
    Grigsby vs. The State.
    Where the recognizance recited “to be void on condition that the said L M. G. make his appearance here,” &c. and the scire facias issued «pon the default, recited “to be void on condition that the said L. M. G. made his personal appearance in court,” &c_Held, that under the plea of nwl tiel record, the variance between the recognizance and the scire facias was fatal.
    It must appear from the recognizance itself in what court it was taken, or before what tribunal the defendant is recognized to appear, otherwise no judgment of forfeiture can be taken thereon for a failure to appear.
    The record in this case shows, that the following scire facias was issued by the clerk of Giles circuit court, to wit: “State of Tennessee, To the sheriff of Giles county, greeting: Whereas, heretofore, to wit, at a circuit court began ano heid in and for the county of Giles, in said State, at the court house in the town of Pulaski, on Monday the 3d day of August, 1829, and during said term, on the 11th day of said month, the grand jurors for the State aforesaid, returned into court an indictment against Luther M. Grigsby for forgery, endorsed thereon “a true bill;” and on the 12th day of said month, the said Luther M. Grigsby, being charged upon said indictment, pleaded not guilty thereto; and upon his affidavit, said suit was continued until the next term thereafter; And afterwards, to wit, at the said term, to wit, on the 13th day of August, 1829, Amos Grigsby and Samuel H. Grigsby came into court and acknowledged themselves severally indebted to the State of Tennessee, each in the sum of one thousand dollars, to be levied of their goods and chattels, lands and tenements, to the use of the State; to be void, on condition that the said Luther M. Grigsby make his personal appearance in court on the first Thursday after the first Monday in February thence next ensuing, and answer the State upon an indictment for forgery, and not depart thence without leave of the said court; And whereas, afterwards, to wit, at said term, to wit, on the 5th day of February, 1830, came the solicitor general, who prosecuted for the State, and the said Luther M. Grigsby, although solemly called to come into court, and answer the State, upon an indictment for forgery, came not, but made default; And whereas, also, said Amos Grigsby, who was bound in said recognizance for the appearance of said Luther M. Grigsby, being solemnly called and required to bring with him the body of said Luther M. Grigsby, came not, nor did he deliver the body of the said Luther M. Grigsby,but made default: Whereupon, it was considered by the court, that the State of Tennessee recover against the said Amos Grigsby the sum of one thousand dollars agreeably to the tenor of his recognizance, unless he appears in court at the next term of this court thereafter,, and shows cause to the contrary; and that a scire jacias issue against him returnable to the-next term of said court. Now, these are therefore to command you to make known to the said Amos Grigsby? if to be found in your county, that he appear at the next circuit court tobe holden for the county of Giles, at the Courthouse in the town of Pulaski, on the first Monday in February next, and on the first Thursday after said first Monday, then and there to show cause, if any he have or-know of, why judgment nisi, as aforesaid, for the'sum off one thousand dollars, may not.be made final'against him.. Herein- fail not,” &cv
    The deféndant appeared’, and. to said scire facias filed-the following plea, to wit: “And the said defendant, by attorney, comes and defends the wrong and injury,, when, &c. and says that there is not any record of the-said supposed recognizance and recovery, in the said scire facias mentioned, remaining in the said circuit court of Giles county, Tennessee, in manner and form as the said' plaintiff, the State of Tennessee, hath above, in- the said’ scire facias, mentioned and alleged; and this he is ready to verify; wherefore he prays judgment if the said plaint-tiff ought to have and maintain her aforesaid action thereof against him,” &c. Replication, that there is such a record and tender of an issue to be tried by the court on inspection o.f the record. Issue was taken upon said replication.
    There was a motion made by defendant to have the suit discontinued, and also a motion made to quash the scire facias, both of which motions were overruled by the court. Upon the trial of the issue taken upon the plea and replication, the-attorney general, in behalf of the plaintiff, read recognizance in the words and figures following, to wit:
    “State, plaintiff, against LutherM. Grigsby, defendant. Indictment for forgery. Amos Grigsby and Samuel H. Grigsby came into court and acknowledged themselves severally indebted to the State of Tennessee, each in the sum of one thousand dollars, to be levied on,-their goods and chattels, lands and tenements, to the use of the State; to be void on condition that the defendant, Luther M. Grigsby, make his personal appearance here on the first Thursday after the first Monday in February next, and answer the State upon an indictment for forgery, and not depart hence without leave of the court.” ;
    The said attorney general then read in evidence as aforesaid, the following forfeiture or .judgment nisi, viz: “State, plaintiff, against Luther M. Grigsby, defendant. Indictment for forgery. This day comes Thomas B. Craighead, solicitor general, who prosecutes for the State, and the defendant, although solemnly called to come into court, and answer the State upon an indictment for forgery, came not, but made default.” This latter entry of said Luther M. Grigsby’s default was made of record on Friday, the 5th day of February, 1S30.
    The State also read in evidence on the above trial the following entry, viz: “State, plaintiff, against Luther M. Grigsby, defendant. Indictment for forgery. This day came Thomas B. Craighead, solicitor general for the State; and Amos Grigsby, who was bound in a recognizance for the appearance of the defendant in this case, being solemnly called and required to bring with him the body of said defendant, came not, neither did he deliver the body of said defendant, but made default: It is therefore considered by the court, that the State of Tennessee recover against the said Amos Grigsby the sum of one thousand dollars, agreeably to the tenor of his recognizance, unless he appear here at the next term of this court and show cause to the contrary, and that a scire facias issue against him, returnable to the next term of this court.” The last entry above against Amos Grigs-by was made of record on Friday, the 5th day of February, 1830.
    No other evidence of record, or otherwise, was of-fcr8(j or beard an said trial; whereupon, the court found the said issue for the State, and pronounced judgment in this case against Amos Grigsby, and in favor of the State, for one thousand dollars. From the judgment of the court, the defendant prayed an appeal in the nature of a writ of error to this court.
    
