
    The State of Ohio v. Stephen Crippen and others.
    A recognizance, which is an obligation of record entered into before some court of record or magistrate duly authorized, subject to a condition to do-some particular act, is invalid unless it contain all the essential parts both of the obligation and the condition; and none of the material parts of either can be supplied by oral testimony.
    The third section of the act of February 25, 1848, providing that “ it shall not be necessary to enter upon the journal of the court any recognizance which shall be taken during the session of the same; but that every such recognizance shall be deemed valid in law, if taken in open court, and attested by °the clerk of such court,” does not dispense with a writing setting forth the essential requisites of a recognizance.
    A mere memorandum of the clerk of the court, on a loose sheet of paper, setting forth that a recognizance had been entered into in open court by the parties thereto, but not setting out all the material parts, is invalid as a recognizance.
    Writ of error to the district court in Huron county.
    The original action was debt instituted in the court of common pleas of said county, on the 7th day of March, 1851, on a recognizance in the sum of five hundred dollars, entered into before the common pleas at the September term, 1850, by Edwin Harvey, Thomas Harvey, and Stephen Crippen, conditioned for the appearance of Edwin Harvey to answer to an indictment at the next term of the court. It appears that Edwin Harvey, being indicted for passing counterfeit coin, was tried at the February term, 1851; but before judgment he escaped, and a forfeiture of his recognizance was taken.
    An issue was joined on the plea of nul tiel record, and judgment rendered in the court of common pleas in favor of the plaintiff for the amount of the recognizance; from which the defendants appealed. The cause was tried in the district court at the August term, 1852, and judgment rendered in favor of the defendants.
    It appears, from a bill of exceptions taken on behalf of the plaintiff, on the trial in the district court, that to sustain the action an instrument of writing upon a loose sheet of paper was offered in evidence as the recognizance taken in the epurt of common pleas, on which the suit had been brought, which is as follows, to wit:
    “ The Slate of Ohio v. Edwin Harvey. Indictment for passing counterfeit coin. Defendant’s recognizance in $500, with Stephen Crippen and Thomas Harvey, his sureties, conditioned for appearance of defendant at the next term of this court to answer the above indictment. Done in open court, September 20, 1850. Gr. .S. Tombling, deputy clerk.”
    It also appears, from the bill of exceptions, that the clerk of the common pleas, at the time the recognizance was taken, *was introduced as a witness on behalf of the plaintiff, and testified that the oral acknowledgment of the defendant in the indictment and the sureties, was taken in open court in the usual form at the time the recognizance was entered into. The journal entry of the forfeiture of the recognizance, made in the usual form, where the recognizance is full and complete, was also given in evidence. The plaintiff, having rested the case on this evidence, the court overruled the evidence as insufficient to show the existence of a valid recognizance, and gave judgment for the defendants. To reverse this judgment, the writ of error is prosecuted.
    
      J. B. Osborne, for plaintiff.
    
      JEj. B. Sadler, for defendants.
   Bartley, C. J.

The assignments of error present two questions in this case:

1. Whether the instrument, or writing on a loose piece of paper, .as set forth in the bill of exceptions, is of itself a sufficient and valid recognizance.

2. If not, whether this memorandum of the clerk, aided by the clerk’s oral testimony, and the journal entry of a forfeiture of the supposed recognizance, furnishes sufficient evidence of the existence of a valid recognizance.

A recognizance is an obligation of record entered into before .some court of record, or magistrate duly authorized, conditioned for the performance of some particular act. It is equal in solemnity to, and in some respects at common law takes a priority over, an ordinary bond. A recognizance differs from a bond in this, that while the latter, which is attested by the signature and seal of the obligor, creates a fresh or new obligation, the former is an acknowledgment on record of an already existing debt, with condition to be void on the performance of the thing stipulated, and attested by the record of the court alone, and not by the obligor’s seal and signature. To be a recognizance, it is essential not only that the instrument be in writing, but also that it be a matter of *record. If not actually entered upon the journals or record books, it must be upon the files of the court. It was settled in the •case of Dillingham v. The United States, 2 Wash. C. C. 422, that it is essential to the validity of a recognizance that the material parts of the obligation and the condition should be set forth in the body of it.

"What does the writing offered in evidence on behalf of the plaintiff in this case, as-a recognizance, amount to? It is a brief memorandum of the clerk, relating to the subject-matter of a recognizance. It contains neither the form nor the substance of a recognizance in itself. Neither the name of the cognizee, nor any acknowledgment of any obligation, promise or undertaking on the part of the cognizors is set out. Upon the principle, therefore, that, a recognizance must contain, and express in the body of it, the material parts of the obligation and the condition, this paper can have-no validity as a recognizance : and this deficiency in the instrument, could not be aided by the oral testimony of the clerk, or any entry upon the journal of the court in taking the forfeiture.

On behalf of the plaintiff, it is insisted that the informality and deficiency of the instrument as a recognizance is remedied by the-provision in the 3d section of the statute of 25th February, 1848, which is in the following language, to-wit:

“It shall not be necessary to enter upon the journal of the court any recognizance which shall be taken during the session of the-same; but every such recognizance shall be deemed valid in law, if taken in open court and attested by the clerk of such court.”

This law dispenses with the entry of the recognizance upon the journal of the court; but it does not dispense with the necessity of reducing the recognizance to writing. If not reduced to writing and filed, it could not be an obligation of record. A parol obligation must bear some other name. The plea of nul tiel record, which is always a proper plea to a declaration in debt on a recognizance, would be unavailable against a declaration on a parol undertaking. *The object of this provision of the statute was obviously to relieve the clerks of the courts during the pressure of the business of a session, by allowing them to use blank recognizances, which, when taken and filled up in open court, attested by the-clerk, and filed, should be suficient, without the entry of the same-upon the journal.'

Judgment affirmed.  