
    *The State v. Archy Mayson, et al.
    
    The plea of non est factum simply puts in issue the existence of the obligation.
    A recognizance to support a bastard child, though not taken according to the Act of Assembly, may be good a? common law.
    A defendant will not be allowed to plead non est factum, and demur also.
    This was an action of debt on a recognizance to support a bastard child, tried at Abbeville, Fall Term, 1819.
    The declaration was upon “ a writing obligatory, commonly called a recognizance.”
    Archy Mayson was the only surety to the recognizance.
    The general issue was pleaded, and a motion made for leave to demur in addition, which was overruled. A motion was made for a nonsuit, which was also overruled.
    The defendants moved for a nonsuit, to set aside the verdict, and to arrest the judgment:
    1. Because debt on such a recognizance cannot be maintained.
    2. Because the recognizance was void, having' but one security, and leaving the principal liable to an indictment for bastardy.
    3. Because the presiding judge refused leave to demur.
   The opinion of the Court was delivered by

Richardson, J.

A recognizance is an obligation of record. It is in most respects like other bonds. The chief difference being, that a bond is the creation of a fresh debt; but the recognizance is an acknowledgment of a former debt of record. It acknowledges a sum due by certain and express agreement, which is the precise character of the contract, for which debt is the proper remedy. F. N. B. 119.

But as it is unnecessary, the Court gives no opinion upon that point. In the case before us, the general issue was pleaded, which simply put in *4261 *ssue existeace obligation declared upon, as this Court -* has before decided, in the case of the Commissioners of the Poor v. Hannion, 1 Nott & M’Cord, 554, which was also upon an obligation, very irregularly drawn, to support a bastard.

The same answer may be made to a second ground of objection ; but upon this I will remark, that the obligation, though not taken precisely according to the statute, would probably be valid at common law, under any form of pleading. Of this, too, we have an imposing authority, in an early decision, in the case of the Commissioners of the Treasury v. The Securities of W. Davis, a sheriff, whose bond differed in the amount required by the statute, but was holden to be binding at common law, though expressly put in issue. Any other conclusion would encourage minute but designed differences from the precise requisitions of an Act.

MBuffie, for the motion. Wlvitner, contra.

The third ground is, that the judge refused the defendants’ motion for leave to demur, in addition to the general issue; but no law or practice has been suggested which would authorize such double pleading. And, certainly, if any pleas are inconsistent, non est factum and a demurrer, the object of which would be to bring also the form of the action in issue, would be among those selected for inconsistency.

To conclude, then, the proceedings, if not strictly correct, were by no means void, and the motion in arrest, as well as for a new trial, cannot prevail, both being predicated upon the form of the action; and the affirmative of the issue being proven, no nonsuit could follow. The motions are, therefore, refused.

ColcocK, Nott, Gantt and Johnson, JJ., concurred,

Hugee, J., absent, from indisposition. 
      
       See 3 Brev. 396; 1 Tread. 459 ; 3 Brev. 150; 1 Brev. 3; 2 Bail. 501, 376; 1 N. & McC. 332; Haile v. Miller, 11 Rich.
     
      
       Four preceding cases on this bond have been reported, viz.: 2 Brev. 51; Id. 228 ; 3 Brev. 550, or 1 Tread. 755 ; and 1 N. & McC. 214; but none of tkese seem to have involved a question as to tke amount of tke bond. See Carr v. Sheriff, 3 Brev. 150.
     