
    THOMAS W. CUNNINGHAM vs. STATE OF MISSOURI.
    1. A recognizance is similar to an obligation or bond, and subject to the same rule* of construction.
    2. If a recognizance or bond be subscribed, it is obligatory, though the signatures be not inserted in the body of the instrument. Adams et al. vs. Wilson, 10 Mo. R> 341; overruled.
    3. The act incorporating the city of St. Louis gives the Mayor authority to take recognizances of persons charged criminally before him; and there is no prohibition of such an exercise of legislative authority.
    APPEAL from St. Louis Circuit Court.
    STATEMENT OF THE CASE.
    On the 8th of October, 1849, a recognizance was filed in the circuit court of St. Charles county conditioned for the appearance of John Isaac and William Floyd, in the circuif of said county, at the October term 1849. The reeognizanr» recites as follows: “1 ally appeared, John Isaac and William Floyd as principals, and-as his securities, and jointly and severally acknowledged themselves, <§-c.w The recognizance wn* signed by John Isaac and William Floyd, and by Thomas W. Cunningham. This recognizance was taken before Ludwell E. Powell, mayor of the city of St. Charles, May 23,1849.
    October term 1849. — Floyd and Isaac were indicted for burglary and felony.
    October 12th, 1849. — A-was taken on the recognizance.
    March 28th, 1850. — Sc',re facias issued. (Record, p. 5.)
    May term, 1850. — The defendant, Cunningham, appeared to the scire facias and demurred to the scire facias.
    
    The demurrer was overruled, (record p. 6) and a judgment recovered against Cunningham, who, thereupon, took an appeal.
    Hunt, Glover & Campbell, for appellants.
    The appellant insists on the following points:
    I. That he is not bound by the recognizance set out in the scire facias-, his name not being written in the recognizance, and there being no words in the recognizance referring to him as an obligor. That his signature at the bottom of the instrument was not required by law, and is no part of the recognizance. A recognizance is an obligation of record, entered into before some court or magistrate duly authorized with a condition to do some particular act, ,and is witnessed by the record of that court, and not by the signature or seal of the party. The name of the recognizor should be written in the body of the recognizance- 1 Bac. abrig. p. 360, (je.;) 3 Hawk. 227, book 2, ch. ¡5, sec. 83; 4 Inst. ,p. 178-9; 1 Cb. C. L., p. 72, 84-5, .18 p.; margin, p. 90, 103-4; 5 Bac ab. p. 159 (e.) as to obligations, &c.; l Tuck. Notes, p. 275; 2 Leigh R., p. 630; 10 Mo. R., p. 341,380; Rev. C. 1845, p. 861, secs. 26, 29, 36 and 37; Doll: Q., c. 176; 2 Rev. C. 1825, p. 839, secs. 23 and 27, show form under our laws.
    II. The mayor of the city of St. Charles had no power to take and certify said recognizance. The mayoralty is an executor, and nota judicial officer: The taking at a recognizance is a judicial act, and the General Assembly had no constitutional power to blend the two, or to confer them both on the same person; hence, the city charter gave him no power. They cannot confer executive duties on a judicial officer, nor judicial powers on an executive: Bess. acts 1848-9, p. 268-9, art.'3 and 4; State Cons., art. 2; R. C 1845, p. 29, arts. 3, 4 and 5, sec 17; 1 Tuck. Black. 1 part, appendix, p. 5, in note; 2 Dallas, p. 409-10-11, also p. 307; Beach, c. 475; Ams. &. Ang., corp.p. 67, cb, 273, see: 3, 4, &e,; also page 279 — no State can grant power to do that which it cannot do itself: Federalist, Nos. 47, 48, 49, 50 and 51- — as to the meaning of the maxim, that the political power should he divided into three departments, &c., Jefferson’s notes on Ya., p. 395; Tuck. Blk., 1 part 1 vol., ap. 79, 187 and 188.
    IV. Hence, mayors, as such, having no power to take recognizance, it is void: 1 Mo. R., p. 546; State vs. Walker & Emons, 4 Z R., p. 505; 2 H. Black., p. 418; 2 Dal., p 307.
    V. Offices of mayor and justice of the peace are incompatible at common law, and Powell having accepted the office of mayoralty, it avoids the office of justice of peace — he cannot act under b*th: 5 Bac. ab. p. 204, Qe.; 2 Z R., p. 85; 4 Inst. 100, 105, 110.
    Lamb, for the State.
    I. The demurrer to the scire facias was properly overruled. The mayor of the city of St. Charles had jurisdiction of the subject matter. See Rev. C., p.854, sec. 1, in connection with sec. 1 of p. 857, and the court will presume that the jurisdiction of the mayor when given over a subject matter, was rightfully exercised in other respects, until the contrary is shown. As to the jurisdiction of the mayor of the city of St. Charles, see acts of 3848-9, p. 268.
    II. It was necessary for the defendant’s name to appear in the body of the bend, a blank being left for the name in the body, and the name signed at the bottom of the allegation, was a sufficient signing to make defendant liable.
    
