IN BANK. Dec. Term, 1846.

Edwards v. Owen.

We think that this instruction should have been given. It is what the law required, and, to us, seems to have been all that the case required. The residue of the instructions requested, present questions that could not legitimately arise in the case, because they were foreign to the issue. It was not, therefore, error to refuse them.

In the instructions given we find no fault, save in the last clause, in these words: "Proof that Edwards made the false ' and fraudulent representations imputed to him, to other creditors, with intent to defraud his creditors generally, by inducing them to compound their claims at less than their value, ' and that the false representations so made to others came to the < knowledge of Owen and induced him to compound his debt

at less than its value, will sustain the declaration," and Edwards would be liable to make good the difference between the value of the note and the property given in its discharge, altho' he did not warrant the property and made no false representation as to its quality. To this there are objections. Proof that false representations were made to Owen's neighbors does not sustain an averment that they were made to himself. Parties must recover according to their allegata and probata. Both must correspond. Owen could not alledge that Edwards had deceived him, by a misstatement made to him, and in which he had placed confidence, when none was made to him. The falsehoods imposed upon his neighbors was not a matter of his. He made no case of that kind in his declaration, and he could not be justified in relying upon what was said to them. Indeed, all that was thus said had nothing to do with this case, except so far as it tended to show with what intent Edwards made false statements to him directly, and upon which he did, and had a right to rely. The Court erred in this, and the judgment must be reversed.

State of Ohio, use of Rosett and others, v. Boring and others.

THE STATE OF OHIO, for the use of ROSETT & BICK-
ING, VS. CALEB BORING and others.

The penalty of an official bond cannot be inserted by a third person after the execution by the obligor, in his absence, without an express authority under his hand and seal.

IN BANK. Dec. Term, 1846.

THIS is an ACTION OF DEBT reserved in the County of LICKing.

The action is brought against a sheriff and the sureties upon his official bond. The plea of non est factum has been filed, and, by the sureties, an affidavit of the truth of the plea is appended. The case is submitted for the consideration of this Court, upon the following agreed statement of facts:

In this case, the following facts are agreed: That the said Caleb Boring was elected sheriff for said county of Licking at the October election, in the year 1840; that the said Caleb Boring, after his election, on the 30th day of October, 1840, applied to the other defendants, John Yontz, Samuel Parr, Lewis Boring and James Hazelton to become his securities in his official bond, as sheriff, and, thereupon, a paper writing was signed and sealed by said Caleb Boring and the said John Yontz, Samuel Parr, Lewis Boring and James Hazelton, of which, when so executed, the following is an exact copy, viz:

"Know all men by these presents, that Caleb Boring,

are held and firmly bound
dollars, for

unto the State of Ohio, in the penal sum of
payment of which well and truly to be made, we bind ourselves, our heirs
executors and administrators jointly and severally, firmly, by these presents
Sealed with our seals, and dated this

day of October, in the

year of our Lord one thousand eight hundred and forty

"The condition of this obligation is such, that whereas, the above bounden Caleb Boring has been, by the qualified electors of Licking county, in the State of Ohio, duly elected Sheriff of said county; Now, therefore, if the said Caleb Boring shall well and truly perform all the duties of

State of Ohio, use of Rosett and others, v. Boring and others.

IN BANK. the said office of Sheriff, and faithfully pay over all moneys that may Dec. Term, come into his hands, as such Sheriff, then this obligation to be void and of 1846. no effect, otherwise to remain in full virtue, both in law and equity.

That the paper writing, being so executed, was left in the hands of said Caleb Boring, who, subsequently, on the 6th of November, 1840, presented the same to the Court of Common Pleas for said Licking county, for their approval; that, thereupon, the Court directed the clerk to fill the first blank with the names of said sureties, and the second blank with the words, "fifteen thousand," and the third blank with the word, "thirtieth," and, threupon, ordered said bond to be filed; and the same was, by the Court, accepted and approved as the offiIcial bond of said sheriff.

