REBELLION OR INSURRECTION.

Sec. 877 (3437). Rebellion against the state.

If any person shall incite, set on foot, assist or engage in a rebellion or insurrection against the authority of the state of North Carolina or the laws thereof, or shall give aid or comfort thereto, every person so offending in any of the ways aforesaid, shall be guilty of a felony and punished by imprisonment in the state's prison for not more than fifteen years, and be fined not more than ̧ ten thousand dollars.

Code, s. 1106; 1868, c. 60, .s 2; 1861, c. 18; 1866, c. 64; Const., Art. IV, s. 5.

Sec. 878 (3438). Rebellion or insurrection, conspiracy for.

If two or more persons shall conspire together to overthrow or put down, or to destroy by force, the government of North Carolina, or to levy war against the government of this state, or to oppose by force the authority of said government, or by force, or by threats, to intimidate, or to prevent, hinder or delay the execution of any law of the state, or by force or fraud to seize or take possession of any firearms or property of the state aforesaid, against the will or contrary to the authority of said state, every person so offending in any of the ways aforesaid, shall be guilty of a felony and imprisoned not more than ten years in the state's prison, and be fined not exceeding five thousand dollars. Code, s. 1107; 1868, c. 60, s. 1.

RECOGNIZANCE.

HOW DISCHARGED.-An agreement by a solicitor to discharge a defendant if he would become a state's witness against a co-defendant, which he did, so far as to go before the grand jury and be examined, and then left the court, will not relieve such defendant from a forfeited recognizance. A recognizance is a matter of record, and can only be discharged by a record or something of equal solemnity. Moody, 69-529.

FORM OF. A recognizance in the form of a bond with conditions, signed and sealed by defendant and his sureties, is valid. Jones, 100-438.

FAILING TO GIVE NEW BOND ON CONTINUANCE.-Defendant having entered into a recognizance to appear at a certain term, appeared at said term and the cause was continued, but he was required to give another bond for his appearance at the succeeding term, which he failed to do, and departed without leave of the court: Held, that it was proper to call him out afterwards and enter judgment against him. Smith, 66-620.

AMENDMENT OF RECORD. On motion for judgment on a forfeited recognizance, it appeared that the record recited that defendant "should appear on Thursday and not depart the court without leave." The surety offered proof

that the defendant remained in court all day on the said Thursday, but on motion of the solicitor the court amended the record nunc pro tunc by adding "that he do not depart the court without leave": Held, that the amendment was not unauthorized, but in the discretion of the court, and when made, the record stood as if it had never been defective. Warren, 95-674.

WHEN A RECOGNIZANCE IS FORFEITED.—A recognizance conditioned for the appearance of the defendant on one day is not forfeited by his failure to appear at another day to which the holding of the court was changed after taking the recognizance. Melton, 44 (Busb.), 426.

A recognizance conditioned that the defendant appear at the next term binds the defendant, though neither time nor place is specified. Houston 74-174.

Where a recognizance is conditioned for the appearance of the defendant on the eighth Monday after the fourth Monday in March, and an additional term is provided by statute to meet in February, the recognizance is not forfeited by the failure of defendant to appear at the February term. Houston, 74-174. PRACTICE IN ENFORCING RECOGNIZANCES.-Where a defendant is recognized to appear and fails, and his recognizance is declared forfeited, and scire facias is issued against him to show cause "why execution should not issue for a fine on a forfeited recognizance," a plea of nul tiel record can not be sustained. The use of the word fine is surplusage, but defendant is not likely to misapprehend the meaning of the scire facias on account of it. Dickinson, 7 (3 Murph.), 10.

A scire facias which sets forth that the defendant was fined nisi "according to act of assembly" is not supported by an entry that the defendant, being under a recognizance, "was called and failed," and a plea of nul tiel record will be sustained. Raiford, 13 (2 Dev.), 214.

RECOGNIZANCE IN FORM OF A BOND SUFFICIENT.-It is competent for a judge to authorize the sheriff, or any other person, to take a recognizance from a defendant for his appearance at the next term, the judge having first fixed the amount of such recognizance; and although the recognizance thus authorized to be taken is put in the form of a bond with conditions, signed and sealed by the defendant and his sureties, it is valid as a recognizance. Houston, 74-549.

WHO MAY TAKE RECOGNIZANCES.-Regularly, if a person be committed for want of sureties to keep the peace, and he afterwards becomes able to give them, he should be taken by habeas corpus before a judge for the purpose of entering into a recognizance; but in our practice the court generally, by consent of the prosecuting officer, entrusts the power of taking the recognizance to a justice of the peace. Hill, 25 (3 Ired.), 398.

RECOGNIZANCE TO APPEAR AT A COURT NOT HAVING JURISDICTION OF THE OFFENSE. A recognizance is not void because the court to which the defendant is bound to appear has no jurisdiction of the offense charged. The obligation of the recognizance does not depend upon the inquiry whether the court before which the party is required to appear has jurisdiction of the offense, but upon the duty and power of the magistrate to examine and admit such party to bail; therefore, a recognizance for the appearance of a party to the county court is good, and if the party fail to appear may be enforced, though the offense charged is cognizable only in the superior court. Edney, 20 (4 D. & B.), 378.

