
    PYNES et al. vs. THE STATE.
    [APPEAL FROM JUDGMENT RENDERED BY CIRCUIT COURT, SUPERSEDING JUDGMENT RENDERED ON FORFEITED UNDERTAKING OF BAIL, AND RESTRAINING COLLECTION OF EXECUTION, &C.]
    1. Petition for rehearing; when judgment of circuit court in relation tot will not he disturbed. — A judgment on a petition for rehearing will not be reversed because the petition is informal, unless its deficiencies have been assailed by demurrer or plea in the court below.
    2. Undertaking of hail; what sufficient excuse for default. — The death of the accused, who is the principal obligor in an undertaking of bail, before the forfeiture of the obligation by default of the accused to appear, is sufficient to excuse him for such default.
    2. Same; lohat excuses sureties —In such a case, what excuses the principal obligor, excuses the sureties also. . The law does not require an impossibility of them — that is, to make a dead man appear in court and excuse his default.
    Appeal from Circuit Court of Henry.
    Tried before Hon. J. McCaleb Wiley.
    The opinion states the facts.
    
      John W. A. Saneord, Attorney-General, for appellant.
    W. C. Oates, contra.
    
   PETEBS, J.

This is an application to a circuit judge for a rehearing. On April 20th, 1868, the State of Alabama, for the use of Henry county, obtained judgment final against Pynes and others, on a forfeited undertaking of bail, for the sum of five hundred dollars, and costs of suit. Execution was issued on this judgment. On July the 21th, 1868, within four months after the rendition of the above judgment, upon the petition of Pynes and the other defendants in said judgment, the honorable judge of the 8th judicial circuit of this State, granted an order to supersede this execution on said judgment and to restrain the collection of the same, and for a rehearing on said judgment, under the statute in such case made and provided. The petition for rehearing showed that the accused in said undertaking of bail, who was the principal obligor, was dead before the rendition of the judgment nisi upon which said final judgment was rendered. There was no demurrer or objection to the petition for rehearing on said final judgment, and upon the hearing of the same, both parties being in court by their attorneys, the court gave judgment that the supersedeas previously granted as aforesaid “ be made perpetual, and that the State of Alabama be forever restrained from enforcing the execution in this case on a judgment rendered at'the spring term, 1868, for the sum of five hundred dollars; and that the defendants in this sci.fa. pay the costs, as a condition precedent, for which execution may issue.” There was no bill of exceptions taken and signed on said trial of said rehearing on said petition, and no objection of any kind reserved upon the record. Prom this judgment, rendered as abovesaid upon said rehearing, the State appeals to this court, and here assigns for error — 1st, The order directing the supersedeas;” 2d, “The judgment perpetuating the supersedeas.”

There can be no doubt that the learned judge of the circuit court had authority to make the necessary order for the supersedeas, and to allow the rehearing. This authority is given by the Code. — Revised Code, §§ 2814, 2815, 2816, 2818. Then, as the court below had jurisdiction to grant the relief asked, this court will not presume that it proceeded erroneously, unless this is apparent from some objection or exception reserved in the record, on the trial below, by plea or by bill of exceptions. But nothing, of this sort was done on the trial below.

The first assignment of error questions the sufficiency of the causes, set forth in the petition for the rehearing. If the petition was sufficient, then the court did not err in making the order for supersedeas. Such an objection should have been made by demurrer to the petition in the court below. It can not be made in this court for the first time. — Bank of Mobile v. Brown, 42 Ala. 108, 112; Stewart v. Goode et al., 29 Ala. 476.

The second assignment of error is equally untenable. The cause was submitted to the decision of the judge without the intervention of a jury. In such a case, the judgment will not be disturbed, unless error is affirmatively shown. — Ethridge v. Malempre, 18 Ala. Rep. 565; Barnes v. Mayor and Aldermen of Mobile, 19 Ala. 707.

The death of the accused before the undertaking of bail is a sufficient cause for his default to appear according to its stipulations. It would be impossible for a person who is dead to appear in court, and the law does not require a party to do an impossible thing. The death of the accused would discharge him from a compliance with the obligation of bail. And what discharges the principal, also discharges the sureties. — Coke, Litt. 231, a; 1 Bouv. Inst. n, 851; Whetstone el al. v. Motley, at January term, 1871. Here the relief asked in the petition, was based on the fact that the accused, who was the principal in the obligation of bail, was dead before the forfeiture. This was sufficient to sustain the judgment of the court below, although very informally alleged. — Dolhard v. Teague, 41 Ala. 583.

Let the judgment of the court below be affirmed.  