
    The State vs. Jesse Arledge et al.
    
    Scire Facias. Against hail on recognizance taken by justice of the peace. What it must recite. A scire facias issued from the circuit court upon a forfeited recognizance taken by a justice of the peace for the appearance in the circuit court of a defendant in a State prosecution commenced by warrant, must assume such a state of facts as the law requires, to authorize the taking of the recognizance. So, a seire facias, in such case, that does not recite the issuance of the warrant, or the arrest or commitment of the accused, or the return of the recognizance into the circuit court, is fatally defective. The proper practice in such case is to issue a new amended scire facias.
    
    FROM FRANKLIN.
    This was a proceeding by seire facias, to make the defendants in error liable upon a recognizance entered into by them, as securities of one Samuel Taylor, before a justice of the peace of Franklin county, conditioned that Taylor should appear before the circuit court of said county, to answer the State upon a charge of larceny. The scire faeias is directed to the sheriff of Franklin, and recites, that “Whereas, heretofore, to wit: on the 30th day of March, 1852, before Thomas Finch, J. P., for said county, Jesse Arledge, James P. Keith and Andrew J. Gossage, acknowledged themselves indebted to the State of Tennessee, in the sum uf one thousand dollars, jointly, to' be levied of their, respective goods and chattels, lands and tenements, to the use of the State; but to be void on condition that Samuel Taylor should make his personal appearance before the judge of the circuit court for said county, then sitting at Winchester, to answer the State of Tennessee, upon a charge of grand larceny, and not depart without leave of the court first had and obtained; and whereas, to wit: on the 6th day of April, 1852, during said term, the said Samuel Taylor being solemnly called to come into court and answer said charge, came not, but made default, and the said Arledge, Keith and Gossage, being called to come into court, and bring with them the body of said Samuel Taylor, came not, but made default. It is therefore considered, &c.” To this scire facias the defendants demurred, and the court, judge Marchbanks, presiding, sustained the demurrer. The attorney general appealed in error on behalf the State to this court.
    SNEED, Attorney General, for the State.
    HiCKERSoN, for the defendants.
   McKiNney, J.,

delivered the opinion of the court.

The defendants, on the 30th of March, 1852, became bound, jointly, by a recognizance bond, in the penally of one thousand dollars, for the appearance of Samuel Taylor, before the judge of the circuit court of Franklin county, then in session, to answer the State on a charge of grand larceny.

During said term (the defendant Taylor failing to appear) a forfeiture was taken against him, and the defendants as his bail. Scire facias was issued and served, to which the defendants demurred; and on argument, the demurrer was sustained. The attorney general, in behalf of the State, appealed in error to this court. The record contains a bill of exceptions tendered by the attorney general, setting forth the warrant upon which Taylor was apprehended and brought before the justice; the justice’s judgment, and the recognizance bond.

'The question presented by the demurrer, related to •the sufficiency of the recitals of the scire facias. And in considering this question, we are eonfined to the face of the writ, and can look to nothing extrinsic in aid of its omissions or defects. The matters set forth in the bill of exceptions cannot, therefore, be looked to: consequently we cannot consider the question as to the apj plication of the act of 1852, ch. 256, § 9, to the recognizance bond, as it is not set out either in the scire facias, or upon oyer.

The scire facias, we think, is essentially defective. It contains no recital of the issuance of the warrant; or of the arrest and commitment of the' accused; or of the return of the recognizance into the office of the circuit court of Franklin: and, therefore, fails to show such a state of facts as is required by law to authorize the taking of the recognizance.

It was argued by the counsel of the defendants, that the recognizance bond is invalid, because, no day certain is fixed for the appearance of Taylor before the circuit court.

The condition of the bond, as recited in the scire facias, is for the defendant’s appearance before the judge of the circuit court, now i/n session, s&o.

This objection, we think, is not well founded, the condition of the bond is sufficiently certain, and bound the defendant to appear, instantly, before the circuit court to answer the charge exhibited against him.

The demurrer to the scire facias was well taken, and properly sustained; and thus far we affirm the judgment. But the ease will be remanded to the circuit court, with liberty to amend, by issuing a new writ of scire facias.  