State v. Davidson

20 Mo. 212

• Court: Supreme Court of Missouri
• Decided: October 15, 1854
• Status: Published

Opinion

Gamble, Judge,

delivered the opinion of the court.

Davidson became bound as the security of one Wright, in a recognizance for the appearance of Wright in the Circuit Court of Jefferson county, to answer an indictment. The recognizance was regularly forfeited, and this scire facias is brought to have execution for the amount. Davidson alone was served, and relies upon a remission of the forfeiture by the governor as his defence. The Circuit Court held it to be a defence.

By the recognizance, Wright, as principal, and Davidson, as security, acknowledged themselves each to be bound to the state of Missouri in the sum of one thousand dollars, for the appearance of Wright in the Jefferson Circuit Court, to which the indictment had been removed on a change of venue from the Eranklin Circuit Court. The remission by the governor remits and discharges Wright from liability upon a recognizance for the sum of one thousand dollars, entered into by Wright for his appearance before the Circuit Court of Franklin county. The Circuit Court held that the remission in favor of Wright discharged Davidson.

1. As we read the recognizance, each person was bound in a sum of one thousand dollars for himself, and not that both were bound for the same one thousand dollars. To make them bound only for the same single sum, it is necessary to strike the word “ each” out of the recognizance. The remission then of one of the sums is not the remission of the other. If the remission had been of the sum of one thousand dollars in favor of Davidson, the security, it is not supposed that it would be insisted that Wright, the principal, was discharged. Yet the construction of the instrument ought to be the same in each case. The obligation was several, not joint; neither was liable for the sum acknowledged by the other.

2. The remission, moreover, was not applicable to this recognizance. There was in the record a recognizance for Wright’s appearance at the Circuit Court of Franklin county. The one on which this scire facias was issued was for his appearance at Jefferson county.

The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.