Branch v. State , 25 Tex. 423 ( 1860 )

Bell, J.

The scire facias in this case would have been held bad on special demurrer, because it does not show by averments what was the condition of the bond which was the foundation of this proceeding. The allegation that the bond was “conditioned as the law directs,” does not show to the could the facts to enable us to judge whether or not the bond was such an one as is required by law. But this objection is one that should have been pointed out by special demurrer. The demurrer filed by the defendants is a general demurrer, and there is no judgment of the court overruling it, and nothing to show that it was insisted on in the court below. We think the objection - that the scire facias does not show by averment what was the condition of the bond, is not an objection which goes to the foundation of the action, and furnishes no reason for the reversal of the judgment. There was' no motion for new trial, and the record contains no statement of facts. It is argued in behalf of the plaintiffs in error that the bond, if conditioned as the law directs, would only have bound the principal obligor to appear at the Spring Term, 1855, of the District Court for Rusk county, and that the bond was functus officio at the Fall Term, 1857, when the forfeiture was taken. This proposition cannot be maintained. The bond, if “conditioned as the law directs,” would have compelled the attendance of the principal obligor from term to term of the court until discharged by the court. (See Williford v. The State, 17 Tex. R., 653.) Nor is it any objection to the judgment that it was rendered without any service of the scire facias upon the principal obligor. Article 409 of the Code of Criminal Procedure provides that it shall not be necessary after the forfeiture of a recognizance or bail bond, to give notice of the forfeiture to the defendant. It is only necessary to give notice to the sureties. The judgment of, the court below is affirmed.

Judgment affirmed,