This is a proceeding to recover of defend
“ S. Jetmohe,
“ W. McMahan,
“ J. N. Stockton,
“ J. T. Hamm.”
Approved this 19th day of September, 1874.
JOHN L. Trapp, Chairman Board.
E. A. Williams,
Wm. P. Greenlee.
The 6th section, article 5, of the township organization act, which act, at the time the above instrument was executed, was in force in Johnson county, provides that every person chosen or appointed to the office of constable before he enters upon the duties of his office * * shall execute, with two or more securities, an instrument in writing to the township trustee, to be approved by the township board of directors, in which said constable and his securities shall jointly and severally agree to pay to
It is a clear requirement of the statute quoted, that Hazleton, the constable, should execute such an instrument in writing as is designated in section 6, supra. The writing offered in evidence and on which defendant is sought to be made liable, does not show a compliance-with this requirement, but on the contrary does show that never having been signed by the constable, it was never executed by him. It is, however, insisted that the writing though never executed by the principal, is, nevertheless, binding on defendant who did execute it as security. The received doctrine is, that securities who execute a writing as such only, can show in discharge of their liability, that their principal never was bound, and no can perceive no reason why that principle cannot be invoked in this case. This question was directly passed upon in the case of Ward v. Washburn, 2 Pick. 21, which was a proceeding against the securities of an administrator on an administrator’s bond. The bond was not signed by the administrator, and because it was not the court held that the sureties who had signed it were not bound. In the case of Bean v. Parker, 17 Mass.
Judgment affirmed,