1 Idaho 88 | Idaho | 1866
delivered tbe opinion of tbe court,
Tbe complaint in this suit is upon a bond given by tbe defendants as security for tbe appearance of B. J. Bugbee before tbe court, and that be would, at all times, bold himself subject and amenable to tbe orders of tbe same, and alleging as a 'breach of such bond that the said Bugbee was duly called on tbe thirty-first of July, 1865, to appear for trial, but failed to appear, whereupon the bond was declared forfeited by the court. To this complaint there were two demurrers interposed by separate defendants, but based substantially upon tbe same grounds.
One objection to tbe complaint raised by both demurrers is that tbe plaintiffs named therein have not legal capacity to sue or maintain an action in any court. The power or right of tbe people to commence and maintain suits to recover tbe penalty of forfeited recognizances of this character, as also tbe proper construction to be given to, or tbe effect of that part of tbe bond where it is declared that tbe parties are liable for the sums set opposite their names respectively, have been fully determined in tbe case of The
The only remaining point raised by the demurrer, which it is necessary for us to examine, is that the ‘ ‘ complaint does not state facts sufficient to constitute a cause of action.” On a careful examination of this declaration we see no material departure,, in the statement of the grounds upon which this suit is based, from the provisions of section 39 of the civil practice act. The bond is declared upon according to its legal effect by a clear and concise statement of the conditions and the breach, and of all the other facts necessary to entitle the plaintiffs to recover. The parties liable under this bond, and who are properly made defendants in this action, are those persons subscribing their names to the same. The fact that a name appears in the body of a bond that is not subscribed to it, or that some or all of the names subscribed to such bond do not occur in the body of the same, does not in the least affect the liability of those who executed and delivered it.
Several other points were made on the argument under this clause of the demurrer, but which it is unnecessary to notice here.
The last point which it will be necessary for us to examine is the objection made by the defendants to the introduction of the bond sued upon. They urge against its introduction several reasons, the most material of which áre: 1. That the ‘ ‘ erasures and interlineationsappearing on the face of the bond were not accounted for nor explained;” and, 2. “The execution of the bond was not shown or the signatures of the parties proven.”
As to the first of these objections, it appears on an examination of that instrument that the name of “ J. McGinley” is erased, which occurred in the body of the bond; and below all the other names, making the last name in the body of the same, as well as at the end, is interlined the name of
The second objection, as above stated, went to the proof of the signatures of the parties. This bond was executed and delivered into the custody of the clerk of the court before whom the defendant, Bugbee, was to appear, on the fifteenth day of July, 1865. The parties subscribing it also take and subscribe a justification that “ they are each worth the sums set opposite their names respectively in the foregoing bond.” This oath was administered by the district judge, and the bond was approved by him at the same time. The bond was given for a purpose and under circumstances authorized by law. From these facts the court found, and very properly we think, that the signatures were genuine and that the execution of such bond was sufficiently proven. The bond was therefore properly admitted in evidence.
There were some other objections raised on the motion for a new trial and also on the argument in this court, but all either directly or indirectly arising upon the same
The judgment of the court below was properly rendered against the defendants; but a clerical error seems to have occurred in the entry of such judgment in the records of the court. It should have been rendered jointly against all the defendants named in the action, that their joint property may be liable to execution; and severally against the defendants who were served with summons. The bond is made by express terms joint and several.
The judgment of the court below is affirmed, with instructions to amend the same as indicated in this opinion.