Hardy v. . Andrews

This is a sci. fa. to subject the defendant as *Page 478 special bail. The defendant is the sheriff of Randolph County, and as such a writ was placed in his hands by the plaintiff to be executed on the persons therein named. The defendants in the writ were duly arrested, and the bail-bond, set out in the case, was executed by them. At the return term of the sci. fa., a special plea was filed by the defendant, setting forth an alleged assignment of the bond to the plaintiff, made by him. To this plea there is a demurrer.

The only question before us is as to the sufficiency of the assignment.

The original process, upon which these proceedings are had, issued in 1853, and the bail-bond and the alleged assignment were executed in March, 1849. So, that the question before us is not affected by the act of 1856. The provision of the act of 1836, Rev. stat., ch. 10, sec. 2, under which the proceedings are had, directs that "all bail-bonds, to any of the courts, c., shall be assigned by the sheriff, c., returning the same, by an endorsement thereon, in the following form, c.," which has been pursued by the defendant in this case, but the form concludes as follows: "In witness, whereof, I have herento set my hand and seal, this the ___ day of ___, ___;" "and every sheriff, c., failing to make such assignment, shall be deemed, held, and taken as special bail in the same manner as if no bail-bond had been returned. To the return of the bail-bond, there is what is insisted by the counsel, a sufficient assignment. The form begins, "I, Hezekiah Andrews, sheriff, c.," and to it, there is a printed seal, the whole form being printed, but there is no name preceding the seal. That is in blank. This presents the only question in the case. Is the appearance of the name in the body of the form a compliance with the requirement of the act? We think not. The conclusion of the form, set out in the act, is a sufficient answer. Seals were adopted to written instruments long before the art of writing was in general use. Each individual adopted some device in his seal, showing, thereby, its appropriation by him. When, however, in process of time, writing became more diffused among the community, this appropriation *Page 479 of the device of the seal passed out of use, and the appropriation of the particular seal, to the use of him who claimed it, was evidenced by the person affixing his name to the seal.

This is peculiarly necessary in this State, where it has been judicially decided, that any scrawl affixed to a man's name purporting to be a seal, is a seal. It is the mode of identification and appropriation. If the scrawl is not preceded by the name of any one, it is not the seal of any one, and the instrument is not a deed. This is the first attempt we have known, to apply to deeds the construction given to wills under the statute of wills as to signing the script by the testator.

The assignment of the bail-bond, attempted by the defendant, is incomplete, and therefore of no effect, or force, in consequence of the omission of the name preceding the scrawl. This omission is not supplied by the sheriff's name appearing in the body of the instrument. See Mann v.Hunter, 2 Jones' Rep. 11.

PER CURIAM. There is no error. Judgment affirmed.