11 Ga. 286 | Ga. | 1852
By the Court.
delivering the opinion.
This was an action of debt brought in Chattooga Superior Court, on a Sheriff’s bond, at the instance of the Governor of the State, for the use of J. S. & L. Bonce, against William Kellett, as principal, and Martin Kellett, John W. Neely, Andrew Mosteller, John P. Evans and James F. Hitchcock, as securities.
The name of Thomas S. Latimer was inserted in the body of the instrument, immediately after the names of William and Martin Kellett, and a blank seal was placed at the end of the signatures of the other securities.
In the judgment of the Court, the name of 'Latimer being inserted in the body of the writing and a seal deft for his name before the defendants executed it, is no evidence,per se, that the defendants did execute it on condition that he, Latimer, should also execute it. It is found in the possession of the obligee; it purports to have been sealed and delivered in the presence of two of the Justices of the Inferior Court, the agents appointed by the law to take the bond; and it was registered on the minutes of the Court. We must therefore say, that there was no evidence to justify the Court in excluding the paper. Phil. on Ev. 364.
In Blume vs. Burrows, (2 Iredell’s L. Rep. 338,) the name of Janies Martin, one of the securities, was inserted in the body of the bond, but was not prefixed to one of the seals left for that purpose; and the exception was taken there as here, and sustained by the Circuit Judge, that the instrument was not the act and deed of the parties who were sued, as it was inchoate and never delivered, which was manifested by Martin’s having failed to sign the bond as an obligor; and the Jury having returned a verdict for the defendants, and a new trial being refused, the plaintiff appealed to the Supreme Court, which held, and we think very properly, that the proof tendered, amounted in law, to a presumption of an absolute sealing and delivery by the defendants, and that the burthen of proof was thrown on the defendants, to shew that the sealed writing had been delivered as an escrow.
In Elliot & Perkins vs. Mayfield and Wife, (4 Ala. Rep. 417,) the name of John Cummings was inserted in the body of the bond, but it was executed by Thomas Cummings; and the objection was, that the bond was void or inchoate on that account. The Court say, “ it is true, that if the plaintiffs in error executed the instrument as an escrow, to be bound only on condition that it was executed by John Cummings, and Thomas Cummings had been afterwards substituted without their consent, it would not be their bond. But for aught this Court can know, the plaintiffs in error may have executed the bond, unconditionally, and not as an escrow, or may have subsequently assented to the substitution of Thomas for John Cummings.”
None of the cases cited on the brief of the defendant’s counsel counteract the doctrine established by these cases. I have examined carefully and critically all the authorities which are supposed to be in conflict with it, in the adjudications which have been made upon this point. Not one of them overthrows this position.
The first is Bean vs. Pailler & French, 17 Mass. Rep, 591. This was a scire facias, to charge the sureties upon a bail bond.
In the subsequent case of Wood vs. Washburn, (2 Pick. Rep. 24,) it was held, upon the authority of Bean vs. Pailler and French, that where an administration bond was not executed by the administrator, the sureties were not liable.
But the objection now under consideration, is not that William Kellett, the principal, did not execute the bond. If so, these precedents would apply.
The next case which I find, is Mary Tindal, administratrix of James Tindal, vs. Henry Bright, (Monroe’s Rep. 103.) The defendants pleaded non est factum, specially accompanied with an affidavit of its truth, as required by the Statute of Alabama and by the Judiciary Act of this State, although none such was filed on the trial in the Court below. The oath appended to the plea, alleged that the instrument on which the action was brought, was signed under the express condition and understanding between the obligee and the party, that it was to be considered valid, and as his act and deed, only in the event that George Buchanan should execute the same as a co-obligor or co-security; otherwise, the same was to be considered as a nullity, and returned to the defendant to be destroyed, which event did not happen; whereupon the writing is not his deed. Upon demurrer, the plea was held to be sufficient; and such, it unquestionably was, according to the opinion of this Court, in Crawford vs. Foster, 6 Ga. Rep. 202.
Again: in King vs. Smith and others, and Porterfield vs. The Same, (2 Leigh’s Rep. 157,) P. agreed to join H. W. as his
If, upon a special plea of non est factum, the Jury find the facts as here stated, we are clear that the Court of Appeals was right in maintaining that the bonds in question were not the deeds of the parties.
