The proceeding is one by scire facias to make absolute a conditional judgment taken against the defendants, as sureties on a forfeited bail-bond. Such a proceeding is purely civil, and not criminal in its nature, being merely a suit for the recovery of money. The issue to be tried is the showing of cause why the judgment nisi, taken against the defendants at a former term, should not be made final. The statute provides that this issue, whatever may be the nature of *47the excuse for default, shall be heard and determined by the court. — Code, 1876, §§ 4867-68. If the court decide that the excuse is a good and sufficient one, the conditional judgment is set aside; otherwise, it is made absolute. — Code, § 4S67. It does not seem to be contemplated that controverted issues of fact, arising in trials of this kind, will require the aid of a jury in their determination. The sufficiency of the excuse will often depeud upon evidence which is conflicting, and yet it must be determined by the court.—Dover v. State, 45 Ala. 244, 254; Hammons v. State, 59 Ala. 164. Where issues are involved, however, other than the legal sufficiency of the principal’s excuse for default, they would probably require the determination of a jury. However this may be, no objection was raised by the State, as plaintiff, in the court below-, to the trial of the cause by the court, so far as appears from the record, and it is too late to raise such an objection for the first time in this court. The right of trial by jury is a priviege, which may be waived, in civil cases, by the con sent of the parties litigant; and this seems to have been done in the present case, conceding that the right existed.
The judgment-entry shows that the issue decided in favor of the defendants was that raised by the third plea, averring the discharge of the defendants’ liability as sureties by reason of the court’s having taken and held their principal in custody and incarceration without the consent of the defendants. There is no demurrer to this plea. Nor is there any bill of exceptions setting out the evidence upon which the court acted in deciding the issue before it. It may be that the evidence disclosed the fact that. the principal was required to enter into a new undertaking of bail, by reason of the insufficiency of the original one, and that he was ordered into custody for failure to comply with the order of the court. — Code, 1876, § 4862. The plea was broad enough to admit such an issue, in the absence of all objection to evidence supporting it. This would have operated to discharge the sureties from any future default. Our duty is to presume that, if the evidence had been disclosed, it would have sustained the ruling of the court.
Affirmed.