Hall v. State , 9 Ala. 827 ( 1846 )

COLLIER, C. J.

111 the posture in which this case is presented, we do not think it material to inquire whether it can be assumed as a legal conclusion from the fact that the name of Thomas' Clements does not appear in the body of the recognizance with the others who subscribed it, that he is not one of the recognizors. The omission to affix a seal to the name of each one who subscribes a recognizance, which is regularly acknowledged before a court, or some officer authorized to take the acknowledgment, we should think cannot impair its validity, or make it less effective. A recognizance as such, dons not derive its efficacy so much from the form, of its execution, as from the occasion upon which it was taken, the object of it and the competency of the tribunal or officer who takes the acknowledgment of the recognizors. ]5 Jacob’s L. Dic. 393; 2 Black. Com. 341; 1 Chitty’s Cr. L. 90; 2 Step. Com. 187.] But if a seal be necessary may not one seal be referred to the names of all who subscribe the obligation, and thus make the execution sufficient. [1 Caine’s Cases, 1; 9 Johns. Rep. 784; 3 Monr. Rep. 376.]

The omission of the names of the parties from the body of a recognizance cannot affect its validity, and the only reason, it would seem, that an inspection of it in the present case suggests why Clements is not a party, is because no blank was left for the insertion of his name, and the names of the other recognizors are inserted. [3 Dane’s Ab. 599, and cases there cited; 5 Mass. Rep. 538; 5 Taunt. R. 707; 5 Dane’s Ab. 294, and cases cited.] But the question whether Clements joined joined in the recognizance could not be raised by a demurrer. A general demurrer is a confession of all facts informally stated, or which, though informally pleaded, are helped by the statutes of amendment. It does not however confess all matters of fact, but only such as are well and sufficiently pleaded. [Mansel on Dem. 96, 97.] By a demurrer, a question of law is raised between the parties and referred to the court for its decision, viz : whether the declaration discloses a good cause of action, or the plea an avoidable bar. [Step. Plead. 54; Mansel on Dem. 5.] And where an issue of law is thus made up, the court must give judgment for one party or the other. [Mansel on Dem. 94; 2 Cond. Rep. U. S. 132.]

We have frequentty held, that where a general demurrer is interposed to an entire declaration, containing good and bad counts, that it must be overruled; because it cannot be affirmed upon the entire case, that the plaintiff has no right to recover. Upon the same principle, if no other, the demurrer could not be sustained .in this case, even conceding that the recognizance furnished intrinsic evidence that one of the defendants in the scire facias was not a party to it. In Robinson and another v. The State, 5 Ala. Rep. 706, it was said, that the proceeding by scire facias, on a forfeited recognizance is not governed by the rules which apply to actions prosecuted by individuals. That although the statute declared, that every joint judgment, bond, &c., should, in legal effect be joint and several, and process might be sued out against any one or more of the parties liable thereon, yet if all were sued and served with process, the action could not be discontinued as to any one, without putting an end to the entire case. We said further, that “ this enactment has never been considered applicable to a recognizance of bail in a criminal case, whether joint or several, nor has the more stringent rule of the common law, which regulates proceedings on contracts between individuals, been held to inhibit the prosecution of a scire facias, and the recovery of a judgment against any one or more of several recognizors. The scire facias is regarded as amere notice to the parties to the recognizance, to show cause why they should not be subjected to the payment of its penalty; the State may call upon such of the parties as its prosecuting officer may select, to show cause, and allow the proceedings to be silently discontinued as to the others.” See also, Howie and Morrison v. The State, 1 Ala. Rep. 113. Here is an authority conclusive to show, that although some of the defendants against whom a judgment nisi is rendered, may resist a recovery, by proving that they were not recognizors, yet this is no answer to the scire facas as it respects their co-defendants; andas to these, the jvdgment may be made absolute. In the case before us, if the recognizance imposes a legal obligation upon those who executed it in the usual form, the demurrer it is clear, should not have been sustained; for the effect of allowing it, would have been to defeat a recovery in toto, as a demurrer in a case at law cannot be sustained in part, and overruled as to the residue, where it goes to the entire cause of action.