The duty of judging correctly whether the court to which defendant is bound to appear has jurisdiction of the offense charged is not imposed on the magistrate so imperatively as to make his mistake, if he should make one, a justification of the accused for disregarding his recognizance. Edney, 20 (4 D. & B.), 378.

Where a defendant is bound to appear before a court not having jurisdiction of the offense charged, such court may ascertain what other court has jurisdiction to try and punish, and may commit or bind the party to answer in the court having jurisdiction. Edney, 20 (4 D. & B.), 378.

WHAT A RECOGNIZANCE IS.-A recognizance is a debt of record and is in the nature of a conditional judgment which the recorded default makes absolute, subject only to such matters of legal avoidance as may be shown by plea, or to such matters of relief as may induce the court to remit or mitigate the forfeiture. Mills, 19 (2 D. & B.), 552.

OBJECT OF THE SCIRE FACIAS.—The object of a scire facias is to notify the cognizor to show cause why the cognizee should not have execution for the sum acknowledged. Mills, 19 (2 D. & B.), 552.

NO JUDGMENT OF FORFEITING REQUIRED.-The recorded default makes the judgment absolute subject only to matters of avoidance, and no judgment of forfeiture is required before issuing the scire facias. Mills, 19 (2 D. & B.), 552.

JUDGMENT MUST BE HAD ON SCI. FA. BEFORE EXECUTION ISSUES.-The statute makes it imperative that the scire facias shall issue and judgment be had thereon previous to suing out execution upon the forfeited recognizance. Mills, 19 (2 D. & B.), 552.

ADJOURNMENT OF JUSTICE'S COURT.-Where a criminal case before a justice was not concluded on the day set for trial, but was postponed to a subsequent day, defendant's bond to appear on the day set for trial bound him to appear on the day to which the adjournment was made. Jenkins, 121-637.

MUST ATTEND UNTIL DISCHARGED.-When one appears in court, in obedience to the requirement of his bond, and submits himself to the jurisdiction of the court, he continues under the penalty of the bond until the trial is terminated or until he is discharged by the court. Jenkins, 121–637.

SCI. FA. NOT NECESSARY.-It is not necessary to issue a scire facias returnable to the next term of a court after the judgment nisi is taken on an appearance bond. Jenkins, 121-637.

INTERVENING SPECIAL TERM.-A defendant bound over to appear at a regular term which is not held in consequence of the absence of the judge, is required by virtue of section 919 of The Code to attend an intervening special term subsequently appointed and held. Horton, 123-695.

NO RECOGNIZANCE WHEN NOL. PROS. ENTERED.-Where a nolle prosequi is entered the defendant is not required to enter into a recognizance for his appearance at any other term. The solicitor, after entering a nol. pros., may have a capias issued returnable to next term upon the same indictment. Thornton, 35 (13 Ired.), 256.

DEFECTIVE SCIRE FACIAS ON FORFEITED RECOGNIZANCE.-A scire facias reciting that the defendant "was lately bound in a recognizance in the sum of five hundred dollars for the appearance of T. S. at, etc., that the said T. S. failed to make his appearance as he was bound to do; and that it was therefore ordered by the said court that he forfeit his recognizance according to law," is irregular, uncertain and defective. It is defective in not setting forth the recognizance fully, to whom, or where made, and that the same is of record in the court from which the sci. fa. was sued out. It is defective and uncertain in setting forth that T. S. failed to appear as he was bound to do instead of averring that he failed to appear at the court when and where, according to the condition of the recognizance he was bound to make his appearance. It is irregular in setting forth that it was ordered that he should forfeit his recognizance, and requiring the defendant to show cause why this forfeiture should not be made absolute. Mills, 19 (2 D. & B.), 552. RECOGNIZANCE MAY BE AMENDED.-Where the record of a scire facias on a recognizance taken in the county court and the record of the recognizance

itself differs, the county court may amend the entry of the recognizance after appeal to the superior court. Cherry, 13 (2 Dev.), 550.

WHAT COURT ENFORCES.-Recognizances are not commonly to be originally proceeded on in another court, but only in that court which takes them. Cherry, 13 (2 Dev.), 550.

HOW MADE UP.-Recognizances are not made up of separate parchments, but notes are made of them on the minutes, and from these formal recognizances may be drawn out at any time. Cherry, 13 (2 Dev.), 550.

COPIES TO BE SENT TO APPELLATE COURT.-If suits on recognizances are to be removed to another court by appeal, the original recognizance as a distinct record enrolled by itself is not sent up, but copies are used, and if the recognizance is defectively drawn from the note on the minutes, the defect may be cured by having it properly engrossed. Cherry, 13 (2 Dev.), 550.

