Williamson v. Mitchell , 1 Pen. & W. 9 ( 1829 )

Per Curiam.

It is impossible to support this judgment. A recognizance is an obligation of record, with condition to pay money, or do .some particular act; and it is in most respects like any other bond, the chief difference consisting in this, that a bond is the creation of a fresh debt, and a recognizance the acknowledgment of a former one. Here the justice has certified that the bail was “bound in a mm sufficient to cover all costs.” What was that sum? It was impossible for the appellee to know what to demand. Even the act of assembly under which the proceedings were, requires the bail to be taken in a mm; and it is not sufficient for the justice to state the fact generally in the words of the act, without shewing in the recognizance what the sum was.

' In an indictment it is not enough to pursue the. very words of a statute which has created the offence, it being necessary to allege the special fact in which the offence consists. (2 Hawk. 354.) Here the fact by which only an obligation could be incurred, the acknowledgment of indebtedness in a sum certain — is not alleged. The recognizance is therefore void; and even if it were valid as a stipulation, still an action of asmmpsit, and not of scire facias, would be the remedy. But the scire facias is even more defective than the recognizance. It neither recites the recognizance, nor alleges any fact to entitle the plaintiff to execution; but resembles a rule to shew cause more than any thing else. Its defects are not cured by the verdict, because it sets forth nothing, either in substance or in form, which resembles a cause of action, and being in the place of a declaration, it is incurably vicious. It mortifies one’s professional pride to find such a writ among our records, for which the alleged incompetency of the prothonotary is no apology, it being the business of the attorney to see to the form of the process. Such looseness is discreditable to the practice of our courts, and we are therefore, compelled to speak of it with marked disapprobation.

Judgment reversed.

Hustok, J. and Smith, J. dissented.