
    George C. Sargeant v. The State of Ohio.
    A recognizance to appear and answer to a criminal charge, taken by a single judge, must be returned to the court of common pleas of the county, and a memorandum thereof entered on the minutes of said court to make it matter of record.
    A declaration upon such recognizance will be bad unless it-aver that such return and memorandum were mado.
    Such recognizance can not be declared upon as a common-law bond.
    
      *This is a writ of error to the Supreme Court of Hamilton county.
    The action below was debt, brought by tho defendant in error against the plaintiff in error, George C. Sargeant, upon a bond of recognizance for 1750, made jointly and severally by one David Burgett and said George C. Sargeant. The condition of this recognizance was for the appearance of said David Burgett before the court of common pleas of Hamilton county, on the first day of the next (then) criminal term of that court, “to answer to six charges of larceny, and all things that may be objected against him, and not to depart the court without leave, and abide the judgment of the coui’t thereon.”
    The facts of the case are as follows .
    On May 15, 1844, Henry E. Spencer, then mayor of the city of Cincinnati, committed the said David Burgett to the county jail of Hamilton county, for want of sufficient bail, on the charge of having committed six separate larcenies. On May 18, 1844, while in the custody of the jailor of the county, Burgoft desired to be admitted to bail, and upon that day Burgett and Sargeant, the plaintiff in error, entered into the above-mentioned recognizance, before Hon. Henry Morse, one of the associate judges of the court of common pleas of Hamilton county, and Burgett was discharged from custody. That in July term, 1844, six indictments were found against said Burgett, and on tho 25th day of the same month, and during the same term, the said parties to the recognizance, being solemnly called, came not, but made default. The court thereupon ordered the said recognizance to be forfeited, and entry thereof was made upon the minutes of the court. On the 27th of the same month, the said recognizance and indictments, with other papers, were stolen from the court-house, where they had been left by tho clerk. This action was brought by the state to recover the amount of said bond, and judgment was rendered for tho plaintiff below, as also *in the Supremo Court for Hamilton county. The plaintiff in error, the defendant below, seeks to reverse said judgment, for the following errors assigned :
    1. That tho declaration aforesaid, and the matters therein contained, are not sufficient in law to maintain said action, for the reason that it contains no averment that on the return, of the recognizance to the court, a memorandum thereof was entered on the minutes of the court.
    2. That there was no proof that the recognizance was ever forfeited in the court of common pleas.
    3. There was do.evidence that the defendant ever signed, sealed, or delivered the recognizance (or bond of recognizance), as alleged in the plaintiff’s declaration.
    4. That the declaration sets forth a cause of action arising from a bond of recognizance, and not a “ recognizance of record.”
    5. That the evidence of said recognizance was improperly introduced, as there was no proof of the signing, sealing, and attestation of the same, as alleged in the declaration, and no proof that such a recognizance had been lost.
    6. That the recognizance, as described in said declaration, is to answer six several charges of larceny jointly, instead of answering to each of six several larcenies, in a separate amount to each offense, and could not be apportioned.
    7. That the recognizance being lost, and no record remaining, there was nothing upon which the defendant could have surrendered Burgett in discharge of said recognizance.
    • 8. That said judgment was given for said State of Ohio, when, by the laws of the land, it ought to have been given in favor of the said George C. Sargeant.
    J. A. Pugh, for the plaintiff in error.
    Henry Stanbery, attorney-general, for the State,
   *Reai>, J.

Several errors are assigned in this case; but,from the view taken by the court, it is only necessary to consider one, and that one as to the sufficiency of the declaration.

Section 4 of the act directing the mode of trial in criminal cases, authorizes a single judge to take a recognizance for the discharge of a prisoner, and directs that he shall forthwith deposit it with the clerk of the court of common pleas.

Section 8 of the practice .act provides, that whenever any recognizance shall be returned to any court of common pleas by a justice of the peace or other officer authorized to take such recognizance, a memorandum thereof shall be entered in the minute-book of the court; whereupon the same shall be considered of record in such court, and proceeded on by process issuing out of said court, in the same manner as if such recognizance had been entered into before such court, and the same recognizance shall be made out and recorded in full, in the book of records of said court, in the same manner as recognizances taken in such court.

The statute makes it requisite that a recognizance, to bo of any validity, should be of record. To make it a record, there must be a memorandum of its return entered upon tho minute-book of the court. The declaration contains no averment that a memorandum of the return of this recognizance was entered upon tho minute book of the court, nor does it count upon it as a record.

It is not good under the statute, and not valid as a common-law bond. Hence the declaration is defective, and will not support the judgment. Judgment reversed.  