Dec. Term, 1846. Bayless v. The Belmont Bank of St. Clairsville. IN BANK. given before the clerk signed the citation? The clerk certainly never did sign the citation, either in effect or in fact. The issue and service of a citation was waived by the bank, and a citation never did issue, and consequently could not have been signed by the clerk. In this view of the case, it appears plain that the bond did operate as a supersedeas, and that Judge Rogers was right in so finding and ordering the discharge of McKee. But we go further, and insist that, if the clerk had signed the citation before the bond was given, it being a ministerial act, and only directory to the clerk, yet the bond would be valid upon a fair construction of the statute, and the decisions made by courts of high authority in analagous cases. By the statute of Massachusetts, a writ of replevin was only effectual upon the giving of a bond by the plaintiff in the suit, with sureties; and, in an action on such bond, executed by the surety before the service of the writ, but not by the principal until after its return and the entry of the action, it was holden good as against both. 11 Mass. Rep. 282. Such a replevin bond is valid, although given the day after the service of the writ. 14 Mass. Rep. 313. The same statute requires a replevin bond to be conditioned to appear at the next term of the Court of Common Pleas, &c.; and, in an action on such bond, conditioned to appear at the next county court, it was held, in effect, good by the statute, and if not, it was valid by the common law. 8 Mass. Rep. 149. A bond given by a county treasurer, not conditioned as required by law, in part, was held a good statutory bond as far as it went, and if not good by the statute it was by the common law. 10 Ohio Rep. 51. But, independent of other matters, it is confidently claimed on the part of the bank, that Bayless and McKee are both precluded from saying now that the bond did not operate as a supersedeas, and that McKee was improperly discharged from custody, and that the bond is not valid, by the statute, for that reason. Bayless v. The Belmont Bank of St. Clairsville. Dec. Term, 1846. "If a representation be made of any fact with a view to in- IN BANK. 'fluence the conduct of another, or to derive an advantage to 'the party, and which cannot afterwards be denied without a 'breach of good faith, such representation will preclude the party who made it from insisting upon the contrary." "For ' in these and other such cases the party, by taking the benefit of the act, has conclusively adopted it." 2 Starkie on Ev. 28, 24. An estoppel in pais cannot be pleaded, but is given in evidence to the court and jury, and may operate as effectually as a technical estoppel. 8 Wend. 480, and cases there cited. If the bond had recited that a writ of error and supersedeas had been obtained, it would have been a technical estoppel. 5 Ohio Rep. 169; 5 Mass. Rep. 317; 6 Mass. Rep. 33; 11 Mass. Rep. 282. If the bond is valid as against McKee, it is equally so as against Bayless. The sureties are liable on the bond for all that the principal is. 5 Watts & Serg. Rep. 21. If Linn (principal) received a sufficient consideration to uphold the promise on his part, it was sufficient to bind the sureties. There was no necessity for any consideration passing directly between the plaintiffs and the sureties. 15 Peters' Rep. 314. "If Neal (the principal) is answerable on his bond, so must 'his surety be, who voluntarily executed it, that Neal might 'get his goods;" 6 Mass. Rep. 33. And, in this case, the principal was not permitted to show that he sued out the writ against law, to avoid the bond, and the surety was held bound in like manner with his principal. Second: If the bond is not good by the statute, is it a good common law bond? A contract entered into between competent parties and for a lawful purpose, not prohibited by law, and founded upon a sufficient consideration, is a valid contract at common law. 15 Peters' Rep. 311. IN BANK. Dec. Term, 1846. Bayless v. The Belmont Bank of St. Clairsville. There ought to be some very strong grounds to authorize a Court to declare an instrument absolutely void, which has been voluntarily made upon a good consideration. 15 Peters' Rep. 315. Has the bond all the requisites of a valid contract, at common law? Let it be tested First: Was it entered into between competent parties? Without any legislative act, it is competent for the United States and its subordinate agents and corporations to enter into contracts, if not prohibited by law, and appropriate to the just exercise of granted powers. 