The opinion of the court was delivered by
This bond was prepared for six obligors, and is executed by only five of them; yet we cannot, therefore, infer that it is incomplete and not binding on those who did execute it. It contains an admission that excludes such an inference, even if it were not excluded by the evidence of delivery.
The bond declares that the plaintiff below had become surety for another person, on the promise of the six persons named in it, that they would indemnify him. This is an admission by the five who executed the bond, that they were jointly bound to indemnify the plaintiff; and though they do allege that another person agreed to become bound with them, yet, when we find their bond in the hands of the plaintiff, it is impossible to imply that it was not intended to bind them to their admitted duty.
The refusal of one of the six to join in the bond did not discharge the others from their promise. And when the five perform their promise by delivering their bond, it would be very wrong to declare the bond to be mere waste paper in the hands of the obligee. This would be a most empty performance. '
Judgment affirmed.