      John H. Rivers, for the plaintiff in error.
    
      A. Hays, attorney general, for the State.
   Green, J.

delivered the opinion of the court.

The principal question in this cause is, whether the recognizance is sufficient to enable the State to obtain execution thereof. The recognizance is in the following words:

“Amos Grigsby and Samuel H. Grigsby came into court and acknowledge themselves severally indebted to the State of Tennessee, each in the sum of one thousand dollars, to be levied of their goods and chattels, lands and tenements, to the use of the State, to be void on condition that the defendant, Luther M. Grigsby, make his personal appearance here on the first Thursday after the first Monday in February next, and answer the State upon an indictment for forgery, and not depart hence without leave of the court,” &c.

At the February term, 1830, of the Giles circuit court, the defendant, Luther M. Grigsby, was called, and not appearing, a forfeiture was taken; and Amos Grigsby being called to come and bring the defendant, and not appearing, a forfeiture was taken against him. The scire fa-cias founded upon these proceedings recites, that “Amos Grigsby and Samuel H. Grigsby came into court and acknowledged themselves severally indebted to the State of Tennessee, each in the sum of one thousand dollars, to be levied of their goods and chattels, lands and tenements, to the use • of the State, to be void on condition that the said Luther M. Grigsby make his personal appearance m court on the urst Ihursday alter the first Monday in February next then ensuing, and answer the State upon an indictment for forgery, and not depart thence without leave of the court.” To this scire facias the plaintiff in error, Amos Grigsby, pleaded nul tiel record, and on the trial of that issue the recognizance was offered in evidence. The first question is, whether the .variance between the scire facias and the recognizance is fatal. The scire facias alleges that the plaintiff in error undertook that Luther M. Grigsby should appear in court. The recognizance is, that “Luther M. Grigsby make his personal appearance here.” There is between the recognizance and the scire facias a material variance. The words “in court,” used in the scire facias, nor other words having the same signification, are not in the recognizance. It does not appear, therefore, that the recognizance given in evidence is the same recited in the scire facias. 1 Chitty on Pleading, 304: 1 Ph. Ev. 171-2: 3 Starkie, 1586-7-8. But this recognizance does not contain such an undertaking on the part of the plaintiff in error as will authorize any proceeding against him. His liability exists only upon a failure on his part to comply with what he has in the recognizance undertaken. The enquiry then is, what did he undertake? The forfeiture and judgment nisi were taken against him because he did not produce the body of Luther M. Grigsby in court. Did he undertake to do so? The circuit court of Giles county is not mentioned in the recognizance, and we cannot gather from it alone in what court it was taken, or where or before what tribunal the defendant was bound to appear. As the terms of the undertaking contained in the recognizance do not require the defendant to appear before the circuit court of Giles county, he cannot be said to have forfeited his undertaking by failing to appear 'there.

Judgment reversed.  