Farris v. People

Citations

• 58 Ill. 26

Syllabus

<p>1. Scire facias—pleading. A writ of scire facias stands in the place of both the summons and declaration, and should contain every averment necessary to show a right of recovery; and if there is a variance between the recognizance as set out in the writ, and the judgment of forfeiture, advantage of such variance may be taken under the plea of nul iiel record.</p> <p>3. Pleading—recognizance—variance. Where a recognizance is averred in the scire facias to be.joint and several, a several recognizance can not be admitted in evidence under the scire facias. Nor does our statute, which declares joint obligations, both joint and sevei'ai, make a recognizance, entered into by a number of persons severally, a joint recognizance. Such instruments are governed by the common law.</p> <p>3. Practice—recognisance several. Where principal aud surety enter into the same recognizance, but severally, they may be embraced in the same writ of scire facias to show cause why an execution should not issue against each, for liis several indebtedness. That would not make it a joint scire facias, any more than the recognizance became joint by each entering severally into the recognizance for himself.</p> <p>4. Recognizance'—several—execution. Where a recognizance is several, the execution must be several, as the people can only have execution according to the form, force and effect of the recognizance itself.</p> <p>5. Judgment—-foifeiture of recognisance—pa/rties. Where a judgment of forfeiture on a recognizance was described in the scire facias as being against the principal and five sureties, but when the record was offered in evidence, it appeared that the judgment of forfeiture was against the principal and three sureties: Meld, there was a fatal variance, and that execution could not be awarded against-tliose, against whom there was no judgment of forfeiture. Before a final judgment could berendered, there should be a judgment of forfeiture against them.</p>