
    The State vs. Cherry.
    CRIMINAL Law. Recognizance —ambiguity—construction» The grammatical connection of words as relative and antecedent will not be allowed to prevail to the de&truction of the meaning of the sentence. JNFoy’s 3d Maxim; Jenkins Cent. 180. Thus, where three persons, two of them of the same surname; entered into a recognizance; in the following order, — T. C. in the penalty of $3000, and F. and G.Y. C., in the penalty of $3000 jointly and severally, conditioned to be void if the said C. appeared: Held, that by the scope of the paper, no am'biguity existed as to which C. was meant by the words, “said C.”
    SAME. Same. Where the interpretation of an instrument is rendered obscure by a conflict of its grammatical construction with its scope and purpose, resort may be had to extrinsic evidence to determine the sense. Roberts on Frauds, 26; 27.
    SAME. Scire facias. If a sci; fa. recite that certain justices by name returned a recognizance into the clerk’s office, and that it was witnessed by them, these are' sufficiently certain allegations, that the recognizance wa3 acknowledged before them.
    A state’s warrant was issued by Isaac Dennison, a justice of the peace for Montgomery county, on the 22d of February, 1836, against Thomas Cherry, upon a charge of fraudulently having and keeping in his possession certain counterfeit coins. The defendant was thereupon brought before three other justices of Montgomery for trial on the same day; and they ordered him to enter into a recognizance for his appearance at the circuit court, to answer the charge, — himself in the penalty of $3000, and two sureties in the penalty of $ 3000, jointly and severally, or stand committed. He gavd the recognizance and it was acknowledged first by the defendant, Thomas Cherry, then by David Fields, and lastly by Garrard Y. Cherry, and conditioned that the “said Cherry” should appear, &c., thus leaving a grammatical ambiguity as' to which Cherry was meant by the words, “said Cherry.” And the warrant and recognizance were filed by the justices in the clerk’s office of the circuit court of Montgomery. At May term, 1836, the defendant was indicted for passing, and for keeping counterfeit coins. He failed to appear, and a forfeiture of the recognizance was taken and entered, and writs of scire facias were awarded against him and his bail. The writs were issued on the 23d of June, and returned at September. Term, 1836, made known to the bail, and not to be found as to the defendant. An alias was issued for him, which was returned “net found” at May Term, 1837, when the bail appeared, and pleaded to the writs of scire facias, nul tiel record, upon which the Attorney General, Turner, joined issue. At May Term, 1838, the cause was argued before his Honor Judge Martin,- of the 7th circuit, upon the plea, which of course involved an inquiry into the validity of the recognizance; and also as upon a demurrer, taken at the bar, to the scire facias, involving the question of its sufficiency. His Honor took an advisement; and at May Term, the cause was again argued before his Honor Judge Barry, of the' eleventh circuit, who sustained the plea, and gave judgment — “that there is no such record as is set forth and described in the scire facias against the defendant, &c. The Attorney General appealed itf error.
    December 14.
    The portions of the recognizance and scire facias, which are necessary to understand the questions made in this count, are recited in the opinion of the court. But the principal question was as to the ambiguity in the recognizance.
    The Attorney General insisted, on behalf of the state, that it was competent for the court to look into the other por-of the record to obtain from them an elucidation of the obscurity in the phraseology of the recognizance, which was no more at any rate than a mere grammatical ambiguity. Roberts on Frauds, 27. He said, moreover, that the meaning of the parties to a recognizance, as well as to any other writing, was to be sought by all the ordinary means of interpretation. Mere grammatical construction was not to be followed to the subversion of this intent; but, on the contrary, was in no case to be resorted to, except where the other indicia, appearing in the body of the writing, failed to remove doubts as to the meaning of the parties; and most certainly was not to be allowed to raise doubts, where otherwise none could exist.
    Cook, for the defendant in error,
    argued as to the sufficiency of the scire facias, that it was bad for the following reasons:- — !. It does not show that the recognizance was taken before the justices who returned it into court. No person but a judicial officer bad right or jurisdiction to take a recognizance, so as to make it a record on which a scire fa-cias would lie, or on which the party could be called in court. Now, although they are staled to be judicial officers, it is not stated the acknowledgment was made before them, much less is it stated that it was made before them as justices of the peace.
    December 17.
    2. It is not stated in what county it was taken. The words, said county, in the scire facias have no antecedent to which they can refer, and they are only used in reference to the warrant. There is no allegation in the scire facias that the recognizance was taken in the state, if it was taken by the justices.
    3. The scire facias does not show for what offence the warrant against Thos. Cherry was, or that it was for any off fence known to the law. It may have been for a misdemean- or, or it may have been for nothing; if so, then the- justices would have no jurisdiction to take a recognizance in favor of the state to answer any charge.
    4. It is not stated that the justices were justices of Montgomery county, or of the state.
    He contended, that the recognizance was void for uncertainty, because it does not appear which of the two Cherry’s before mentioned was to appear and answer the state. The words, the “said Cherry” applies as well to Garrard Y. as tc Thomas Cherry, and Garrard Y. never was called to answer the state, but only to bring the body of Thomas Cherry. Indeed, by a fair grammatical construction, the word “said” refers to Garrard Y. Cherry, being the last antecedent of that name.
    He cited Bankhead vs. Saunders, 2 Harris & Gill, 82; and the Commonwealth vs. Daggett, 16 Mass. R. 447, to show that the court cannot look out of the recognizance itself, to ascertain its meaning.
   Green, J.