5 Peters' Rep. 115, and cases referred to. Second: Was the bond taken for a lawful purpose, not prohibited by law? No objection is made to the bond on this ground. Third: Was the bond founded upon a sufficient consideration? To support a contract of guaranty, it is a sufficient consideration, if the person for whom the guarantor becomes surety receives a benefit, or the person to whom it is given suffers inconvenience. Chitty on Contracts, 398; 4 Greenl. Rep. 521; 2 Har. & Gill. Rep. 13. Waiver of a legal right, at the request of another, is a good consideration for a promise by him. 2 New Hamp. Rep. 97 ; Wright's Rep. 660; 4 Pick. Rep. 9; 14 Johns. Rep. 466. A benefit resulting to the party, or, at his instance, to a third person, is, by all courts, held to be a sufficient consideration. BIRCHARD, J. A determination of two questions will dispose of this case First: Was the bond good under the statute? This question will be solved when we ascertain whether it operated to supersede the ca. sa. By the record, we learn that the judgment sought to be superseded had been removed, by writ of error, in October, 1840, to the Supreme Court of the Bayless v. The Belmont Bank of St. Clairsville. Dec. Term, 1846. county; that the parties had entered an appearance voluntari- IN BANK. ly; that the cause was submitted to the Court upon the circuit, and, by the judges, reserved for decision in Bank. The bond was delivered to the clerk and approved on the 13th day of August, 1841, about ten months after the jurisdiction of the Supreme Court, by consent of defendant and the assent of plaintiff, became complete. It took effect, if ever, as a valid bond, on the day of its delivery to the clerk, and from the moment he indorsed his approval upon it. By the statute, (Swan's Stat. 679,) "No writ of error shall operate as a su'persedeas to any execution issued on any final judgment of the Court of Common Pleas, unless the clerk, before signing the citation, shall take a bond from the applicant to the adverse 'party," &c. This statute is imperative. There is not much room left for construction, because its meaning is obvious and cannot be mistaken. It changes the rule of the common law, and introduces a new principle. Before the statute changed the law, the writ of error removed the entire proceeding from the inferior to the superior court, and left nothing remaining for the former to act upon. It took from the former the judgment and vacated it, with all its incidents. The force and effect of the statute requires the bond to be filed before the Supreme Court obtains jurisdiction of the parties to the writ of error. This is of the essence of the act. In the case under consideration, the Supreme Court had full jurisdiction near ten months before the delivery of the bond, by the acts and consent of both parties, or it never had jurisdiction. The defendants must take one or the other of these positions. If the first, and they treat the entry of an appearance by Mr. Cowen as the equivalent of a citation, and as substituted by the consent of both parties for a citation—and we think they must so treat it-it then follows that the bond came too late, and is not good, as a statutory bond. The object of such a bond is to affect the writ of error and cause it to supersede the execution. That was its consideration. It failed in that object, and, there Dec. Term, 1846. Bayless v. The Belmont Bank of St. Clairsville. IN BANK. fore, under the statute, failed altogether, unless there is some rule of the common law which will give it support. Against this view it has been urged, that the bond was filed in time; that, inasmuch as no citation has yet been signed and none ever issued, it was literally filed before "citation signed;" that the statute being derogatory to the rules of common law, must be strictly construed, and the words must be literally taken. This argument is like a two-edged sword, for it cuts more ways than one. If no citation has been issued, and nothing equivalent can supply its place, it inevitably follows, that no action whatsoever could be maintained upon the bond. Upon that hypothesis, the condition could not be forfeited. The Bank could have no right under it. Without a writ of error, a citation or its equivalent, a judgment or affirmance by the Supreme Court, a mandate and execution returned no goods, there could be no proceeding upon a valid bond. We proceed to consider, secondly, whether the bond is good at common law. To be good at common law, there must have been parties able to contract, their minds must have united in making the contract, and upon a good consideration, which consideration must have been the one agreed to, and existing as executory or executed, at the delivery of the bond. Now, to strip the question of all embarrassment, in order that we may have a clear conception of the law, let us for a moment lay out of view the entire proceedings before Judge Rogers, and then see if there was any, and if so, what consideration for the bond at the time it was delivered and took effect. We may well do this, for it is not to be supposed that any lawyer will seriously contend that his subsequent opinion or decision upon the habeas corpus, be it right or wrong, can in any way affect the obligation of the parties to a prior executed bond. Whatever may have been the rights of the parties, either at common law or under the statute, they were in no sense dependent upon Judge Rogers. He could neither enlarge or dimin |