Walker v. Massey

GOLDTHWAITE, J. 1. It is true the act of 1839, directs that no judgment shall be rendered at the appearance term in any suit for the purpose of collecting money, except by the consent of parties, although the defendant therein may fail to plead or enter an appearance. [Dig. 334, <§> 115.] We think this act has no application to those modes of proceeding which are described by other statutes, with reference to particular suits. Our legislation allows of summary proceedings in many instances, against officers and their sureties, banks, &c.; and although these certainly are suits for the -purpose of collecting money, yet there is no reason to suppose such are covered by*the act. In proceedings by sci. fa. against bail, the statute provides, when the process is made known, “ the bail shall be obliged to plead, and the issue shall be tried at the.same term to which the process shall be [33] returnable.” [Dig. 74, § 16.] And it is not probable the legislature intended to repeal this provision, any more than the summary proceedings directed by other statutes. In our judgment, the act of 1839, was intended to affect suits only in which, before its passage, a judgment final, by default, might have been taken, unless a defence was interposed, and an imparlance thus produced. Suits commenced by sci. fa. against bail, were not within this category, and therefore are not influenced by the statute. 2. It is urged against the affidavit for bail, that it is double, and also that it is in the alternative. It will be seen the averment is said to be distinctly made, that the debtor was about to abscond, and though this is coupled with other grounds for requiring bail, which are laid in the alternative, my own opinion is, that the defective averment will not vitiate that which is good. In Wade v. Judge, 5 Ala. Hep. 130, the affidavit was in the alternative, and for that reason considered to be defective. We do not consider the decision as going beyond this point, as that was the condition of the record. However this may be, the question is not involved here, because the affidavit is not set out by the pleader; that which is stated, is the indorsement by the clerk, of the order for bail, and we are satisfied the statement by him of what was sworn, can neither avail the defendants, or prejudice the plaintiff. The affidavit itself, not being before the court, the objection to it necessarily fails. 3. The principal objection to the bond is, that the condition is variant from that prescribed by the statute, and that it contains no recitals to indicate that it is a bail bond. The statute does not, as supposed by the counsel, direct the condition to be attached to the bond ; it merely provides the sheriff shall take a bail bond with sufficient security, or securities, in the penalty of double the sum for which bail is required, by the indorsement on the writ, and this bond the sheriff is to return with the writ. [Dig. 72, <§> 10.] The mistake of counsel has arisen out of the fact that another part of the same statute permits the defendant from whom bail is required, to enter into a recognizance of special bail before a judge or justice, in which the condition is similar to that required from bail above, in the English courts. [Dig. [34] 73, $ 14.] Bail to the sheriff under our statute is very similar to that required by the act of 23 H. 6, c. 9, in England, and we entertain no doubt the bond in this case, if tested by that act, would be found sufficient. It is payable to the sheriff, by his name of office; and is conditioned that the principal shall appear at a particular term of the court to which the writ is returnable, to answer the plaintiff in a plea of trespass on the case. It is said, a mistake in the sum for which bail is taken will not avoid the bond, nor will a misdescription of the action. All that is essential under the English statute is, that no other or more onerous condition than the statute authorizes, shall be required. [Petersdorf on Bail, 206, 211.] It seems to be conceded, if the arrest of the debt- or, under the writ, was recited, the bond would be strictly formal. But when the sheriff has the process, an actual arrest is not necessary. [Ib. 208.] And in an action of debt, on a bail bond, it is unnecessary to state the arrest, or if stated, it is not traversable. [Tidd’s Prac. 58.] In whatever aspect we can look at the bond, there seems to be no valid objection to it. 4. In Toulmin v. Barnett, 3 S. & P. 220, it was held tobe unnecessary to declare on sci. fa. against bail, if the pleader inserts in his writ all that is necessary in a declaration. Here the writ against the debtor is stated with the order for bail, the bail bond is set out at length, with the averment that it was returned by the sheriff with the writ, executed by the defendants; the assignment is in the terms of the statute, and the ca. sa. was issued and returned before the award of the sci. fa. All this we think is sufficiently formal and regular ; the only matter which is not precisely so, is the averment of the execution of the bond by the defendants; but we think the averment “executed by the defendants,” must be considered, not as a part of the sheriff’s return, but as the assertion of the pleader, that when thus returned it had been executed by them. See Embree v. Norris, 2 Ala. Rep. 271. We are not able to come to the conclusion of error, and therefore the judgment is affirmed.