The opinion
Treat, 0. J. Our statute provides, that “It shall not be necessary to file a declaration in any scire facias to revive a judgment, or foreclose a mortgage, in any court of record in this State.” As this provision is not broad enough to embrace a scire facias upon a recognizance, it is insisted, that a declara tion is necessary in such a proceeding. We need not inquire whether this is the practice in the English courts. It has been the uniform practice in this State, not to file a declaration in such cases, but to set forth the cause of action in the scire facias. The writ is regarded as both process and pleading. It contains the allegations essential to a valid declaration. The defendant answers it as he would a declaration. Many cases of the kind have been before this court, in which the only question presented Avas, whether the averments of the scire facias were sufficient to entitle the people to execution. See Noble v. The People, 4 Gilm. 433 ; Graves v. The People, 11 Ill. 542 ; McFarlan v. The People, 13 ibid. 9 ; Thomas v. The People, ibid. 696; Bacon v. The People, 14 ibid. 312. In this case, the defendant treated the scire facias as a pleading. If it performed the office of process only, the demurrer was improperly interposed. We would not be inclined to interfere Avith the practice unifomly prevailing in this State, even if it should be found upon investigation to be a departure from the English practice. It is a convenient practice, and one that cannot operate to the prejudice of cognizors. The scire facias must shoAV on its face that the people are entitled to recover the amount of the forfeited recognizance, or it will be obnoxious to a demurrer. Its averments may be put in issue by plea. And any defense may be interposed which could be made to a declaration. The objection is therefore more a matter of form than of substance. The merits of the case are not in the least affected by dispensing Avith a declaration. A scire facias is a judicial writ based upon a matter of record, and is but a continuation of the previous proceedings in the case. It therefore does not fall Avithin the statutory provisions, requiring declarations to be filed in original actions. We hold 'that a declaration is unnecessary in the proceeding by scire facias upon a forfeited recognizance. The same opinion has been expressed by the courts of other States. Lasselle v. Godfrey, 1 Black. 298 ; Toulmain v. Bennett, 3 Stewart and Porter, 220 ; Brown v. Harley, 2 Florida, 159 .
The recognizance recites that the grand jury made a “ presentment against Dunham for the crime of perjury;” and it is conditioned for his appearance to “ answer unto said presentment according to law.” It is contended that the obligation is void, because the only mode of prosecution for such an offense is by indictment. It is true that a party cannot be put upon his trial for perjury, except on an indictment regularly found by a grand jury. But the statements in the recognizance may well be understood as shormg the finding of an indictment against Dunham. The term presentment is not improperly employed for that purpose. However this may be, the allegations of the scire facias obviate any difficulty in the case. It is distinctly averred that the sheriff had full authority to take the recognizance. Under this allegation, if put in issue, it would be competent to prove that Dunham was arrested on a capias, founded upon an indictment for perjury, and that the recognizance was entered into, to procure his discharge from such arrest. McFarlan v. The People, supra.
The scire facias showed a right in the people to execution for the amount of the recognizance, and the demurrer was therefore properly overruled.
The judgment is affirmed.
Judgment affirmed.