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

It is this: These official bonds are not, like private bonds, delivered to the obligee, or party whose interests are to be protected by them, but are delivered to, accepted, and approved, by some public officer charged with that duty. In the case of private bonds, the obligee may, at the time of delivery to him, by inquiring into the facts, see that the execution has been regular; and if he do not, it is his own negligence.

But in the case of official bonds, the parties whose rights are intended to be protected by them, have it not in their power to take care of their rights, in regard to the due execution of the bond.

The official bond is received; upon its face it appears regular enough; it has been accepted and approved by the Court; the officer has been admitted into the exercise of his office, and the interests of strangers are intrusted to his hands. All this, it is fair to presume, has been done with a knowledge of its progress, by the persons whose names appear to the bond as sureties. Now, if either must suffer, the sureties or the stranger, which should it be?

One further suggestion, and I will close.

This is a joint action against the sheriff, whose execution of the bond is not denied, and the other defendants as his sureties. I ask, how can judgment be rendered against the plaintiff? Would not such a judgment be a bar to any action against the sheriff, alone, on the bond?

This is, I believe, the exact question, in principle, on which the case of Farrington v. Myers and others, Ohio Rep. -, was grounded.

It is true, in that case, the ground on which the surety sought to be acquitted was different, being for matter arising subsequent to the making of the note. But this does not vary the

reason.

Upon the main question, I beg leave to refer the Court to the authorities collected in the 1st vol. of Smith's Leading Cases, (Phila. ed. 1844,) pages 595-6-7-8-9, at the top. The whole

IN BANK.

Dec. Term,

1846.

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

IN BANK. doctrine is examined, and the authorities brought together in Dec. Term, that place.

1846.

The attention of the Court is also invited to the following cases: Ayres v. Harness, 1 Ohio Rep. 173; Bank of St. Clairsville v. Smith, 5 Ohio Rep. 137, and Smith v. Crooker, 5 Mass. Rep. 538.

Henry Stanbery (Attorney General) and James R. Stanbery, for Defendants.

The plaintiffs ask the Court to say, that the mere signing and sealing of a paper purporting to be a sheriff's bond, and leaving it in the hands of the sheriff, is authority of itself, to the sheriff or the Court, to make it a valid bond, by inserting a sum, wholly unknown and unascertained, when the paper was executed.

There is no case, English or American, which goes that length.

I will first call the attention of the Court to the decisions in our own State.

Ayres v. Harness, 1 Ohio Rep. 368, is the first in order. Harness, being indebted to Ayres in a sum not then ascertained, wrote his name and affixed his seal to a blank, and delivered it to Ayres, with express authority to write over it a note for the amount which should be found to be due. This was accordingly done by Ayres. The Court held the bond void.

Bank of St. Clairsville v. Smith, 5 Ohio Rep. 222. This was the case of a mere money bond, which, when executed by Smith, was in blank for the amount, and so left in the hands of a coöbligor, who was to fill the blank with a sum not over $200. The coöbligor did, however, fill the blank with $700; and, after that, it was discounted by the bank, without any knowledge of the facts. At the trial on the circuit, the Court, relying on the case of Peroling et al. v. The United States, 4 Cranch, 219, held the bond void in the hands of the bona fide

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

holder. The Court, on the motion for a new trial, held as IN BANK, Dec. Term, follows: 1846.

"In that case (Peroling v. The U. States) the bond was not complete when signed by a part of the obligors; on its 'face it contained evidence that it was to be signed by others,, 'who had not signed it. Besides, it was not a bond direct for 'the payment of money, but for the performance of a collateral ' condition. The case turns now upon the question, whether ' notes under seal, made for the payment of money, in Ohio, ' are to be assimilated to commercial paper, or to common law bonds. If the former, then it is well settled that he who reposes the first confidence must bear the ultimate loss; and we 'believe it ought to be so. When notes under seal, for the

payment of money at a day yet to come, complete upon their 'face, are negotiated in good faith, they should be treated as 'commercial paper, and all the incidents of such paper should ' attach to them. The statutes of the State give them a nego'tiable character, and we but follow their indication in so re'garding such notes."

