Opinion
January Term, 1876.
It is competent for a Judge of the Superior Court to authorize the sheriff, or any other person, to take a recognizance from a defendant for his appearance at the next term, to answer, etc., his Honor having first fixed the amount of such recognizance.
Although the recognizance authorized to be taken is put in the form of a bond, with conditions, signed and sealed by the defendants, yet it is valid as a recognizance.
Shipp Bailey, for defendants.
Attorney General Hargrove, for the State.
SCIRE FACIAS, on a forfeited recognizance, heard before Judge Schenck, at Fall Term, 1875, of the Superior Court of MECKLENBURG County.
The defendant Houston had been indicted for forgery, and was in custody when, upon his own affidavit, the case was continued. The court, after such continuance, made an order to discharge him from custody, upon his entering into recognizance with sureties, in the sum of twenty-five hundred dollars, for his appearance at the next term. This he did by executing a bond, with the other defendants as his sureties, in the sum specified and payable to the State of North Carolina, conditioned to be void should the defendant Houston (550) appear, etc.
At the ensuing term he was called and failed, and a judgment nisi entered against him. To the scire facias which issued, the defendants plead nul tiel record. His Honor found that there was such a record, and gave judgment accordingly. From this judgment the defendants appealed.
It was competent for his Honor to authorize the sheriff or other person, to take the recognizance of the defendants for the appearance of the principal defendant at the next term, to answer the charge of the State against him, his Honor having fixed the amount of the recognizance. And although the recognizance authorized to be taken was put in the form of a bond with conditions, signed and sealed by the defendants, yet it is valid as a recognizance.
The taking of a recognizance consists in making and attesting a memorandum of the acknowledgment of a debt due the State, and of the conditions on which it is to be defeated. State v. Edney, 60 N.C. 463.
There is no error. Let this be certified.
PER CURIAM. Judgment affirmed.
Cited: S. v. Jones, 88 N.C. 685; S. v. Jones, 100 N.C. 440; S. v. Morgan, 136 N.C. 596; S. v. Bradsher, 189 N.C. 407.
(551)