognizor, on whom a scire facias has not been served, and who has not appeared, until there have been two returns of not found to writs of scire facias against him, directed to the sheriff of the county in which the recognizance was taken. ERROR to the Wabash Circuit Court. [MAJORITY — Blackford, J. Per Curiam.] Blackford, J. — Minor Graham and three other persons entered into a joint recognizance at the March term, 1841, of the Wabash Circuit Court, in the sum of 2,000 dollars. The recognizance was conditioned that one John Graham should be and appear from day to day of said term, and answer the state on an indictment against him for forgery. At a subsequent day of the term, the said John Graham and his said sureties were called and made default, the recognizance of the sureties was declared forfeited, and a scire facias ordered to be issued. In July, 1841, a scire facias in the cause was issued by the clerk, directed to the sheriff of La Porte county, requiring the said sureties to show cause why execution should not issue, &c. This writ was returned to the next term served on two of the defendants, and “ not found ” as to the two others. In February, 1842, another scire facias issued, which was directed to the sheriff of Wabash county, requiring said sureties to show cause, &c., and which was returned “not found” as to all the defendants. At the March term, 1842, the said sureties were called and made default, and an execution was ordered to be issued against them. This judgment ordering execution is erroneous. Before an execution can be awarded against a recognizor upon whom a scire facias has not been served, and who has not appeared, there must be two returns of “ not found ” to writs of scire facias against him, directed to the sheriff of the county wh*ch the recognizance was taken. The state has not proceeded according to this rule, in the case before us, as to two of the defendants. J. H. Bradley, for the plaintiffs. A. A. Hammond, C. Fletcher, and O. Butler, for the state. Per Curiam. — The judgment is reversed. Cause remanded, &c.