"State of Indiana, Knox County, City of Vincennes—ss.: "We, the undersigned, hereby acknowledge ourselves, jointly and severally, bound and indebted to the city of Vincennes in the sum of one hundred dollars, if Charles H. Soudriette shall fail to appear before the mayor of said city, at his office therein, on the twenty-second day of August, 1885, at 8 o'clock A. M., to answer the charge of having violated an ordinance of said city, and abide the order of said court. "Witness our hands, this twenty-first day of August, 1885. [Signed] "Approved: JOHN WILHELM, Mayor." "C. H. SOUDRIETTE. And the state alleged that such recognizance was then and there taken and duly approved by said mayor; that thereupon, on the twenty-second day of August, 1885, the said Charles H. Soudriette did not appear in discharge of such recognizance, but made default therein, and failed to appear or respond to the call of the court, and that, after having been called, and failing to appear or respond to such call, the recognizance was duly declared forfeited to the state of Indiana; and that such forfeiture, taken as aforesaid, was recorded on the back of said bond, in the words and figures following, to-wit: "State of Indiana, City of Vincennes-ss.: "I, John Wilhelm, do hereby certify that the within-named Charles Soudriette did not appear in discharge of his recognizance, and abide the judgment of the court, as was required by the terms of the within bond. Thereupon said Soudriette was thrice called, but came not and wholly defaulted. Thereupon, his recognizance was declared forfeited. August 22, 1885. [Signed] JOHN WILHELM, Mayor.' And the state further said that there was a clerical error in the making of said bond, in this: that from such bond, as drawn, it appeared that the appellees were bound unto the city of Vincennes to answer the charge of having violated a city ordinance; that such bond should have read, "Bound unto the state of Indiana to answer the charge of having obtained goods under false pretenses," as that was really the charge the appellee Charles H. Soudriette was arrested upon, and the charge for which such bond was given for his appearance before said mayor, at said time, "whereby a right of action has accrued unto the state of Indiana on said bond; and it prays judgment in the sum of one hundred dollars." From the foregoing summary of the facts stated in the state's complaint, in the cause now before us, it is manifest that the question for our decision, as the cause is now here presented, may be thus stated: May the state, upon the facts stated and admitted to be true, recover upon the forfeited recognizance set out in the complaint, notwithstanding the singular and extensive "clerical errors" therein? Under the jeofail provisions of our Civil Code, we are of opinion that this question must be answered in the affirmative. Appellee's counsel has not seen proper to favor us with any brief or argument in support of the ruling of the circuit court; and we have not been advised, in any mode, of the grounds upon which that learned court based its ruling. Of course, the case under consideration is a civil action, although it is prosecuted by and in the name of the state of Indiana as the plaintiff therein. In sec tion 1221, Rev. St. 1881, which is substantially and almost literally a re-enactment of section 790 of the Civil Code of 1852, (2 Rev. St. 1876, p. 311,) it is provided as follows: "No official bond entered into by any officer, nor any bond, recognizance, or written undertaking taken by any officer, in the discharge of the duties of his office, shall be void for want of form or substance or recital or condition, nor the principal or surety be discharged; but the principal and surety shall be bound by such bond, recognizance, or written undertaking to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance. In all actions on a defective bond, recognizance, or written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance, or written undertaking were perfect in all respects. In section 141 of the Criminal Code of 1881, which was approved 12 days after the approval of the Civil Code of 1881, and must be regarded, under our decisions, as the later expression of the legislative will, although both of such Codes took effect and became laws on the same nineteenth day of September, 1881, which section 141 is section 1715, Rev. St. 1881, it is provided as follows: "No recognizance, undertaking, or bond taken in any criminal proceeding shall be void for want of form or of substance, or for omission of any recital or condition, or because the same was entered into on Sunday, nor shall the principal or surety be discharged; but the principal and surety shall be bound by such recog nizance, undertaking, or bond to the full extent contemplated by the law requir ing the same, and the sureties to the amount specified in such recognizance, undertaking, or bond. And no action upon such recognizance, undertaking, or bond shall be defeated for any want of form or substance, or for the omission of any recital or condition, or because the same was entered into on Sunday, or for the neglect of the clerk to indorse or record it, but the recognizors shall be bound thereby, to the full extent specified therein. A recognizance may be recorded after execution has been awarded." This section of the Criminal Code was manifestly constructed from or out of section 1221, above quoted, or section 790 of the Civil Code of 1852; and some of its provisions seem to be out of place, to some extent at least, in a Code regulating "proceedings in criminal cases." It may be said, however, that the provisions of sections 1221 and 