
    The State vs. Henry Ahrens and others.
    
      Recognizance — Sci. Fa .• — Practice.
    In sci. fa. on recognizance, an objection that the paper produced, is, from matter apparent on its face, not a recognizance, may be made ore tenus, and an affidavit of the defence is not necessary.
    A paper not appearing upon its face, in any recital, or in the attestation clause, to have been taken by any officer, or any body, having authority to take recognizances : Held, to be invalid as a recognizance. A recognizance being in' the nature of a judgment confessed of record, cannot be executed by attorney.
    BEFORE WITHERS J., AT CHARLESTON, APRIL TERM, 1859.
    The report of bis Honor, tbe presiding Judge, is as follows:
    “Scire Facias, read. Recognizance enclosed. Record State vs. Henry Ahrens and another. Guilty, 14th January, 1859, of selling spirits to a slave. Indictment charges the selling to have been August 14th, 1858. Recognizance dated 6th July, 1858. It purports to be signed and sealed before one Behre. Who he is, does not appear, by any addition to his name. Attorney-General contends that the party shows nothing in defence, and can’t say there is no such record, after the recitation in the sci. fa. Mr. Simons contends that the paper, when produced, is no recognizance, for it is noD-taken before any officer of this Court, nor in this Court. No cause is shown by affidavit at all, and the paper is endorsed by the clerk of this Court.
    “It is held, that the defence must be shown by affidavit; and none being shown,’ it is ordered, (notwithstanding Mr. Simons wishes a continuance,) that the case proceed; and it is ordered, that judgment of estreat be confirmed.”
    
      Copy Recognizance.
    The State H. Ahrens,
    J. H. Kalb — bail, $1,000.
    J. C. H. Olaussen — bail, $1,000.
    
      Liquor Recog., dated 6 July, 1858.
    
      State of South Carolina, Charleston District.
    
    Know all Men by these Presents, That we, H. Ahrens, J. H. Kalb, and J. O. H. Olaussen, of the City of Charleston, acknowledge ourselves to owe the State of South Carolina, the sum of one thousand dollars, to which payment well and truly to be made, we bind ourselves, and every one of us, each and every one of our heirs, executors and administrators, jointly and severally by these presents.
    Witness our hands and seals, this sixth day of July, in the year of our Lord one thousand eight hundred and fifty-eight.
    The Condition of this Recognizance is such, Whereas, the above bound H. Ahrens is licensed to keep a Tavern occupied by him at corner Radcliffe and Smith streets, for the space of one year from the 1st April last. Now, if the said H. Ahrens, during the continuance of the said license, shall not keep a disorderly house, nor suffer or permit any unlawful gaming in or about said house, nor violate the laws concerning the traffic in Spirituous Liquors, but shall, during said time, in all things, maintain good order and rule, and provide good, wholesome and sufficient lodging, diet and entertainment for man, and stabling and provender for horse, and observe the direction of the law, relating to Slaves and Free Persons of Color, and the keeping of taverns, then this recognizance to be void, otherwise to remain in full force and virtue.
    HENRY AHRENS, [l. s.]
    J. H. KALB, [n. s.]
    per H. Ahrens, Att'y.
    
    J. C. H. CLAUSSEN, [l. s.J
    per H. Ahrens, Att'y.
    
    Signed in the presence of ■ E. G-. Behre.
    Taken and acknowledged, this 6th day of July, A. D. 1858, before me.
    The defendant appealed on the grounds:
    1. That the only service of the scire facias having been by the acceptance and appearance of the defendants’ counsel, he was entitled to plead, ore terms, that the paper on its face was no recognizance.
    2; That the practice in cases of scire facias has been to submit affidavits only where the legal obligation is admitted, and matters of fact in mitigation or excuse are suggested.
    8. That there being no proffert of the alleged recognizance before the day of trial; and no copy thereof having ever been served on the defendants or their counsel, the defendants’ counsel could not plead except at the trial, when the bond, so called, was submitted for inspection; that the same was no record, and no recognizance.
    4. That the bond purported to be signed by the defendants, J. H. Kalb and J. C. H. Claussen, per attorney H. Ahrens; and that no recognizance can be signed by attorney, but must be in person; and that under any circumstances" the same could not be estreated without proof of the existence of a genuineness of such power of attorney.
    
