
    State vs. Rye and Dunlaf.
    A recognizance taken in the circuit court to appear in the supreme court, is gooU without containing a recital of the offence to be answered, or without showing on its face the court in which it was taken.
    A recognizance must show on its face the court to which the defendant is hound ⅛> appear.
    A scire facies issued upon a forfeited recognizance, and after setting forth the recognizance and specifying the time and place for the defendant to appear, proceeds thus, «‘then and there to'stand to, .abide by, and suffer whatever said supreme court sha?/ Consider on the bi/1 of indictment against him for lewdness.” These words, nor any thing like them, were not contained in the recognizance; Held, that the recognizance was good without them; that they were merely surplusage as alleged in the scire facias, and therefore, there was no variance between the scire facias and the recognizance.
    If matter unnecessarily stated be wholly immaterial and irrelevent to the cause, and it is not so interwoven with matters which are material, as to prevent its exclusion without necessarily excluding the other, the immaterial matter will be considered as surplusage, and may be rejected.
    This is a suit by scire facias on the part of the State against the defendants, on a forfeited recognizance, t-o which-they have pleaded nul tiel record. The record shows that on the 4 th day of April 1835, it being a continuance of the March term 1835, of the circuit court of Stewart county, John Keel, who had been convicted of the offence of open and notorious lewdness, had prayed an appeal to the next term of the su* preme court, to be held in Nashville on the first Monday in March 1836, which was granted, and thereupon, he in open court'“acknowledged himself to be indebted to the State of Tennessee, in the sum of five hundred dollars, to be void on condition, that he make his personal appearance before the judges of the supreme court of the State of Tennessee, to be held .at the court house in the town of Nashville, on the first Monday in March 1836,.and not to depart thence until discharged by due course of law, or by leave of the court first had and obtained. And also on the same- day came into court the defendants, Rye and Dunlap, and “acknowledged themselves to be jointly and severally indebted -to .the State of Tennessee, in the sum of five hundred dollars, to be void on condition, that John Keel do make his personal appearance before the judges of the supreme court of the State of Tennessee, to be holden at the court house in the town of Nashville, on the first Monday in March 1836, and not depart thence till discharged by due course of law, or by leave of the court, first had and obtained.”
    At the March term, 1836, of the supreme court, John Keel failed to appear, and judgment nisi was rendered against him and his bail, upon their'forfeited recognizances. The scire facias issued on said judgment against the defendants; it sets forth the recognizance correctly, with the exception that after specifying the time and place at which said Keel was to appear, it adds, “then and there to stand to, abide by, and suffer whatever said supreme court shall consider on the bill of indictment against him for lewdness,” which words are not contained in the recognizance.
    
      Geo. S. Yerger, Attorney General, for the State.
    
      W. Thompson, for defendant.
   Turley J.

delivered the opinion of the court.

Several questions are made in this case: 1st. is the recognizance good and sufficient without containing a specification of the offence to be answered? We think it is. The object intended to be secured by the recognizance is the appearance of the person charged, not that he will abide by the decision the court, for if his presence be secured, the court ⅞/illsee that he suffers judgment.

2d. Is the recognizance good without specifying on its face the court where it was taken? We think it is. Recognizances never show, separated from the record, where they were taken, being always so far as that is concerned in the form of the present, viz: “this day came the parties into open court.” &c. What court? The court referred' to in the record. In the case of Grigsby vs. The State, 6 Yer. R. 334, it was determined that the recognizance must show to what court the party was bound to appear or it would be bad. We recognize the authority of this decision, but that question is very different from this. The record will show where the recognizance was taken, hut it cannot show where the party was hound to appear.

3d. Is there a material variance between the record of the recognizance produced, and that set forth in the scire facias} We think not. We have said that the recognizance was good without specifying the offence which the party was to answer; then the scire facias need not have set forth more than is contained in the recognizance, to have given the State a right to maintain its suit against the defendants; an attempt to do so is surplusage, and it must be rejected.

If matter unnecessarily stated be foreign .and irrelevant to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as surplusage, and it need not be proven, nor will it vitiate even on special demurrer, it being a maxim that “utile per inutile non vitiatur.” Chit. Plea. 262, 263, and cases there cited. In a case in 4 B. and C. 380, Judge Baily observes, “a party is not bound to prove an immaterial allegation, unless he has by his mode of pleading, so connected it with a material allegation as to make the latter de? pend upon it.” And judge Holroyd said, “if the plaintiff stated a cause of action more than is necessary for tlie gist of the action, the jury may find so much proved, and so much not proved, and the court would be bound to pronounce judgment for the plaintiff, upon that verdict, provided the facts proved .constitute a good cause of action.” These authorities show satisfactorily, .that if the immaterial matters are not so interwoven with those that are material, as to prevent their excluded without excluding the whole, that it may be done. a

. . r Here the scire facias gives a correct description of the recognizance, but in addition thereto :a condition is added which is not contained in it, and which i$ not necessary to make it va It may, and roust be rejected.

Judgment made final.  