1715, above quoted, are so nearly identical with the provisions of section 790 of the Civil Code of 1852 that the decisions of this court, construing and applying the provisions of the latter section to cases somewhat similar to the one at bar, may well be regarded as authorities in determining the question of the sufficiency of the facts averred in the state's complaint herein, to constitute a cause of action. In Hawes v. Pritchard, 71 Ind. 166, after quoting some of the provisions of section 790 of the Code of 1852, the court said: "The effect of these provisions of section 790 of the Code, upon informal or defective bonds, recognizances, or written undertakings taken by an officer in the discharge of the duties of his office has of late been the subject of full consideration by this court in a number of cases, and it has been uniformly held, as we now hold, that the effect of these statutory provisions is to legalize and validate the bond, recognizance, or written undertaking in question, and make of it just such an instrument as was contemplated and called for by the terms of the statute under which it appeared to have been executed." Railsback v. Greve, 58 Ind. 72; Miller v. McAllister, 59 Ind. 491; Turner v. State, 66 Ind. 210; Graham v. State, 66 Ind. 386; State v. Wyant, 67 Ind. 25. To the same effect, substantially, there are many more recent decisions of this court. Miller v. O'Reilly, 84 Ind. 168; State v. Britton, 102 Ind. 214, S. C. 1 N. E. Rep. 617, and the cases there cited. Applying the statutory provisions above quoted, construed as they have been by the decisions of this court above cited, to the complaint in the case in hand, we are of opinion that the facts stated in such complaint, and admitted to be true, as the case is now presented, are sufficient to constitute a cause of action in the state's favor upon the recognizance in suit, and to withstand the appellee's demurrer. The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings. 1. TRIAL-INSTRUCTIONS-CONSTRUED AS A WHOLE. Instructions are to be construed together, and especially is this true of single sentences in the same instruction; so that if the entire instruction states the law properly there will be no reversal, although a single sentence, if detached from its context, might be erroneous. 2. PROMISSORY NOTE EXECUTED ON SUNDAY-WHEN INVALID. Where, in an action against a surety on a promissory note, the surety defends on the ground that it was executed on Sunday, he must show by a fair preponderance of evidence that it was not only signed by him on Sunday, but that it was also delivered to the plaintiff on that day.1 Appeal from Cass circuit court. Dykeman, Wilson & Taber, for appellant. Winfield & Myers for appellee. Howk, J. This was a suit by the appellee, Sarah Kinzie, against the appellant, Conrad, and one John M. Smith. Appellee's complaint counted upon a promissory note for $134.58, executed by appellant and his co-defendant, Smith, dated January 25, 1879, and payable one day after date to appellee, by her then name of Sarah Skinner. Defendant Smith was defaulted and disappeared from the case. Appellant separately answered in six paragraphs, of which the first was a general denial of the complaint, and each of the other paragraphs stated a special defense. Appellee replied by a general denial The issues joined were tried by a jury, and a general verdict was returned for appellee. With their general verdict the jury also returned into court their special findings on particular questions of fact submitted to them by appellant, under the direction of the court, in substance as follows: "(1) Was not the note in suit signed by the defendant, Conrad, on the Sabbath day? Answer. Yes. (2) Was not the note in suit delivered by the defendant, Conrad, on the Sabbath day to John M. Smith? A. Yes. (3) Was not the note in suit delivered by Richard Skinner to the plaintiff on Sunday? A. No. (4) Is not the defendant, Conrad, surety on the note in suit for John M. Smith? A. 1 See note at end of case. " Yes. (5) After defendant, Conrad, signed the note in suit, to whom did he deliver it and on what day of the week? A. To John M. Smith, on the Sabbath day. Over appellant's motions for a new trial and in arrest the court rendered judgment for appellee and against the appellant, on the general verdict of the jury. A number of errors are assigned here by the appellant, but his counsel have expressly limited their argument to the consideration of the alleged error of the court in overruling his motion for a new trial. The other errors assigned must, therefore, be considered as waived. The only cause for a new trial insisted upon here by appellant's counsel is an alleged error of law occurring at the trial in giving the jury a certain instruction of the court's own motion. This instruction reads as follows: "To this complaint the defendant has answered by several paragraphs. First, he denies the execution of the note; second, he says he has paid it; third, that it was without consideration. In the fourth, fifth, and sixth paragraphs he sets up against the note as a perfect defense that the note was executed on Sunday by himself, W. T. Conrad, as surety for John M. Smith, and it was delivered by him on that day to his co-defendant, and that is as far as he has any knowledge of the note, and that he had received no consideration for the note. I am inclined to hold, upon that subject, the law to be as follows: That, before the defendant can successfully make out that kind of a defense he should have pleaded in writing, as well as proved by a fair preponderance of the evidence, that he not only executed the note on Sunday, but that it was