      It fully appear? from the whole of the allegation, who were the piincipa's ami who were the security, and the acknowledgment of the ebligee was made in the proper form.
    Ilf. ft is submitted, that the question, as to whether the obligation was properly executed, cannot be tailed by demurrer, but the same should have been done by the plea of turn oil f-joimn.
    
    IV. The demturer admit? «H the facts, as set forth in the sere. facias, to be true, and ¡Í is submitted that there are sufficient facts set forth in the scire fate ins for the court to enter judgment upon. The •“■Vi:fatic'.t.s expressly charges that defendant executed the obligation assccu-I Jt.V.
    Lackland, for the State.
    The scire fasciae alleges that the defendant entered into the recognizance. This allegation, hi ¡his regard, makes the scire fast das sufficient. If this allegation be denied by plea, it must be proven by the Slate, and in default of such proof, defendant must he acquitted. But this cannot be reach.d hy demturer,because it would be in effect deciding that a demurrer would He in a case of variance between the allegations in a sc re facias and the proof to sustain it. If the recognizance wts not the recognizance of the defendant he should have picad non est fandnm; or, he should have objected to the reading of the recognizance in support of the allegation in the sctVe facias on the -grounds of a variance.
    But the defendant files his demurrer to the scire faacias, and thus admits the alleg-tion contained therein. The demurrer is overruled; he asks no leave to plead, and makes no objections to the ptoceedings except by his demurrer. If the court are of opinion that the scire faacias is sufficient, and that that is the only [question] raised in this cause, the judgment ought to be affirmed.
    But suppose the court he of opinion, that the demurrer raises the question of the validity rtf the recognizance. We do not think the omission of the name of the surety, in the body of the recognizance, a fatal defect. We are aware that the 'opinion of this court; delivered by Judge Scott, in the case of Adam ef al. vs. Wilson, 10 1M0, R., 341, is against this proposition. In this opinion Judge Scott refers to 1st Tucker’s Com., p. 275 (which by the way is a mistake for2<;5.) where may be found the pa-sage quoted in said opinion. This may, we think, be regarded as the mere dictum of Mr. Tucker. In connection with this text, Mr. Tucker referred to 2 Mnnford, 38 and 298, hut for [what] purpose he refers to them we are not able to tell, for they do not seem to support the text. But supposingthey did snpportthe tire doctrine is virtually overruled in Bartley vs. Yeats, 2 Hen. & Munf. 398, where the revti.se is laid down as the law in such a manner as to lead us to believe that it was never thought of by the court as being otherwise.
    fi is believed that the doctrine, establishing the principle, that where several sign and seal a bond, and th.e names of some only of them appear in the body of the bond, all are equally hound, is applicable to this case. Indeed, Judge Scott fells us that it would seem, that the principle governing (he one, would apply to the other. *
    
    UV refer the court to some authority snsfaningthe proposition:
    “Though a bond be made in the singular number, in the body, yet if several sign it, all are bound.”
    Words of a bond: “On or before, &.C.. I promise to pay, &c., Daniel Huff, &c. Signed,
    For Tweph Iles'ep, Thomas Ram-.ey, Jenkins Withers, J. E. Summers.” Thb is the bond of all. Martin vs. Dortch, 1 Stenald, 479.
    A bond in these words, “We, A. B. and C. D., are jointly and severally bound, &c,” and signed and sealed by A. B.. C. P. and E. F., is good against E F.: Campbell vs. Campbell, Bcayton's Reps 38.
    “ Although the names of the sureties are not in any part of the body of the bond, but blank rdneei are eft f ir.thvn. entitled, ye! if they sign, sea! and deliver it as their bond:” Stone vs, Y/Hsqn, 4 McCord, 203,
    
      “‘To constitute the boml the deed of the defendant, it is necessary to prove ihat hi sealed and delivered it as his deed.” Joyner vs. Cooper, 2 Bailey 199’ Bac. ah. t:t. ob'egalvm, <■
    
