
    *State of Ohio v. Harvey Wellman.
    In a recognizance to appear and answer, the words, “ in case said party was legally imprisoned on said charge,” are surplusage.
    This was sci.fa. upon a recognizance adjourned here by the Supreme Court of Cuyahoga county. The defeasement was in these words:
    “ If the said John Kuln shall personally appear at the next court of common pleas, to be holden in and for said county, then and there to answer a charge of kidnapping, and to show cause why sentence should not be pronounced against him by said court, and not depart without leave, in case the said Joseph was then legally imprisoned on said charge, then the recognizance to be void,”, etc.
    The sci. fa. being served on Wellman only, he appeared, and showed for cause, “that the said Joseph Kuln, at the time of the supposed entering into said recognizance, by the said Wellman, was not legally imprisoned on said charge, in said recognizance mentioned,” and concluded with a verification. The prosecuting attorney demurred, and the court of common pleas gave judgment for the plaintiff, from which the defendant appealed.
    L. Case, for the plaintiff:
    The imprisonment was legal. The party, if at large after verdict against him, might be legally arrested. 1 Chit. Crim. 664.
    The cause shown is not sufficent. It is in the nature of a plea, and the facts which render the imprisonment illegal ought to have been set out. 1 Chit. Pl. 216, 217 ; 5 Com. Dig. 418; E. 34.
    The qualification, “in case said Joseph is legally imprisoned,” is one which the judge could not insert, and is therefore void as-against law.
   By the Court :

It is very clear that the plea is bad. The matters of fact which it was supposed rendered the imprisonment illegal, ought to have been set out, so that the court might judge of their sufficiency if demurred to, or that the proof might be applied to them if they were traversed. As it stands, *the plea alleges no fact to sustain the conclusion it asserts, that the party was not legally imprisoned ; and were we to give judgment for the defendant no person, from perusing the record, could tell upon what our judgment was grounded.

The qualification in the recognizance, that it was only to be valid in case the prisoner was legally imprisoned, can have no operative effect, and must be regarded as mere surplusage. If the party were illegally imprisoned, the law provided a means for his legal discharge, and when discharged, the recognizance could not bind him or his bail, if these terms were not contained in it. If taken under any circumstances that could legally affect its obligatory force, the defendants could avail themselves, by way of defense, of such circumstances, though no reference were made to them in the recognizance. The terms inserted can not, therefore, either vitiate the recognizance, or enlarge or restrict its obligation.

Judgment affirmed.  