| Miss. | Oct 15, 1876
delivered the opinion of the court.
Judgment of affirmance having been pronounced herein, a motion in arrest thereof is submitted upon the part of the sureties in the supersedeas bond, on the ground that that instrument does not conform to the requirements of the statute, and cannot therefore be made the basis of the usual judgment of affirmance. The body of the instrument is in the usual form, and is signed by the judgment debtor and two sureties, as required by law. Opposite the names of the principal and of one of the sureties there are seals affixed, but there is none affixed to the name of the second surety, who is the third and last signer.
Inasmuch as the statute (Rev. Code, § 410) requires
In support of this proposition we are referred to the cases of Baskin v. May, 9 S. & M. 373; Brown v. Levins, 6 Port., 414" court="Ala." date_filed="1838-01-15" href="https://app.midpage.ai/document/brown-v-levins-6529307?utm_source=webapp" opinion_id="6529307">6 Porter, 414. It is to be observed that in both of these cases the objections to the bonds were urged by the appellees, who desired to have the appeals dismissed or the supersedeas discharged. Whether such objection would be heard after the entry of a judgment of affirmance from those who had brought the case to the appellate court, and thereby obtained the full benefit of the defective instrument as a valid one, may be considered more questionable, though it seems to have been so held in Curry v. Barclay, 3 Ala. 484" court="Ala." date_filed="1842-01-15" href="https://app.midpage.ai/document/curry-v-barclay-6501656?utm_source=webapp" opinion_id="6501656">3 Ala. 484.
Conceding, without deciding, the point, we will consider whether there are sufficient circumstances apparent upon the record to warrant us in holding that the party who failed to affix a seal to his name adopted those affixed by the others.
It has been held from the earliest times that it was not essential that all the obligors in a joint deed or bond should affix their seals, but that where one had sealed, the others might adopt the seal affixed by him. Thus it was said in an early case that “ if one of the officers of the forest put one seal to the rolls, by assent of all the verderers, regarders, and other officers, it is as good as if every one had put his several seal, as in case divers men enter into an obligation, and they all consent and set but one seal to it, it is a good obligation of them all.” Lord Lovelace’s Case, Sir Wm. Jones, 268; Com. Dig. title Fait, A. 2; 2 Phill. Evid. (4th Am. ed.) 457, and cases cited.
This adoption by one of the seal of another, or by several of the seal of one, was anciently evidenced by the imprinting of the several seals or marks upon a common wax or wafer; but the substitution of scrolls for wax in modern times has not rendered the doctrine obsolete; and though there no longer remains ocular evidence of the adoption, and the proof of it is
The undoubted tendency of the cases has been, as far as possible, to do away with the idle ceremony of affixing seals; which, however important and essential before the general diffusion of education, seems long since to have lost its value, and is probably retained, partly from the fear that its abolition may produce unforeseen legal difficulties and complications, and partly from that strong feeling of conservatism which we have inherited from our English forefathers, and which is, perhaps, nowhere so potent as in the legal profession.
Whether, where one seal is affixed, the recitals in the instrument itself, that it is the bond of all, are sufficient to show that this seal has been adopted by all the signers, has been much discussed; but the authorities are by no means uniform. Such recitals have been held insufficient in Maryland and -Pennsylvania. Stabler v. Cowman, 7 Gill & Johns. 284; Taylor v. Glaser, 2 S. & R. 502. They were also held insufficient, but by a divided court, in North Carolina (Chief Justice Henderson dissenting). Yarborough v. Monday, 2 Dev. 493. In Tennessee, it was said that the recitals would be sufficient on demurrer. Hollis v. Pond, 7 Humph. 222. They were held sufficient of themselves to show adoption in Maine and Kentucky. Bank of Cumberland v. Bugbee, 19 Me. 27" court="Me." date_filed="1841-04-15" href="https://app.midpage.ai/document/bank-of-cumberland-v-bugbee-4927332?utm_source=webapp" opinion_id="4927332">19 Me. 27; Bohannons v. Lewis, 3 Monroe, 376. In New York, it was held by Chancellor Kent, that, though one partner had no right by instrument under seal to bind his copartner, yet if the latter knew of it, and acted upon it, he would be held to have adopted the seal affixed. Mackay v. Bloodgood, 9 Johns. 285" court="N.Y. Sup. Ct." date_filed="1812-10-15" href="https://app.midpage.ai/document/mackay-v-bloodgood-5473077?utm_source=webapp" opinion_id="5473077">9 Johns. 285. In Pennsylvania, it was held that, in such a case, the fact that the partner who had not sealed, referred, in a subsequent instrunient, to the disputed document, and received the benefit of it in a business negotiation, was a strong circumstance to show an adoption by him of the seal affixed by his copartner. Fichthorn v. Boyer, 5 Watts, 159" court="Pa." date_filed="1836-05-15" href="https://app.midpage.ai/document/fichthorn-v-boyer-6311572?utm_source=webapp" opinion_id="6311572">5 Watts, 159.
While these authorities leave it doubtful whether the recitals of the instrument alone may be taken as affording sufficient evidence that the party who has not affixed a seal adopted
In the case at bar, the surety, who failed to affix a seal or scroll to his name appeared before a magistrate and subscribed and swore to an affidavit, setting forth that he was worth the penalty of the bond. In this affidavit, which must be held to have been written by him, or, at least, to have been read and adopted by him, the paper is twice styled a bond, and he is styled a surety on it. It was argued that this was the language of the magistrate, and not of the party. We do not so understand it. Certificates speak the language of the officers making them, but affidavits that of the affiants.
The paper, with the affidavit annexed, was then filed with the clerk of the Circuit Court, a supersedeas was issued, and the case brought to this court. It was here treated by the parties and the court as a supersedeas bond, until after judgment of affirmance pronounced, when, for the first time, its validity as such was challenged by this motion.
Whenever, upon the rendition of a judgment against the principal in a bond, judgment goes also by operation of law against the surety, the latter must be held to be always in court to the same extent that his principal is, equally with him a party to the suit, with the same knowledge of the proceedings therein, as we had occasion to declare in the recent case of Jones v. Coker, ante, 195. It follows, therefore, that, since the execution of the appeal bond in this case, the sureties have been constantly asserting that it was their bond : first, before the magistrate>who took their affidavit of solvency; then, before the clerk who issued the supersedeas; and, finally, before this court. We will not say that they would be thereby estopped from denying that such was its character, if, in fact, it was wholly unsealed ; but, inasmuch as two seals appear upon it, we think that these circumstances may be fairly held to indicate an adoption of those seals by the third signer.
The motion in arrest of judgment is overruled.