    An appeal bond is valid though the nameofthe surety bo not mentioned in the body 04: executing a bond is bound by it, though he be not named it; the body of it. it is enough in any contract, that the intent of the parties clearly appears.” Expatte Fulton. 7 Cow. 4S‘-I,
    “A bond executed by a surety before Ills name was insetted in the body of fh* bond, h;s name being altenvards inserted, when he was not piesent, was held good against him.” Smith vs. Croaker, 5 Mass. 537, ‡
    '“Though there be a total blank for the name of the surety i-» tits’oMigttnrv pait of the ■bond, yet híspame being mentioned in the recital of the conditions, an I having signed and sealed it, it was held sufficient to charge.”
    Bond — ‘“Know all men by these presents that we, Joshua Bartlett and-are held and firmly bound unto William Yeats & Co.” an 1 signed and sealed by
    josliua BAr.n.EYr. i.. s.
    JAM KS FERGUSON, r.. s.
    Signed, sealed, and delivered in the presence of --,” is binding upon Jam-s Ferguson: 1 Hum. &. Mum. 394.
    “A forthcoming bond appearing in other respects to bo in proper form ought not to be. (¡cashed on the grounds that in the obligatory, or penal part thereof, a blank is left for the names of the obligors.” Beal vs. Wilson, 4 Mutif 3-0.
    ‘•The name of the obligors being omitttd in the body of the bond, i, no objection to its validity.” Vanhook vs. Burnett, 4 Dev. 272.
    ‘“A writing obligatory, binds all who sign it as obligors, as ivell those not named i-t tile body of the bond, as those who are.” Wakey vs. Blakey, 2 Dana. 4(i3.
    It is not necessary that the name of the obligor appear in the body of the bond, if it lie signed . nd sealed by him it binds him.” Pequawkett vs. Mather, 7 N. H.,23.
    “April 4, A. D. 1832; I do hereby certify that I will go security for John Patterson, that the judgments in favor of John Baymiiler against the said-John Paite:son, that the will no I iniuie Henry Shenberger, &.c. In witness whereof we have hereunto set out hands the day and year above writ eo.
    JOHN PATTERSO".
    ANTHONY KINáEi.yV’
    This is the bond of Arthur Kinstly, althought his name does not tips ear in the body of it* Kinsely vs.'Shcnberger, 7 Watts, 193.
    It seems to us, that the above authorities support beyond ai! q.ie-tio.'i. I vn propositions, fo-wit:
    1st. That the omission of the name of the principal or seen; it/ in tbj limy of a bon::, i« «o fata! defect if the bond be signed and sealed and delivered as hi.. bona , by such principal or security, although the bond may contain the names of other pnncip tl. or .-.ecmities in its body.
    2nd. That by signing, sealing and delivering the bond, the obligor mako.i it his act and d.v 1 and it i-i therefore binding upon him.
    The same rule seems to .have been laid down by the courts in icgard to recognizance.-
    ‘•A recognizance of special bail endorsed on the writ in the singular number, and signed by three, is binding on all, although the names of all are not inserted i i the body of ¡lie recognizance.” Bruce vs. Uolgum, 2 Letteil, Ky., 2s4v
    ‘•Wlwtea recognizance, taken before a justice of the peace, has been siguej ami g.tal-d by the principal and Ins secilri-y, its validity is not effec.ed by Hie failure to iuse t .1: Míame nt’ the latter in a blank left for that purpose in the body of it.” Badger & Clayton v>. State, 5 Ala., 21.
    The certificate of the mayor states that it was taken, signed and acknowledged Dslare him oi. the23d May, &c. This, we take it, shows that the recognizance was the act and deed of tb defendant, as well as the others, whose names appear in the recognizance. _
    
      The recognizance need not state that the offence was committed in the city of St. Charles. It should only appear that the recognizance was taken within the city of St. Charles, where the mayor had jurisdiction.
    The mayor had authority to take the recognizance by virtue of sec. J of Ch., 1 aud2 of Prac. and Proc. in criminal cases, by virtue of his office, as mayor; and by sec. 6 art. 3 of act incorporating the city of St. Charles, the mayor is made ex-officio, a justice of the peace j acts ’48-9, p. 269. ^
    The mayor, therefore, had authority to take the recognizance. The recognizance state» the offence fully. The defendant signed and acknowledged it tobe his deed,and is. then binding upon him.
   Ryland, J.,

delivered the opinion of the court.

From the above statement, the questions arising in this ease, are principally two. One on the recognizance. The other the power and authority of the mayor of the city of St. Charles to take the recognizance of persons charged criminally before that office.

The recognizance has been considered similar to an obligation or bond, and liable to the same rales and principles as bonds are, in regard to their effect.

This court has lately in two eases overruled its former decision made in the case of Adams et als. vs. Wilson, 10 Mo. Rep. 341. “So far as regards the insertion of the names of the obligors in the body of such instruments.”

We have after mature reflection and investigation become satisfied, that our present views are more consonant with the decisions of the courts^ of the United States on this subject, than the decision of the case of Adams et als. vs. Wilson. The authorities cited by judge Tucker, upon whose commentaries the first decision appears mainly to rest do not support the judge. This point has-been investigated by the counsel for the State and the authorities cited in his brief will pay am-nly for the trouble and time spent in their perusal.

Without therefore, stopping here to decide whether the demurrer of the defendant can reach back beyond the scire facias so as to embrace ¿defect in the recognizance itself, we will settle once more this question, about 'inserting the names of principals.or securities in bonds and recognizances in the bodies of such instruments,by stating that we consider the omission to make such insertion no way important;, the bonds being just as good and binding without such names being on the face of the bonds as with them. This point therefore we rule for the State,

The second’point, we consider settled by the statute incorporating the city of St. Charles. That expressly gives jurisdiction and power in such matters to the mayor — ánd we are not prepared to say, that the legislature can not confer such power on the mayor. Indeed we are unable to find any prohibition or restraint upon the legislature in thus using its power and authority.

We see nothing then requiring the interference of this court, with the judgment of the court below.

It is therefore affirmed.  