According to the modern practice, oyer is not demandable of a record, unless it be a deed enrolled, letters of administration, &c. [Step. Plead. 68-9; 3 Ala. Rep. 26.] The proper mode to take advantage of a misrecital of a record in pleading, is by plea of nul tiel record, concluding with a prayer that the same may be inspected by the court. A demurrer in such case would not avail the defendant, because the record misrecited does not become a part of the proceedings in the cause, until it is made such by bill of exceptions. [Step. Plead. 101; 3 Ala. Rep. supra; 2 Saund. on Pl. & Ev. 754-5; 7 Pick. Rep. 232; 1 Blackf. Rep. 16; 8 Sergt. & R. R. 239; 1 Saund. R. 291, C. N. C. The scire facias, in the case at bar professes to set out the recognizance and judgment nisi at length, so that the plea of nul tiel record could not be necessary, if they are correctly copied to give to the defendants the benefit .of any legal question which may arise upon their inspection. If the recognizance upon its face indicated that it was not the act of the defendant, Clements, then perhaps he might have filed a several demurrer, instead of uniting with his co-defendants. But if this was a matter of doubt upon an inspection of the record, an issue should have been submitted to a jury to determine whether that defendant joined in the recognizance.

The recognizors stipulate that Hall, the principal shall appear and “answer a charge to be exhibited against him on behalf of the State of Alabama, for carrying concealed weapons,” &c.

This charge, it is insisted, is not an offence known to the laws of this State, and the recognizance does not impose a legal obligation either upon the principal or his sureties. In The People v. Blackman, 17 Wend. Rep. 255, the court say, “ It is not necessary to set forth the offence in the warrant, mittimus, or recognizance, with all the particularity, or detail required in an indictment. Mr. Chitly lays down the doctrine that it is not necessary to set down the charge or of-fence at all in the warrant to arrest; and he seems to be fully supported by authority;” it was concluded that the recognizance is valid, if the offence be charged substantially, though not in the words of the statute creating it. In Browder against the State, at this term, the recognizance required the principal to “ appear, fyc. and answer the charge of the State against him for resisting process.” The offence denounced by the statute is, for knowingly, or wilfully resisting or opposing any officer of this State, in serving, or attempting to serve, or execute any legal writ, or process, whatsoever. The court said, “ We think the terms, resisting process, are sufficiently significant in a recognizance to indicate the of-fence intended to be charged.” Again; “ Here the offence is merely designated in the recognizance, the terms of which are adopted by the judgment. This we think is quité sufficient ; it cannot be admitted that the same precision in this respect, is required in a recognizance as in an indictment.”

The act under which the recognizance in the case at bar was taken, is as follows: “ Every one who shall hereafter-carry concealed about his person, a bowie knife, or knife or instrument of the like kind or description, by whatever name called, dirk, or any other deadly weapon,” &c. “ unless such person shall be threatened with, or have good cause to apprehend an attack, or be travelling, or setting out on a journey, shall on conviction,” &c. [Clay’s Dig. 436, § 4.] We think the conformity of the recognizance'to the statute in this case, is quite as near as in Browder v. The State, at this term, and the offence charged is indicated as clearly in the one case as inthe other. In the one, the place and mode of concealing the weapon is not expressed, nor is the character of the weapon shown ; in the other, the description of the process, by whom and when issued, and in whose hands it was placed for execution does not appear. These are matters to be amplified in the indictment, while in each case we think the recognizance sufficiently particularizes the offence.

It is supposed by the counsel for the defendants, that the case of Badger and Clayton v. The State, 5 Ala. Rep. 21, is conclusive to" show, that the recognizance is defective, in not stating the principal recognizor was required to answer an offence known to the law. The condition of the recognizance in that case, required the accused to answer a charge of the State, “ exhibited against him for exhibiting a circus for pay, without first obtaining a license from the clerk of the county court,” &c. The judgment nisi recites that he was called to answer a charge exhibited against him for exhibiting a circus without first obtaining a license according to law, came not, but made default. Upon the authority of Howie and Morrison v. The State, 1 Ala. Rep. N. S. 113, that the judgment nisi could not be made absolute, because it did not conform to the recognizance. It was also “ added, that the judgment is not defective, -for a misrecital of the charge against the principal recognizor, but as the scire facias can only be sustained by a valid judgment, it is defective in not stating any legal charge.” This latter remark isa mere álictum, and was so considered by us in Browder v. The State, supra; it was not a point necessary to be decided, for the opinion of the- court clearly shows,, that the judgment of reversal was rested upon the ground that there was a variance between the recognizance and judgment nisi. We mention this, that an opportunity may again be afforded of declaring that we cannot treat the obiter dicta of this, or any other court as authoritative. Whether the dictum referred to, is adverse to the view now taken, we will not stop to inquire. We have but to add, that the judgment of the Circuit Court is affirmed.