Lawton v. State

5 Tex. 270

Opinion

Wheeler, J.

A recognizance is defined to be “an obligation of record which a man enters into before some court of record or magistrate duly authorized, with condition to do some particular act.” (3 Toml. L. D., 297; Bac. Abr.) The only material respect in which it differs from another bond is that an ordinary bond is the creation of an original debt or an obligation de novo; a recognizance is the acknowledgment of a former debt upon record. (Ib.) A bond taken by an officer of court by authority of law and required to be returned into court, when so returned and placed upon the files of the court, is an obligation of record. (10 M. R., 201; 2 Mass. R., 481.) It has the force and effect of an obligation entered into before a court of record. It is in effect a recognizance. And a recognizance is considered as a judgment, and will support a scire facias. (Bac. Abr., “ Scire Facias.”)

But the bond in this case was taken payable to the Governor, &c., whereas the statute directs that it be taken “to the State..” (Acts of 1846, p. 267. sec. 9.) Repeated decisions of this court have settled that a statutory bond, to be valid and effectual as such, must in every essential particular strictly conform to the statute. The present does not. it is conceived, so conform as to support a proceeding upon it by scire facias as upon a statutory bond. The judgment must therefore be reversed and the proceedings be set aside and dismissed.

Reversed and dismissed.