      5. That the bond produced was no recognizance.
    6. That if the practice ought to have been by affidavit, that under the circumstances of this case, the continuance should have been granted,-and the defendants permitted in justice and good conscience to present their defence.
    
      Thomas Y. Simons, for appellant.
    A recognizance is an' .obligation of record, entered into before a Co art, or officer duly authorized for that purpose, with a condition to do some act required by law which is therein specified. 2 Bouvier’s Law Die. 413. A recognizance is a hond of record, testifying the recognizor to owe a certain sum. of money to some other; and the acknowledging of the same is to remain of record, and none can take it but only a Judge or officer of record. Ghitty’s Burns’ Justice, 689. To be good and effectual in law, must be signed by the party, and acknowledged in the presence of a judge or justice of the peace, who shall so certify, otherwise such resognizance shall be void. 2 Brev. Dig. 182. By A. A.,-1849,-recognizance of tavern-keepers to.be' given to the State, approved of by the- Commissioners of Roads, and filed in the office of the Clerk of General Sessions; and upon affidavit of breach filed with the Clerk of said District, scire facias to issue. A scire facias is a writ necessarily founded on some matter of record. Bac. Ab. tit. Scire Facias, A. And must issue out of the Court where that record is. Tidd’s Prac., 1139 ; Bac. Ab. tit. Scire Facias, D. Sci. fa. to be estreated, where person bound fails to appear, or appearing, does not give sufficient reason .for not performing conditions of such recognizance. Affidavit to be submitted where recognizance is forfeited by ignorance, or unavoidable impediment. 2 Brev. Dig. 182. Irregularities apparent on the face of a sci. fa. may be taken advantage of by motion, but questions of fact by plea. 8 Md. Rep., 107; 7 LT. S. Dig., 1847, p. 518.
    
      Ilayne, Attorney-General, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

'In this case, I do not think that the defence “ that the paper-produced as the foundation of the sci. fa. is no recognizance,” must be shown by affidavit. The objection may be taken ore terms, as well as in any other way For in a scire facias on recognizance there is no regular pleading, such as nul tiel record. A scire facias on recognizance is a mere rule to show cause why it should not be estreated. If the defence or cause does not appear on the alleged recognizance or scire facias, it must be shown.by affidavit. Here the defect, whatever it is, appears on the paper called the recognizance, and set out in the sci. fa.

The question is, is the paper set out a recognizance ? I am clear that it is not. To be a recognizance, the debt must be confessed in a court of record, before a magistrate, or some one authorized by law to take it. 2 Tidd Pr. 1090, 3. In this case there is nothing to show that "Behre,” before whom it is acknowledged, was in any public capacity. If his official character, showing his capacity to take a recognizance had appeared in the instrument, I should have held that was enough. This paper is in the exact form of the third section of the Act of 1849, 11 Stat. 587. It requires it to be approved by the Commissioners of Boads, before the granting of a license; and if it had appeared by the recitals of the instrument, or even by the attestation, to have been taken by their authority, I would have thought it quite sufficient, or if it had purported to have been taken by the City .Council (who have and exercise the power of granting license), I should have thought that sufficient; but the only public act about it is, that it was filed in the clerk’s office long after it was executed. 10th sect., Act of 1849.- This cannot help a paper such as this to the high rank of a recognizance. In form, it is a bond (although called a recognizance in the Act,) and it may be that it* may be sued and recovered upon as such, as a good common law instrument.

There is another objection to the paper as a recognizance; two of the cognizors, Kalb and Claussen, purport to acknowledge the debts by attorney. This is, I think, fatal to a recognizance which ranks with a judgment, not having any lien until confirmed; but still carrying an authority, when confirmed, to be made and levied of the cognizor’s lands and goods.

A warrant of attorney to confess a judgment is void, and, of course, this acknowledgment-here must fail. Rankin & Birch vs. Lawrence & Johnson, 4 Rich. 267.

The motion to reverse the decision below is granted, and the sci. fa. is discharged.

Johnston, and Wardlaw, JJ., concurred.

Motion dismissed.  