If the Court shall be of opinion that the plaintiff is entitled to recover, and that the said paper writing is the bond of the defendants, it is agreed that judgment be rendered, as of the first day of this term, for the penalty, with an award of execution for the sum of $1,013.87, the amount due in equity; but if the Court should be of opinion, with the defendants, that the said paper writing is not the bond of the defendants, then a judgment shall be rendered for the defendants, upon that finding.

It is further claimed by the plaintiffs, that at the time the paper writing was executed by the sureties, one of them asked, in the presence of the others, "what the penalty would be." to which some one present replied, that "It would probably be the same as the penalty in a former bond" given by the same Boring at a former election; and that still another person also said, it would make no difference, as Boring (the sheriff,) would

State of Ohio, use of Rosett and others, v. Boring and others.

Dec. Term

1846.

do his duty at any rate; and the plaintiffs also claim, that the IN BANK. penalty of said former bond was $15,000. The matter so claimed is not admitted by the defendants; but it is agreed, that if the Court should consider it material, the case is to be sent back for trial.

H. H. Hunter and S. D. King, for Plaintiff.

The naked question presented in this case, is whether, in the absence of all fraud, and when the intention of the parties has actually been complied with, the bond shall be held as absolutely void; whether the law has a higher regard for unmeaning technicality than it has for the great and important ends of justice.

The sureties knew for what object the bond was given, and that the law had fixed the limits of the penalty to be named by the Court. Hence, when they signed their names, and delivered the paper in blank to the sheriff, to be used as his official bond, they, by implication, authorized the sheriff to fill the blank with the sum named by the Court.

If the blank had been filled in the presence of the sureties, and by their direction, or with their assent, it will not be pretended but that they would be bound. What is the difference, in principle, whether the signing was done in their presence, or elsewhere by their direction and consent? Is it not equally their act, if done in their absence, pursuant to authority given by them?

The essential inquiry is, whether authority was given to do the act. This is always a question of fact, and may be proved in any way by which a fact may usually be proved, according to the rules of law.

It may be, therefore, proved by written evidence, sealed or not sealed, or by parol testimony, direct or circumstantial.

In this case the evidence is circumstantial. Certain facts are admitted, from which the inference of authority given, or in

State of Ohio, use of Rosett and others, v. Boring and others.

IN BANK. tent on the part of the sureties to have the blanks filled, is inevitable.

Dec. Term, 1846.

For instance, it is a part of the agreed case, that the bond was delivered to the sheriff, to be used as his official bond.

Now, that could not be done without filling the blanks according to the order of the Court as to the penalty, and according to the truth as to the names and date.

It may be argued that good policy would forbid the sustaining of this case as a precedent. I see no difficulty about it. Here the facts are clear and certain; and, for one, I think it much more politic, as well as by far the more just in the particular case, to hold these parties, by a bond fairly entered into, according to their actual intent, than to declare the bond void. No injustice can be done on the one hand, whilst immeasurable mischief may be the consequence on the other. Who can tell how many bonds, official bonds, in the State of Ohio, have been executed in a similar way? I believe it has been pretty generally customary. Indeed, it seems to be almost necessary, in all those cases of official bonds, the amount of the penalty in which is to be fixed by the Court. Either all of the sureties who may reside in remote parts of the county, must come up to the county seat when the bond is offered for acceptance, or the Court would have to convene twice; once to fix the amount of the penalty, and again to approve of the sureties and accept the bond. Now, there is no good sense in requiring any thing more than that the Court should be assured of the fact that the parties purporting to have executed the bond, did so in fact, understanding the object. Such has been the custom of the country, known to most business men.

Such bonds have been received and relied upon as the official bonds of the officers; and it would be a hardship indeed if they were not holden obligatory.

There are cogent reasons why a bond like this, an official bond, should not stand on the same footing with private bonds, in regard to their validity, for the reason or on account of which the validity of the bond is questioned in this case.