41 Mich. 225 | Mich. | 1879
This writ of error is brought to reverse judgment entered on a bond given for the good conduct of one Tuttle as an agent of the company. The agreement between Tuttle and the company, together with the bond, were dated respectively July 11, 1871, and those parties appear to have regarded the agreement as taking effect at that time.
It seems that Tuttle was already acting in the same way under a prior agreement and obligation. The present bond was not executed and delivered until August 23, 1871, several weeks after the date expressed. During the intervening period it was not in existence, and plaintiff in error was not then answerable for anything transacted.
The circuit judge ruled that after its delivery the bond operated retrospectively to the date, and bound the plaintiff in error from that time, and he allowed recovery for transactions perfected in that interval. There is no evidence that when plaintiff in error gave the bond he was aware of anything involving present liability under any construction, and the fact that the instrument was ante-dated was not likely, therefore, to attract attention.
The author of the Touchstone observes that “All deeds do take effect from, and therefore have relation to, the time, not of their date, but of their delivery: and Ibis is always presumed to be the time of their date, unless the contrary do appear.” p. 72. In the present case the contrary is admitted, and the presumption spoken of is obviated. Neither the nature of the case nor the surrounding circumstances, justify resort to the fiction allowed sometimes where the recognized demands of justice require that transactions should be connected or brought into given relations.
There are some other questions in the record, but the view taken appears to us to render their discussion unnecessary.
The judgment must be reversed, with costs, and a new trial granted.