It is clear that this case proceeds upon the distinction between bonds for money, having all the characteristics of commercial paper, and bonds for the performance of collateral conditions, and only sustains the filling a material blank in such money bond, in favor of a bona fide holder, who takes it after the alteration, when it is complete upon its face. Ayres v. Harness was a money bond, belonging to the class of commercial paper, but was not overruled, by Bank of St. Clairsville v. Smith, for the reason that it was not complete on its face when Ayres took it.

Spencer v. Buchanan, Wright's Rep. 583, was an action on a bail bond, in which was a blank as follows: "Three hundred and fifty ." The declaration set it out with an inuendo, "thereby meaning three hundred and fifty dollars." On demurrer, the Court was against the plaintiff. This case shows the materiality of a blank for the amount, and that no recovery can be had by any averment as to the words which were intended or omitted by the blank.

IN BANK.

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

The foregoing are all the cases which have been before this Dec. Term, Court having any bearing on the question in this case.

1846.

I will now proceed to examine the cases relied upon by the plaintiff's counsel, and these are Smith v. Croker, 5 Mass. Rep. 538, and the cases collected in 1 Smith's Leading Cases, 597.

Smith v. Croker was debt on the bond of a collector for taxes, with a blank for the name of the surety, who had signed and sealed the bond. Parsons, C. J., in delivering the opinion of the Court, holds the bond to be good, and assigns two reason: First, that the surety must be taken to have assented that the blank should be filled with his name, as he had signed it as a coöbligor; and secondly, that the alteration or addition was no way material, as the surety would have been just as fully bound if the blank had not been filled up.

It is clear this case in Massachusetts can only be held to be an authority for the filling of an immaterial blank; and what is said as to filling the blank in the absence of the obligor, must be understood in reference to such an addition.

The next case relied upon is Hunt v. Adams, 6 Mass. Rep. 519. That was a money bond, and the blank filled was wholly immaterial, and such an one as the Court said the law would have supplied.

Sigfried v. Levan, 6 Serg. and Rawle 308, was a money bond, which was complete when it came to the hand of the payee.

Stuhl v. Berger, 10 Serg. and Rawle 170, was also a money bond, with a blank for the name of the payee, and authority given to coöbligor to fill it up.

Now it is quite clear that none of these cases furnish a ground for sustaining the bond in the case at bar; for the alteration was most material, and the obligation was not of a commercial character, but for the performance of collateral conditions. So that even if express consent to make this addition could be made out, it would not, according to the doctrine above referred to, sustain the bond. However that may be, there is no pretence of any express consent in this case.

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

The agreed facts do not make it necessary to consider how this case would stand on proof of express consent to fill this blank, or express ratification afterwards. There is no pretence of such express consent here; nor is it even claimed that the plaintiff can prove such assent or ratification. What is said at the close of the agreed facts, as to the proof the plaintiff's claim they can make, if it amount to any thing, would only tend to show an implied consent.

The case, then, stands upon the following point: Whether the filling of a material blank, in an obligation for the performance of collateral conditions, in the absence of the obligors, and without evidence of express consent, and, we might add, of implied consent, or of subsequent ratification, would be binding on mere sureties.

There is no case that comès up to the affirmative of that proposition; and the furthest that courts have gone, even with regard to mere money bonds, is to establish material additions upon proof of express consent. 1 Smith's Leading Cases, 597.

I will only refer to one more authority, and that is of recent date, Graham v. Holt, 3 Iredell 300. The book is not to be found here, but I extract the note of the decision as it is given in the American Law Magazine, for April, 1844, No. 5, p. 176. "Verbal authority to fill a blank in a bond for the sum is not 'good. A paper writing, purporting to be a bond, signed and sealed by a party, in which a blank is left for the sum to be 'afterwards inserted, which blank is afterwards filled up and 'the paper delivered, not in the presence of the party signing,

nor by any person having authority from him under seal, is 'not the bond of the party so signing and sealing."

But it is argued, on the other side, that this bond, so altered, ought to be held binding on these sureties, because, in executing it they must have intended to be bound. That is a strange doctrine; for it would authorize any alteration or addition, to make a good bond for a party who had failed to make a good one for himself.

IN Bank.

Dec. Term,

1846.