O'Brien v. People

Citations

• 41 Ill. 456

Syllabus

<p>1. Recognizance — evidence—when the specific objection to evidence must be made. In a proceeding by scire facias upon a recognizance, an objection that the recognizance, when offered in evidence, does not appear to have been filed or made a matter of record in the Circuit Court, cannot be availing unless that specific objection is taken; a general objection to the recognizance will not suffice for that purpose.</p> <p>2. Scire eacias on recognizance — whether it should appear the principal was indicted. In such a proceeding, where the recognizance is conditioned for the appearance of the principal at a certain term of the court, “ to answer to an indictment to be preferred against him for larceny, and to do and receive what shall, by the court, be then and there enjoined upon him, and shall not depart without leave,” it is not necessary to aver and prove that an indictment was ever found, in order to hold the sureties liable.</p> <p>3. Same—variance in the name of the principal, in the body of the recognizance and as signed by him —pleadings and proofs in that regard. Where the condition of a recognizance provides for the appearance of John Empie, and the instrument is signed Sylvester Empie, it is competent, in a proceeding by scire facias thereon, to aver and prove that Sylvester Empie was the principal who executed the recognizance, and was erroneously described in the body thereof as John Empie.</p> <p>4. Former decision. In the case of Tincent v. The People, 25 HI. 500, the rule was inadvertently stated too broadly, in saying the only relief in such case was in equity.</p> <p>5. Judgment without service—who may object. Where a scire facias on a recognizance was served upon the sureties only, and not upon the principal, the objection that judgment was taken against the principal as well as the sureties, cannot be made by the latter; it is such an error as the principal alone can complain of.</p> <p>6. Recognizance—as to the character of offense named. The fac