#### The People, &c., Plaintiffs in Error, v. Fernando D. Slayton, Defendant in Error.

ERROR TO ADAMS.

Upon an indictment found, a recognizance entered into by a person as surety for the appearance of the party indicted, who has not been served with process and who does not appear, is not obligatory upon such person. Where the person indicted has once entered into a recognizance, a separate one afterwards from a surety might be binding.'

Opinion of the Court by

Justice Smith.

The question presented to the court in this cause is one of some novelty. From the record, it appears that the defendant in error in the court below became bound in a recognizance, for the appearance of one McCrany, before the circuit court of Adams county at a future day, at his own request, the defendant not appearing. Whether the principal in the indictment had ever been arrested or appeared in court, is not to be collected from the record, and the court can not presume that he was ever in custody. If it were so, the record should have shown it, but the presumption is, that as the recognizance follows the caption in the record, it is not so, and for the further reason that the recognizance is given by the defendant only.

To the scire facias sued out on this recognizance, the defendant filed a general demurrer, and a joinder was filed on behalf of the plaintiff. The circuit court sustained the demurrer because the principal was not joined with the security in the recognizance.

As it can not be ascertained whether the defendant was ever in custody, we are constrained to say that there was no obligation on the part of the principal to enter into a recognizance with a surety, and as the principal was not bound, the *330mere voluntary act of a third person in doing so is not obligatory. If it were otherwise, it might place the individual indicted under a condition to which he had never assented. The surety is the keeper of the person of his principal, and might control his person without his assent, if the principle be recognized, that one, without the assent of the principal, may thus enter into a recognizance for his appearance. It might be carried further. The principal being under no obligation tó appear at' the time required by the condition of the recognizance thus entered into, he is rightfully absent, and yet a forfeiture of the recognizance happening, and a recovery for the breach being had against the voluntary surety, he may recover back of the principal the amount of the forfeiture, if the recognizance be obligatory on the part of the surety. Such consequences, it would seem, must inevitably flow from a decision which should establish the validity of a recognizance entered into under such circumstances.

Attorney General, for plaintiff in error.

Cavarly, for defendant in error.

It is not, however, to be understood that where the principal has ever entered into a former recognizance, the taking a separate one afterwards from a surety would not be binding, because cases might arise in which it might be impossible to procure the attendance of the principal, and where it might be attended with great hardship, and be productive of oppression. In such cases, if from sickness or other unavoidable casualties, the principal can not appear, and a surety is willing to enter into a recognizance for his appearance to save the forfeiture of a former one, there can be no doubt that it would be obligatory. The present case, however, being clearly distinguishable from such an one, the judgment of the circuit court must be affirmed. (1)

From this opinion Justice Lockwood dissents.

Judgment affirmed.

(1)

A sheriff may take a recognizance after indictment found, of a prisoner in his custody, although a writ has not issued from the circuit court commanding an arrest. Sloan et al. v. People, 23 Ill., 77.

Where money is deposited with a sheriff as security for the appearance of a prisoner, who makes default, it is proper to treat the money as if it had been recovered on recognizance. County of Rock Island v. County of Mercer, 24 Ill., 35.

See also Shattuck et al. v. The People, 4 Scam., 481. Besimer et al. v. The People, 15 Ill., 439.

A recognizance taken before an officer not having judicial power, as the president of a town, is without binding force. Solomon v. The People, 15 Ill., 291.

A recognizance is not vitiated because it is taken for a less sum than is indorsed on the writ. Chumasero v. The People, 18 Ill., 405.