Lindsay v. State, 15 Ala. 43

Lindsay v. State

15 Ala. 43 | Ala. | 1848

CHILTON, J.

1. The objection taken to the bond executed by the defendants for the appearance of the prisoner, Gardner Hardy, namely, that it is not a sealed instrument, cannot be allowed, to prevail. The cases relied upon by the counsel to sustain it, of Henderson v. Ross, Minor, 421, and Lea v. Adkins, Ib. 187, do indeed support his position, and the principle there decided has since been recognized by this court. Carter v. Penn, 4 Ala. Rep. 140. Which last case was one in which the parties to the instrument had given no intimation in the body thereof of their intention to seal it, or to regard it as a writing obligatory. But it will be observed, the cases relied upon, were decisions under the law as it stood before the passage of the act of 1839, which changes the law, and declares, that “ all covenants, conveyances, and all contracts in writing, which import on their face to be under seal, shall be taken, deemed and held to be sealed instruments, and shall have the same effect as if the seal of the party or parties were aflixed thereto, whether there be a scrawl to the name of the party or parties, or not.”

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*49stance, has gone into disuse, the courts, while they cannot disregard such technicalities as have become interwoven with the jurisprudence of the country, are disposed, nevertheless, to look to the instrument as ascertaining the intention of the parties with respect to its character, rather than to the formula of sealing, by scrolls and circumflex lines, opposite the signature.

2. It is insisted, in the second place, that, although the statute conferred power on the court to authorize an amendment of the scire facias, yet the court erred in continuing the cause after the demurrer was sustained, no motion being made to amend. It appears by the record, that on motion of the defendants, the scire facias was quashed, and an alias scire facias was ordered to issue upon the original judgment nisi, and the cause was continued — afterwards, upon the return of the alias, on motion of the defendants, it was likewise quashed by the court. Thereupon the solicitor for the state obtained leave to enter a formal judgment nisi nunc pro tunc, which was done, and the scire facias upon which the final judgment was rendered, was issued upon this amended judgment, and in our opinion cannot be affected by any erroneous action of the court in respect to the writs that were quashed. The continuance of the cause after the writ, which was the foundation of the proceeding, had been quashed, amounted to nothing. The court decided for the defendants as to the two first writs, and as the proceedings under the amended judgment have no connection with the proceedings under the original judgment nisi, which terminated in favor of the defendants, they cannot be heard to complain, that an error intervened in the prior proceeding, so as to reverse the judgment upon the latter. Aside however from this view, the continuance of causes is matter of discretion in the primary court, and not revisable on error; but if it were not discretionary in this case, and we could revise it, still it is clear the defendants have sustained no injury. That there was error is not sufficient — the plaintiff in error must show that he sustains injury thereby. Such have been the uniform decisions of this court.

3. It is contended for the defendants in the judgment, that *50the scire facias and judgment nisi were defective in not setting forth that the defendant was called to answer the charge specified in the indictment and recognizance.

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 *51is true, but does not answer the objection, that he was not called to answer it. He was merely called to come into court — not called to answer, and until this is done, he is not in default, though he fail to answer as the record recites,.

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.