
    Barkley vs. The State.
    Recognizance Filing in court, effect of. The filing-, in a court of record, by a magistrate, of a recognizance, purporting to have been taken before him, makes it part of the Court’s proceeding, and communicates to it the dignity and verity, which, by law, appertain to records.
    SAME; Same — Pleading. The verity of a recognizance, so filed, cannot be questioned by the plea of non estfactum; and if such plea be put in, it is de-murrable.
    An indictment had been found in the county court of Greene against Samuel Barkley, for an assault and battery. He and the plaintiff in error, William Barkley, as his bail, acknowledged a recognizance before a justice of Greene, on the 29th of August, 1835, conditioned for said Samuel’s appearance in the county court, to answer “the complaint of the state against him for an assault and battery as charged in the bill of indictment,” &c. This recognizance was forfeited, and to the scire jadas issued thereupon, the plaintiff in error appeared, and instead of pleading nul tiel record, filed the plea of non est factum, to which the attorney general demurred. The county court sustained the demurrer, and gave judgment for the penalty. The plaintiff in error appealed to the circuit court of Greene, where, at the March term, 1837, the judgment of the county court was affirmed, from which judgment of affirmance this appeal in error was prosecuted.
    The question was, whether when a recognizance is taken by a justice and returned into a court of record, it becomes so invested with the qualities of a record, as that its verity can only be assailed by the plea of nul tiel records
    
    
      June 11.
    George S. Yerger, attorney general for the State.
    Arnold, for the plaintiff in error.
   Reese, J.

delivered the opinion of the court.

A justice of the peace filed in the county court a recognizance taken before him, .of the plaintiff in error, and a certain Samuel L. Barclay, for the appearance of the latter in said court, to answer a criminal charge. A forfeiture having been taken thereon, the plaintiff in error, on the return of a scire facias, filed a plea of non est factum, or that he had not entered into the recognizance. To this plea was filed a demurrer. The county court sustained the demurrer, and their judgment was affirmed by the circuit court. And the only question now is, whether this plea was a legal and proper defence?

We are satisfied that it was not. A recognizance, it is well settled, when taken before a magistrate and filed in a court of record, becomes a part of the record of the proceeding in that court, and may claim the dignity and verity which by law appertain to records. The plea in question therefore cannot avail the party.

The argument of inconvenience, arising from the number .or the supposed character and qualifications of the magistracy having the power to take a recognizance, which has been addressed to us, might have some weight, it may be, if addressed to the legislative department. But impositions of the kind alluded to, can very seldom have occurred. And perhaps the inconvenience would be on the other side, if parties were permitted to yield to the strong temptation of extricating themselves from impending difficulty, by denying the verity of the recognizance, when the death or removal of the magistrate, or other circumstances might favor their success. Be that as it may, a recognizance filed becomes a record, and its verity cannot be questioned in the mode in this case attempted.

Let the judgment be affirmed.  