Swinney v. State

16 Ind. 309, 1861 Ind. LEXIS 149

Opinion

Per Curiam.

This was an action by The State against Thomas W. Swinney and others, upon a recognizance. The defendant demurred to the complaint, but his demurrer was overruled and he excepted. Issues of fact were then made and submitted to the Court, who found for the plaintiff, and, over a motion for a new trial, rendered judgment, &c. In this case, the record fails'to show that a copy of the recognizance was filed with the complaint; and for that reason the proceedings must be held defective. Price v. The Grand Rapids, &c. Railroad Co., 13 Ind. 58; McClasky v. The Same Company, ante, p. 96. These cases decide that “ The rule, that when a pléading is founded upon a written instrument, the original, or a copy thereof, must be filed with the pleading, is imperative.” 2 R. S., § 78, p. 44.

M. Jenhinson, for the appellant.

The judgment is reversed, with costs. Cause remanded, &c.