delivered the opinion of the court.

1. It is insisted by the defendants, that there is an ambiguity in the recognizance in this case, upon its face, which' renders it void for uncertainty. It is in the following words: “Be it remembered, that on 22d day of February, 1836, personally appeared, Thomas Cherry, David Fields, and Garrard Y. Cherry, before us, acting justices of the peace, for the county of Montgomery, and acknowledge themselves to stand justly indebted to the State of Tennessee, that is to say, the said Thomas Cherry, in the sum of three thousand dollars, and the said David Fields, and Garrard Y. Cherry, in the sum of three thousand dollars, jointly and severally, to be levied of their goods and chattels, lands and tenements, but to be void if the said Cherry shall make his personal app.earance before the judge of our circuit court,” &c.

It is insisted, that we cannot perceive which of the persons, Thomas, or Garrard Y. Cherry, is bound to appear; that the words, “said Cherry,” may refer to either, but do more grammatically refer to Garrard Y. Cherry, as the last antecedent.

It is true, that if there were nothing to control the application of. the words, “said Cherry,” they would grammatically refer to Garrard Y. Cherry, as the last one previously mentioned; but if from the whole instrument, we can satisfactorily perceive that they were not intended to refer to Garrard, but to Thomas, we are to construe the recognizance according to the intention of the parties, and not according to its grammatical sense. Thomas Cherry is first mentioned in the recognizance, and is bound in the sum of three thousand dollars; then Garrard Y. Cherry and Fields are mentioned in connection, and are.jointly and severally bound an tbie sum of .$3000. We never, see one .of, the bail entering into .his obligation, and then the principal and,,the 'Other, surety coming forward together, and jointly .agreeing, to be.bound. But it,.would..be.still more uncommon and,absurd for one pf the, sureties to, be bound in $3,000,. apd the other surety,and principal Jointly in only $3000. Rut, that both these unusual and incongruous facts should concur in .the satpe recognizance., is. not to be supposed prohable.

We must perceive, therefore, that the whole stress and scope of the instrument indicate that Thomas Cherry is referred to by the words, “said Cherry,” so that the ambiguity, which it is contended that these words create, does not exist.

But if it were not sufficiently clear, to enable the mind to determine with absolute certainty, the application of these words, from illustrations drawn from other parts of the instrument, yet as it must be seen, that those passages reflect a strong auxiliary light upon the words in question; they afford sufficient ground for the introduction of extrinsic evidence. Roberts on Frauds, 27.

Rut we do not think a reference to such evidence necessary. We are satisfied from the whole instrument that Thomas Cherry is referred to, and that he was bound to appear according to the recognizance.

2. Upon the demurrer to the scire facias, it is insisted that it is ill, because it does not appear that it was taken by persons authorised to take it. It recites that, “Whereas heretofore, to wit, on 23d day of February, 1836, James Wheatly, A. Rogers, and N. F. Trice, Esquires, justices of the peace for said county, filed in the clerk’s office of the circuit court for said county, a warrant in the name and on behalf of the State of Tennessee, against Thomas Cherry, together with a recognizance, by which,” &c. Then after reciting the undertaking of the parties, it uses these words, “which said recognizance, signed and sealed by said parties, and attested by said justices of the peace,” &p.

The recognisance was signed and sealed by the parties, and attested by the justices, and by them delivered to the clerk with the'warrant, upon which'it is founded. These allegations make it certain, to a common extent, (which is all the law requires,) that the recognizance was taken before these justices. We are therefore of opinion the court erred in rendering judgment for the defendants, on the plea of nul tiel record, and the judgment should he rendered for the state.

Reverse the judgment,  