Smith v. Spencer

63 Ga. 702

Opinion

Jackson, Justice.

1. This was a scire facias to enforce the forfeiture of a voluntary bond executed in New York, and one objection to the proceeding was that this is not the appropriate remedy. A voluntary bond may be forfeited by scire facias. 4 Ga., 329.

It cannot matter, we think, that it was executed in New York. It is not the less voluntary because made in New York, and it derived its validity from its deposit in the clerk’s office. It does not lie in the mouth of the surety who signed it and deposited it, and thereby procured the release of the person charged with crime, to make the objection that he executed it in New York.

2. Nor does it matter how it was executed there unless the defendant denied its execution on oath. Whether the commissioner of deeds put a seal to his attestation or not is therefore immaterial. The bond was not denied on oath as the act and deed of the surety.

3. When delivered to the clerk, the bond became an, office paper, and as such, if lost, could be established by copy instanter and without notice.

4. But it appears to bear date prior to the indictment, and yet recites the indictment as being the criminal charge on which the defendant was bailed; that is, the condition of the bond is, that whereas the defendant was charged with perjury at the April term of the court, if the bail will deliver his principal to answer that offense so charged, then the bond to be void, etc.

The April term of Camden court was the Tuesday after the fourth Monday, and thé bond is dated the 10th of Api'il of the same year. Therefore the variance, to say the least, needs explanation. The superior court: having granted a new trial, and there being this variance between the allegation in the soire facias and the proof, the former making the same allegation that the bond was executed to secure the defendant’s presence under this indictment, this court will not interfere with the judgment, the effect of which is to try the case again.

Judgment affirmed.