Sharp vs. The United States, (4 Watts, 21,) is a case which, from the head-note, as transferred from the original Report to the Digests, seems most to favor the judgment that is under review. It is laid down that a bond taken in pursuance of the Act of Congress, of the 19th day of April, 1816, signed by one surety, and which contained in the body of it the names of two, is not recoverable against the one who signed it, unless it be proved that he who signed it, dispensed with the execution of it by the other.
But by reference to the opinion of the Court, as delivered by Mr. Justice Rogers, it will be found, that the decision is placed expressly upon the peculiar provisions of the Law, which makes it the duty of the Collector of the Revenue to take a bond from the proprietors of stills, with two or more sureties. He says, “ the bond, at the time Alexander Sharp affixed his signature to it, was filled up with the names of the principal and William Laughlin, and contained a reference to the Act of Congress, which requires, as before remarked, a bond with two or more sureties. At the time, therefore, that Alexander Sharp signed the bond, he had a right to believe that it was the intention of all the parties, that the bond was to be taken in strict conformity with the Act of Congress; and that William Laughlin would also execute the bond.”
■John S. Beavers was then introduced and sworn as a witness by the plaintiff. He testified that he was one of the Inferior Court of Chattooga County; that his attestation to the bond was genuine; that the name of Thomas S. Latimer was inserted by him in the body of the bond, at the suggestion of William Kellett, the principal; that the bond was then delivered to Kellett, to procure the signatures of the persons he said would go his security; that there were not more than two of the securities present at any one time when they signed the bond; that there was no understanding between him, as Judge, and the securities, that they were not to be bound-unless Latimer signed — there was nothing said on the subject; that he understood that Latimer was to sign, and would not have agreed to take the bond unless Latimer, or somebody else as good, had signed it; the security, he stated, was not very good at best; he did not know how the bond found its way into the Clerk’s office; Kellett acted, for two' years, as Sheriff of Chattooga County; Latimer did not authorize or direct his name to be inserted in the bond; witness never had any conversation with Latimer in reference to it.
The bond was then read to the Jury; and the fi. fas. which had been placed in the hands of the Sheriff in favor of the Bowies, the usees of the plaintiff, with the officer’s receipt indorsed thereon for the money; also, the rules absolute, passed by the Court, requiring the Sheriff to pay over the amount due on the executions. •
The testimony being closed, the Court charged the Jury as follows:
“ In this case, there are but two points of law that it is necessary that I should refer to your consideration, before you retire to your room: Are the securities to this bond released from liability to the obligee, if representations were made that other responsible individuals would sign it with them, who afterwards*292 failed or refused to do so ? The Court is clear, that if such representations were made, and the securities were influenced by them to sign the bond, then it was an inducement to the contract; and if the other securities did not sign it, then those who did, are released from all liability.
“ But again: was the bond executed and delivered ? If you shall be of the opinion, from the testimony, that the bond was imperfect and inchoate, and left with the Sheriff, the principal obligor, for the purpose of obtaining the signature of Thomas S. Latimer, who never afterwards signed the bond, then it was never executed and could not be delivered until it was executed, and there is no liability incurred by the securities who did sign.
“ It is improper that the Court should intimate, by any expression, what has or has not been proved on this point. It is your exclusive right to say what facts have been proved. The only witness who has testified, was introduced by the plaintiff in the action. He wTas one of the Judges of the .Inferior Court, whose duty it was made by law, to take and approve the bond of the Sheriff of this County. Did the testimony satisfy you that the bond was executed and delivered ? If so, you will say so by your verdict, and find for the plaintiff; but if his testimony should satisfy you that the bond was imperfect and inchoate and remains in that condition to this day, so far as the Court and the rest of the securities are concerned, then you will be compelled to find for the defendants.
“If there was an understanding that Thomas S. Latimer should sign the bond, between the Court and the securities; and the Court gave the bond to Kellett, to carry out that understanding, and he failed to obtain his signature, then the omission leaves the bond imperfect, and until that signature is obtained, after this agreement and understanding is had, there is no liability on the part of the securities — there is no executed contract between the parties.” 1
According to the ruling of this Court, therefore, in Butt vs. Maddox, 7 Ga. Rep. 495; Bethune vs. McCrary, 8 Ga. Rep. 114; and Montgomery vs. Evans, Ib. 178, it was error to "instruct the Jury upon an assumption - of facts which did not exist.
The errors complained of in the requests and refusals to charge, as well as the instructions given, are all embraced in the assignments already discussed and adjudicated.
Let a new trial be awarded.