Hildreth v. State

5 Blackf. 80, 1839 Ind. LEXIS 14

• Court: Indiana Supreme Court
• Decided: May 21, 1839
• Status: Published

Opinion

Dewey, J.

Rufus Hildreth and Henry Hildreth entered into a recognizance, by which they “acknowledged themselves to owe and stand indebted to the state of Indiana in the sum of 1,000 dollars each,” provided default should be made in the condition thereof. The recognizance was forfeited by their default; upon which a joint scire facias issued against both.

Henry Hildreth, the plaintiff in error, appeared and demurred to the scire facias, assigning for cause of demurrer, that the recognizance was several, and would not sustain a joint scire facias. The Court overruled the demurrer, and rendered judgment of execution against him.

J. G. Marshall and C. Cushing, for the plaintiff. W. Quarles, for the state.

We think the decision was wrong. The recognizance was several, and not joint and several. Each recognizor undertook for himself only to pay 1,000 dollars. Were the recognizance joint and several, the state could hold either of the recognizors to the payment of the aggregate sum for which both were bound. This, we think, would be doing violence to the letter and spirit of the recognizance.

In the case of Collins et al. v. Prosser et al., the Court of King’s Bench held a bond by which the obligors bound themselves in these words — “ We bind ourselves and each of us for himself for the whole and entire sum of 1,000/. each,” to be a several, and not a joint and several bond. 3 D. &R. 112.

As the recognizance was several, each recognizor was severally liable ; but a joint scire facias will not lie upon a several recognizance. Thompson et al. v. The State, 4 Blackf. 188.

There was another cause of demurrer assigned which cannot be sustained.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the demurrer set aside. Cause remanded, &c.