Wilburn v. Larkin

3 Blackf. 55 | Ind. | 1832

Blackford, J.

This was an action of debt by. Wilburn against Larkin and others, on an appeal-bond. The declaration states, that Jesse F. Wilburn complains of Lionel J. Larkin, (alias L. J. Larking George Crum, James P. Drake, (alias J. P. Drake,) John Knight, Dennis Carroll, and Andrew Burlison, (alias A. II. Burlison,) in custody, &c. of a plea, &c. For that whereas the said defendants heretofore, to wit, on, &c. at, &c. by their certain writing obligatory, sealed with their seals, &c. acknowledged themselves to be held, &c. To be paid, &c. when they, the said defendants should be thereunto afterwards requested.” The condition of thé bond and the breach are then set out. To this.declaration, the defendants, without craving oyer, pleaded non est factum.

On the trial, the plaintiff offered in evidence a bond to the following effect: — “Know all men, &e. that we, Lionel J. Larkin, Dennis Carroll, John Knight, James P. Drake, Andrew Burlison, and George Crum, are held, &c. For the payment, &c. we bind ourselves, our heirs, &c. jointly and severally,” &c. This bond is conditioned for the due prosecution of the appeal by Larkin. The form of the execution of the bond by Larkin is as follows: — For L. J. Larkin, George Crum, [L. S.] The other obligors appear to have executed the bond in person. The defendants objected to this bond as evidence, on the ground that it varied from the one described in the declaration, in this, that the bond as stated in the declaration, purported to be Larkin’s, whilst that offered in evidence was the bond of Crum and not of LarJcin. This objection was adjudged valid by the Circuit Court, and the bond was rejected.

The verdict and judgment -were for the defendants. The plaintiff appeals to this Court.

The only question in the cause is, whether the bond offered in evidence purports on its face to be the bond of Larkin? The defendants contend, that it- appears to be Crum's bond and not Larkin’s. ■ We have no doubt on this question. Larkin is. named in the body of the bond as one of the obligors, and it appears to be executed for him by an agent. So far, therefore, as the face of the bond determines the point, Larkin must be considered one of the parties to it. The case of Deming v. Lindley, May term, 1823, shows this. The execution would have been more formal, had it been thus — Lionel J. Larkin, [L. S.] by George, Crum, his attorney. But it is in substance the same. The objection, therefore, made to the admission of the bond in evidence was insufficient, and should not have been sustained. This decision will not prevent the defendants from making any other objections in the Circuit Court, to the admission of the bond, which they may consider valid ⁽¹⁾.

S'. Judah, for the plaintiff. S'. Hall and C. I. Batlell, for-the defendants. Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.

(1) Although the bond be executed for the principal by an agent, it may, as in .the case in the text, be declared on as made by the principal himself. Chitt. on Bills, 7th ed. 357. It is usual, however, to state that the party executed'the bond by an agent. Ib.—2 Chitt. Pl. 117.