JUDGMENT CONFESSED.-A person may confess judgment to the state for a fine and costs. Love, 23 (1 Ired.), 264.

FROM WHAT TIME BOUND.-A recognizance binds land from the time it is entered into. Magniss, 2 (1 Hay.), 100.

COURT FINDS THE FACTS.-Upon motion to vacate the entry of forfeiture of a recognizance the court finds the facts and enters such judgment as is proper. Morgan, 136-602.

MOTION TO VACATE ENTRY OF FORFEITURE.-Any fact which shows a valid excuse for the failure of the defendant to appear may be set up by plea or answer to the scire facias, but the entry of forfeiture on the record can not be attacked by answer. Morgan, 136-597.

A respondent to a scire facias can not, by plea or answer, set up that the defendant was actually in court ready to answer to his recognizance when the forfeiture was entered of record, nor can he prove such fact by parol, but his proper remedy is by motion to vacate the entry. Morgan, 136-598.

An entry of forfeiture becomes a part of the record, and the remedy of those who wish to put the truth of the matter in issue is not by plea or answer to the scire facias issued to enforce the forfeiture, but by motion to set aside or vacate the entry. Morgan, 136–596.

Where a motion is made to set aside the entry of forfeiture of a recognizance, its refusal does not prevent the court from reducing or remitting the penalty. Morgan, 136-593.

SOLICITOR'S FEE.-Under the Revisal, section 3220, the solicitor has no vested right to his fee under an absolute judgment upon a forfeited recognizance which was subsequently set aside by the court in the exercise of his discretionary power. King, 143-678.

Under Revisal, section 2768, providing that the "solicitors of the several judicial districts and criminal courts shall prosecute all penalties and forfeited recognizances entered in their courts, respectively, and as a compensation for their services shall receive a sum to be fixed by the court, not more than five per centum of the amount collected," etc., the solicitor is not entitled to a fee upon a judgment nisi of four dollars, or any other amount, when at a subsequent term the defendant is produced by his surety, the court suspends the judgment upon payment of the costs of the sci. fa. and remits the penalty upon the appearance bond. King, 143-678.

The fees of the solicitors are matters entirely of statutory regulation: under Revisal, section 2768, when default was made by one indicted for a misdemeanor and judgment nisi entered against him and his surety, thereafter made absolute, and at a still subsequent term the surety produced the defendant, and the penalty of the appearance bond was remitted by the court, upon payment of costs, the solicitor is not entitled to a fee upon the sci. fa. King, 143-677.

CONTINUANCE DOES NOT RELEASE. The continuance of the case does not release the recognizance given for the appearance of the defendant. Morgan, 136-593.

ACTION OF COURT NOT REVIEWABLE.-An application for the reduction or remission of the penalty in forfeited recognizances by the direct provisions of the statute is addressed to the discretion of the court, and its action is not reviewable. Morgan, 136-593.

ANSWER TREATED AS MOTION.-Where the recognizance is entered on the record as forfeited, and a scire facias is isssued to enforce the forfeiture, an answer denying the truth of the record, though informal, is equivalent to a motion to set aside the entry, when this appears to have been the intention of the defendants. Morgan, 136–593.

ENTRY CAN NOT BE CONTRADICTED BY PLEA.-The entry of the forfeiture of a recognizance can not be contradicted or traversed by an answer or plea to a scire facias issued to enforce the forfeiture. Morgan, 136–593.

A judgment nisi is a conditional judgment against both principal and surety, and does not discharge the surety. Holt, 145

PRINCIPAL UNABLE TO APPEAR.-It is no defense to the surety that the principal failed to appear because at the time he was called he was in the lockup for drunkenness. Holt, 145

CONTINUANCE OF CASE.-A continuance without renewal of bond does not discharge the surety. Holt, 145

Sec. 879 (3214). Proceedings on recognizances to keep the peace.

Every person who shall have entered into a recognizance to keep the peace shall appear according to the obligation thereof; and if he fail to appear, the court shall forfeit his recognizance and order it to be prosecuted, in the manner provided by law, unless reasonable excuse for his default be given.

Code, s. 1225; 1868-9, c. 178, subc. 2, s. 10.

Sec. 880 (3215). Recognizance, when deemed broken.

No recognizance taken under this chapter shall be deemed to be broken except in the failure of the principal in such recognizance to appear and answer according to the obligation thereof, unless such principal be convicted of some offense amounting in judgment of law to a breach of such recognizance.

Code, s. 1227; 1868-9, c. 178, subc. 2, s. 12.

Sec. 881 (3216). When recognizance prosecuted.

Whenever evidence of such conviction shall be produced in the court in which the recognizance is filed, it shall be the duty of such court to order the recognizance to be prosecuted, and the solicitor shall cause the proper proceedings to be thereupon taken. Code s. 1228; 1868-9, c. 178, subc. 2, s. 13.

Sec. 882 (3217). Execution on judgment nisi not to issue before notice. No execution shall issue upon a forfeited recognizance, or to collect a fine imposed nisi, until a notice has issued against the