15 Ala. 43 | Ala. | 1848
We cannot well mistake the design of the parties with respect to the execution of the instrument before us, as on the face of the instrument it clearly imports to be sealed. 1. They characterize it by the use of technical language, which can alone be descriptive of sealed instruments. They “bind and oblige themselves,” &c. — they speak of “the condition of the above obligation,” and upon performance of the condition, provide “the above obligation to he void.” Besides — 2. The six signers of the instrument, opposite each of their names, have added the word “seal,” written in the usual form within a scroll. We think it too clear to admit of any doubt, that the instrument on it's face purports to be sealed, and that the parties so intended it. At common law, it was not necessary that it should be stated in the instrument, that it was sealed and delivered, because these, says Lord Coke, were things which were done afterwards. 2 Co. 5, a; Tol. Law Dic. Tit. Bond. Since the common law formality of sealing by impressions upon wax, or other impressible sub
The judgment, as the same was amended, recites, that the said Gardner Hardy, (the principal in the bond, and for whose appearance the same was conditioned,) “ being called, came not- but made default.” It fails to set forth that he was called to answer any particular charge, and in this respect the proceeding is fatally defective.
In Howie and Morrison v. The State of Alabama, 1 Ala. Rep. 118, the point is expressly decided, and it was there held, that it should appear by the judgment nisi, that the accused was called to answer the charge which his recognizance had stipulated he should answer, so that it might appear the party had forfeited his recognizance. In that case the bond was conditioned that the party appear and answer a charge for counterfeiting a certain draft, &c., particularly describing it. The defendant was called to answer an indictment for forgery. The court held the judgment did not show a default for which the recognizors should be held liable. The default against which they had stipulated was for his failure to appear and answer a particular offence, the forging a certain draft, which the recognizance described, while the default of record was for failing to appear and answer for the forgery generally. It might be for the offence described in the recognizance, or for any other act coming within the appellation. The case at bar is much stronger for the defendants. Here, the recognizance is, “ to appear and answer an indictment for an assault with intent to commit murder,” — the default is, that the defendant, Hardy, was called, but for what purpose does not appear. It is very clear that there can be no default until Hardy fails to appear, when called to answer the charge for which he has been recognized. The case of Farr and Simpson v. The State, is also in point, to show the proceedings had in this cause cannot be sustained. See 6 Ala. 794. Also, authorities on the brief of plaintiffs in error.
It is true, as insisted by Mr. Attorney General, that the judgment nisi recites, that the defendant failed to appear and answer the bill of indictment, recited in the bond, &c.; this
The record does not show a confession of judgment for the $200. .The defendants showed cause why the judgment nisi, &c. should, in the opinion of the court be reduced to that sum. By no rule of construction could the language employed be considered a judgment by confession.
It follows, that the court below should have quashed the scire facias, which upon its face,-shows the proceedings to be erroneous.
The judgment is therefore reversed, and the cause is remanded.