People v. Witt

19 Ill. 169

• Court: Illinois Supreme Court
• Decided: December 15, 1857
• Status: Published

Opinion

Skinner, J.

This was an action of debt on a recognizance taken in a criminal prosecution.

The declaration counts upon the recognizance as a record of the Circuit Court, and alleges that the same was, by the judgment of said court, forfeited. The defendants interposed the plea of nul tiel record, upon which issue was taken, and the cause was tried by the court. The plaintiffs, to maintain the issue on their part, offered in evidence the recognizance described in the declaration and the record of said court of a forfeiture, which recites the default of the cognizors, and adjudges the recognizance forfeited. The defendants objected to this evidence, and the court, sustaining the objection, rendered judgment against the plaintiffs. No cause appears for rejecting the evidence for variance, but it is insisted that a formal judgment of recovery of a sum certain, is essential to a forfeiture of the recognizance.

This is not the law. The proper course, on default in performance of the condition of a recognizance, is to enter a judgment, declaring the same forfeited. Pinckard v. The People, 1 Scam. R. 187.

The recognizance of record, and judgment of forfeiture, are competent and sufficient evidence, under appropriate averments in scire facias, to authorize judgment of execution, “ according to the form, force and effect of the recognizanceand, in an. action of debt, to authorize judgment for the amount of the recognizance. Passfield v. The People, 3 Gil. R. 406 ; Alley v. The People, 1 Gil. R. 109; Kennedy v. The People, 15 Ill. R. 418.

Judgment reversed and cause remanded.

Judgment reversed.