5 Mo. 513 | Mo. | 1839
delivered the opinion of the court.
Flournoy sued Andrews before a justice of the peace and had judgment, from which Andrews appealed to the circuit court, with one Ross as security in his appeal bond. On the trial in the circuit court, Flournoy i ead in evidence the bond of Andrews, on which he had recovered before the justice, and there rested his case. The defendant (Andrews,) then proved that the consideration of the bond sued’on, was certain lumber furnished by plaintiff to one George C. Hartt. It was also in evidence that the defendant., before the bond was given, went to Hartt and informed him that Flournoy wanted security, and that Hartt replied, he would give none; that shortly after, without the knowledge of Hartt, plaintiff sent the bond (which was written as joint and several bonds usually are — “we, or either of us,” &c., and with .two seals appended,) by his clerk to the defendant for his signature, remarking that he would get Hartt to sign it, and that defendant accordingly signed it. It was also proved that plaintiff sent the bond to Hartt for his signature, and one witness stated that he understood from the conversation of the parties, that defendant was Iiartt’s security.
It also appears, from the bill of exceptions, that, on the trial in the circuit court, the defendant offered one William C. Ross as a witness, who admitted himself to be the individual bound in the appeal bond with defendant, and who was therefore objected to by plaintiff as incompetent. Upon the motion of the defendant, the court ordered the appeal bond to-be cancelled, and a new bond, with approved security, was given, and Ross was then admitted,to testify.
After the termination of the evidence, the court, at the instance of the plaintiff, instructed the jury, that the-circumstance, that the consideration of the bond went to George C. Hartt, did not release the defendant from his liability on the bond. The court, also, at the Instance
The errors assigned by the appellant are, first, that the court erred in admitting Ross to testify; and, second, that the court erred in giving the instruction asked by defendant.
1. That Ross was a competent witness after the cancellation of the appeal bond, there can be no doubt. The cancellation of the bond rendered him disinterested, and the only question that could arise, would be as to the power of the court to have the bond cancelled and a new one substituted. Of this the court entertains no doubt. No inconvenience can be perceived as likely to result from such a practice; but it is obviously for the furtherance of justice. The courts of England have uniformly pursued this course in relation to bail, and I know nothing m the situation of the obligor m an appeal bond to distinguish his case from that of bail — Tidd’s Practice, 264; 2 Stark, on Ev. 140.
2. The instruction given by the court, at the instance of the defendant, is also objected to as not justified by the evidence. There is no dispute as to the correctness of the abstract proposition laid down by the court; that if it was an understanding and agreement between the obligor and obligee, that the obligor only signed as security, and the obligee failed to get the signature of the principal, the bond was void as to the security. This is well settled —10 Mass. Rep. 445; 4 Cranch, 219. Nor do I understand it to be necessary, m order to justify a court in giving an instruction, predicated on a supposed state of facts, that the court itself should be entirely satisfied of the existence of the facts upon which the instructions are founded. If there be any evidence, from which the jury may infer a certain state of facts, the court does not exceed its province in declaring as to them the legal conclusions thereon. There was certainly some evidence in this case of an understanding between the parties, that defendant was to sign only as security, and the court therefore properly gave the instruction asked for by defendant. Ihe judgment of the court below is affirmed, Judge Tompkins concurring in this opinion.