delivered and accepted by the plaintiff on Sunday. I hold that the decisions of the supreme court, that you have heard quoted here, are not now the law in this state, but there is a later decision which governs, and, as far as this case is concerned, the law as the court gives you, you must use and be governed by. The defendant, before he can avail himself of or properly make out the defenses to prevent a recovery on the note at the hands of the plaintiff, either upon the fourth, fifth, or sixth paragraph of answer, must have proven by fair preponderance of the evidence that this particular note in suit was executed by him upon Sunday, the first day of the week as it is called in the statute, and that it was delivered by him upon that day, or some one representing him, to the plaintiff in this case. If the plaintiff then accepted the note, knowing these facts, then she stands in equal respect of the law as being guilty of a violation of the criminal statutes of this state. It is against the law to do common labor on the Sabbath day, or the first day of the week, commonly called Sunday. It is now decided by our supreme court that if a note is executed upon the Sabbath day, (I mean, by execution, signed,) and it was afterwards delivered upon a Sabbath day, the plaintiff knowing the fact,-delivered to the plaintiff on the Sabbath day, then these facts being proven by a fair preponderance of the evidence, the plaintiff could not recover in the case." The record of this cause contains no other instruction to the jury except the one above quoted; but it is certified in the bill of exceptions that "the court gave to the jury no instruction that could in any degree limit, modify, or change such instruction." In their discussion of the instruction quoted appellant's learned counsel say: "We think this instruction is clearly bad, for the following reasons: (1) It misstates appellant's sixth answer; (2) it invades the province of the jury, and gives them to infer that certain necessary proof has not been made; (3) it requires proof of knowledge in the appellee of the signing and delivery of the note on Sunday; (4) the court directs the attention of the jury pointedly to certain decisions of the supreme court, to the prejudice and injury of the appellant. We will consider and pass upon these objections to the instruction quoted in their enumerated order. In common fairness to the learned judge who presided at the trial of this cause it ought to be premised, we think, that the record fails to show any request by or on behalf of either party that the court should instruct the jury in writing. It is manifest from the phraseology and diction of the instruction quoted that the court instructed the jury orally, and that the instruction, as it appears in the bill of exceptions, was written by the official stenographer of the court, from his short-hand notes, and was not the composition of the presiding judge. 1. It is claimed by appellant's counsel that the court misstated the sixth paragraph of answer. We do not think the court's instruction is fairly open to this objection or criticism. The court did not state at all the sixth paragraph of answer, except as coupled with the fourth and fifth paragraphs of answer. Of these three paragraphs, joined together by a copulative conjunction, the court spoke and gave, we think, a fair statement of appellant's defense as therein stated. If he thought the attention of the jury should be directed to the difference between the sixth paragraph of answer, and the fourth and fifth paragraphs, he should have asked the court for an instruction covering the point. His first objection to the instruction quoted, we think, is untenable and presents no question of law for our decision. 2. It is next claimed by appellant that the court's instruction invaded the province of the jury, and gave them to infer that certain necessary proof had not been made. This claim is founded upon the following excerpt from the instruction quoted: "That, before the defendant can successfully make out that kind of a defense, he should have pleaded in writing, as well as proved by a fair preponderance of the evidence, that he not only executed the note on Sunday, but that it was delivered and accepted by the plaintiff on Sunday." The law, as declared in this extract from the court's instruction, cannot be and is not questioned by appellant's counsel, in their briefs of this cause. The burden of the issues joined on the fourth, fifth, and sixth paragraphs of his answer was unquestionably on the appellant; and to maintain the defense pleaded in such paragraphs it was incumbent on him to prove by a fair preponderance of the evidence that he not only signed the note in suit on Sunday, but that such note was delivered to and accepted by the appellee on Sunday. City of Evansville v. Morris, 87 Ind. 269; Kuhns v. Gates, 92 Ind. 66. It is insisted, however, by appellant's counsel, as we understand them, that by the mood and tense of the verb "should have proved," in connection with the context, the court told the jury, by implication, that appellant had not proved, etc., and thus invaded the province of the jury, who were the exclusive judges of what had or had not been proved. We do not think that the extract quoted from the court's instructions is fairly subject to the construction which counsel seek to place upon it; but if it were, we are of opinion that the entire instruction contains a correct statement of the law, applicable to the case made by the pleadings and evidence. It is unfair to single out and assail a sentence from a long instruction, and the practice has been disapproved and conv.4N.E.no.8-55 |