
    Waughhop v. The State.
    A judgment final cannot be taken in the first instance against the surety upon a bond in tho nature of a recognizance to admit to bail a person "charged with crime. There should have been an interlocutory judgment of forfeiture first taken, and a scire facias issued to the surety, to afford him tho opportunity to appear and produce his principal in court, or show cause to the contrary, before judgment final could lawfully be taken against him.
    Error from Bed Biver. One Hightower was arrested and hold to bail to answer to an indictment for an assault and battery. The plaintiff in error became his surety upon a bond conditioned, for his appearance at the Spring Term, 1847, to answer to the charge contained in the indictment. The defendant r.ppoared and continued the case. At the Fall Term thereafter, the defendant failing to appear, judgment final by default was taken against the defendant and the plaintiff in error, as his surety, for the sum of five hundred dollars, the amount of their bond, and execution was awarded. The surety prosecuted this writ of error.
    
      A. Morrill, for plaiutiff in error.
    
      Attorney General, for defendant in error.
   Wheeleb, J.

The judgment against the surety cannot be maintained. The law does not authorize a judgment final in the first instance against the surety upon a bond in the nature of a recognizance to admit to hail á person charged with crime. There should have been an interlocutory judgment of forfeiture first taken and a scire facias issued to tho surety. lie must have had legal notice of the proceeding, and an opportunity afforded him to appear and produce his principal in court, or show cause to the contrary, before judgment final could lawfully be taken against him. That he may have such notice and opportunity afforded him, the judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.  