ROBERT S. WILLIAMS, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Raney, C. J.

The act of January 6, 1848, McClellan’s Digest, 439-40, provides that any person convicted of a criminal offence and sentenced to pay a fine, shall have the right, on being taken into custody by the proper officer of the court, or prior to such arrest, to give bail or security for the payment of such fine and the costs of prosecution adjudged against him. Such bail or security shall be by bond, conditioned as above, and be executed by the defendant and one or more good and responsible persons, to be approved by the court rendering the judgment if in session at the time, or by the sheriff or other officer charged with the execution of the j udgment. It is to be payable tc the Q-overnor in ninety days from its date, and if not paid by the expiration of this time, the sheriff or other officer shall endorse thereon that default has been made, and sign the endorsement and file the bond with the clerk of the court in which the judgment was rendered, and the clerk shall forthwith issue execution for the amount of such fine and costs against such “ security or bail,” as if there had been judgment at law on such bond, and the same proceedings shall be had thereon as in cases of other executions, and the person convicted shall be liable to be proceeded against as if no such bond had been given until the same shall be fully paid and satisfied.

It is evident from the above terms of the statute that no execution is to be issued under it against the person convicted or the principal in the bond on the return of it by the sherifi after default, but only against the surety or bail, and for this reason probably the second ground of illegality stated in the affidavit has been practically abandoned before this court. So. Ex. Co. vs. Van Meter, 17 Fla., 873.

The argument of appellant in support of his first ground is that in the absence of a bond there was no basis for the summary process of execution comtemplated by the stat _ ute.

It is certain that the instrument executed by Bryant and Williams is not a bond. In the case of the United States vs. Linn, 15 Peters, 290, where, as here, the instrument had no seal, the Supreme Court held that it was not a bond, and that as the act ot Congress directed the security of the officer, a receiver of public moneys, tobe taken by bond, it was not in form the instrument required by the act, though binding as a simple contract at common law. An obligation or bond, says Blackstone’s Commentaries, Book II, p. 840, is a deed whereby the obligor obliges himself, his heirs, executors or administrators, to pay a certain sum of money at a day appointed. A deed, says the same authority, is a writing sealed and delivered by the parties. Ibid, p.

295. Although in the body of a writing it is said that the parties have set their hands and seals, it is not a bond unless it has been actually sealed and delivered. Taylor vs. Glasser, 2 S. & R., 502; Deming vs. Bullitt, 1 Blackf., 241. Our statute has given a scrawl the effect of a seal, section 87, p. 832 McClellan’s Digest, but this instrument has nothing purporting to be either a scrawl or a common law seal, or anything intended for either. As then it is not a bond, it is not the instrument contemplated by the statute, and not being such, it, according to the authorities, did not authorize, and will not sustain the summary remedy provided by the act in case ot a default, to enforce the payment of a bond taken and duly returned under it. In Skinner vs. McCarty, 2 Porter, 19, upon a certiorari to a judgment rendered by a Justice of the Peace, there was a trial in the Count}” Court and verdict against Skinner, the plaintiff in certiorari, ánd judgment was rendered under the statute also against his sureties on the instrument taken to bring up such proceedings, it having all the requisites of a certiorari bond except seals to the signatures of the obligors. The. statute gave to the bond required in such proceedings the force and effect, ot a judgment. against all the obligors, and authorized execution to be issued against, them. It was held by the Supreme Court 0f that State that the sealing is a distinct and substantive requisite to constitute a perfect bond, and that without it the instrument was not binding on the parties as a bond ; and the judgment of the County Court was reversed and a judgment rendered simply against Skinner, the original defendant.

In Howard vs. Brown, 21 Maine, 385, where the statute required that á poor debtor’s bond should be executed by the debtor as well as the sureties, it was held that a bond not executed by the debtor was not good as a statutory bond, though valid and enforceable as a common law bond.

In State ex rel. vs. City Council, 74 Ala., 226, where the decree appealed from was affirmed, the appeal bond was by its terms payable to the register instead of the appellee, and it was held that no judgment could be rendered on the appeal against the sureties. “ Being made expressly payable to the register,” says the opinion, “ it is not a statutory bond ; and, hence, if there be any recourse against the sureties, it must be sought in an action on the bond.” P. 232, Tarver vs. Nance, 5 Ala., 712.

The following authorities sustain and illustrate the principle upon which we rely, that under statutes of the kind under consideration there must be a statutory instrument to support the special remedy they authorize. Moody vs. Hoe & Co., 22 Fla., 309; Sewell vs. Franklin, 2 Ala., 493; Brown vs. Levins, 6 Porter, 414; Curry vs. Barclay, 3 Ala., 484; Butler vs. O’Brien, 3 Ala., 316; State ex rel. vs. City Council, 74 Ala., 226; Miller vs. Vaugh, 78 Ala., 323; Earle vs. Dobson, 1 Jones (Law), 515; Richardson vs. Bartley, 2 B. Mon., 328; Poston vs. Southern, 7 B. Mon., 289; The Justices vs. Smith, 2 J. J. Mar., 472; Morse vs. Hodson, 5 Mass., 314; Winthrop vs. Dockendorff, 3 Maine, 156; Pease vs. Norton, 6 Maine, 229; Branch vs. Branch, 6 Fla., 314; United States vs. Linn., 15 Peters, 290.

The record shows that the bond was “ taken and ap proved in open court,” by the Circuit Judge, by whom alone it could have been taken and approved while the court was in session. This approval was error, and though of course it would not have been given had the absence of the seal been noticed by the judge, still it gave no validity to the paper as a bond. The statute authorizes an execution to be issued by the clerk upon due return of the bond, and when there is no bond the writ cannot be issued “ as if there had been a judgment at law on said bond.” The existence of a bond is indispensable to the power of the clerk in the premises, and the approval or acceptance of any other kind of an instrument will not create the power. As the statute does not authorize the discharge of the prisoner, pending the term of the court, until the bond has been approved by the Judge, a bond cannot be said to be given under it, pending a term, until it has been so approved. The fact that Williams informed the Judge that he had given the bond required by law does not, considering the patent character of' the defect and the approval of the instrument by the Judge, show'that the omission of the seal was intentional or fraudulent, or that Williams did not intend to give a bond when he made the proposition for a change of the sentence, detailed in the judgment, even assuming that the fraud would estop Williams from taking advantage of the absence of a seal, a point upon which we intimate no opinion. The employment of Bryant as a tenant on Williams’ plantation is a matter solely between those parties, and one with which the State had no connection, and it is not shown to have influenced the approval of the bond.

The conduct of Williams set out in the judgment appealed from did not supply the place of a bond, and does not estop Williams from resisting a proceeding for which in law there was no authority. His conduct is not before us in any other aspect.

The case will be remanded to the Circuit Court with directions to set aside the execution as illegal.