Fournier v. Cyr

64 Me. 32 | Me. | 1874

Appleton, C. J.

This is an action of debt to recover the statute penalty for serving a writ as constable without having given bond. The defendant justifies as constable of Madawaska, and avers the giving of the requisite bond.

The defendant gave a bond as constable, the validity of which constitutes the principal question in controversy. The action was referred and the referee has made a special report of the facts upon which the objections to tbe bond are based.

The bond given by the defendant as constable was made out leaving the names of the sureties blank in the body of the bond and also the day of the month of its execution, and it was signed by the principal and sureties while in that condition.

It is not necessary that the names of the obligor and his sureties should appear in the bond. The principal signs and adds principal to his name and the sureties sign specifically as such. The bond being signed and sealed by the defendant and his sureties they are bound thereby. Pequawkett Bridge v. Mathes, 7 N. H., 230; Smith v. Crooker, 5 Mass., 538. “The party executing the bond,” observes Parsons, C. J., “knowing there are blanks in it, to be filled by inserting particular names or things, must be considered as agreeing that the blanks may be thus filled after he has executed the bond.” Though the name of a party is not mentioned in the bond, yet if he sign and seal it, he will be bound. Ex parte Fulton, 7 Cow., 485; Williams v. Greer, 4 Hayw., 239.

The law is well settled, that a bond takes effect from its delivery. The day of delivery may be shown whenever it becomes material. The date of a bond is not essential. It will be valid though there is no date or the date is erroneous. Pierce v. Richardson, 37 N. H., 306.

The bond was signed and sealed before the condition and immediately after the penal part, but that does not affect its validity. Where an obligor signs his name and affixes his seal in the space between the penal part of the bond and the condition thereof, the condition is as much a part of the instrument as if the signature were at the foot of it. Reed v. Drake, 7 Wend., 345.

At the time of the service of the writ against the plaintiff upon which the attachment was made which constitutes the alleged trespass, the bond was in the hands of the selectmen, and the objection is taken that it had not been duly approved. The defendant had done his duty. He had furnished a bond with sufficient sureties and'had delivered it to one of the selectmen. The bond was legally binding upon the parties thereto. The constable is not responsible for the performance by the selectmen of the duties required of them. As the constable does not incur the penalty for serving the writ against the provisions of the statute, we think the service'must be regarded as legal in accordance with the case of Eustis v. Kidder, 26 Maine, 97, which was re-affirmed in Rounds v. Mansfield, 38 Maine, 586.

The mistake of the selectmen in erroneously placing their signatures of approval in the wrong place cannot make the defendant a trespasser, without fault or omission of duty on his part. The erasure of a signature, placed where it should not have been, cannot be regarded as a fraudulent alteration.

The insertion of the names of the principal and his sureties in the blanks for that purpose, if made by the direction and authority of the selectmen was in strict accordance with the understanding of the parties when the bond was executed. Smith v. Crocker, 5 Mass., 538.

If the bond was a valid one, when the defendant served the writ upon which the attachment was,made, he cannot be made a trespasser by what occurred subsequently.

Exceptions overruled.

Cutting, Walton, Babeows, Danforth and Peters, JJ., concurred.