10 Mo. 341 | Mo. | 1847
delivered the opinion of the Court.
This was an action on three several recognizances, taken on appeals from a justice of the peace to the Circuit Court.
The declaration contained six counts, three counting on the instruments as bonds, and three as recognizances.
The parties went to trial on the pleas of non estfactum, nul tiel record, as to the judgments appealed from and set out in the plaintiffs’ declaration, and nul tiel record as to the recognizances of appeal.
The recognizances contained only the name of the appellant, or person appealing, the names of the sureties were omitted in the body of them, they ran thus: “Know oilmen by these presents, that we, Thomas Jldams and-■, acknowledge ourselves,” &c. They were signed by the sureties. The justice before whom the causes were tried, testified that the recognizances were originally entered into before him by Adams, the principal, and Willis Cartwright, as surety, on the ninth day after the trial. The plaintiff, the justice, and appellant, agreed that an appeal could not be granted on the recognizance, because Cartwright, the surety, was deemed insufficient. The appellant promised to obtain the signature of Jesse R. Allen, as a surety. The recognisances, in this situation, were left with another justice of the peace to procure the signature of Allen. That was procured,’and in two or three days afterwards the recognizances were returned to the justice who tried the cause; he did not know whether they were executed within ten days from the trial or not, but was told that they had been.
From the foregoing statement of facts, the plaintiff, in the Court below, was not entitled to recover. The law requires recognisances to be entered into before the justice who tries the cause, and within ten days from the day of trial, or from the refusal to set aside a judgment of non-suit. If these requisites are not complied, with, it will be a good cause for dismissing the appeal. The justice should see that they are conformed to, otherwise he must know the appeal can avail nothing. After the expiration of the ten days, the officer has no right to take a recognizance; his return is prima facie evidence of the facts contained in it, and the law will presume that a justice has done his duty when nothing to the contrary appears, but enough is here shown to repel that presumption, and to throw on the plaintiff the onus of proving the proceedings to be regular. The justice certifies to a fact of which he knows nothing. These recognizances are not like official bonds and instruments of that character, concerning which it has been held that though the requisites
There is another objection to these recognizances on which this suit is brought — the names of all the cognizors are not inserted in the bodies of the instruments. The rule of law appears to be well settled that if there are several obligees, all or none ought to be named in the bond, and if a bond is in these words, “We, A. and B., bind ourselves,” &c., be also sealed by C., it is not C.’s bond; so a bond in these words, “I, A. B. am bound to C.,” although it be signed by D., is not D.’s bond. 1 Tuck. Com. 275. This principle would seem as applicable to recognizances as to bonds.
The other Judges concurring, the judgment of the Court below will be reversed.