The plaintiff offered in evidence a writing purporting to be a bond, payable to "Robert Vanhook, chairman, and other Justices of the county of Person." This paper was signed by John Garner, as principal, and the present defendants, as his sureties. John Garner was at the time of giving said bond, a justice of the peace for Person County.
The Deputy Clerk proved that he usually transacted the business of the Clerk's office — that the instrument was (269) filled up by him, and signed by the persons whose names were subscribed to it — that he had found the paper among the records, on file with other administration bonds. Barnett's name was not mentioned in the body of the bond. The plaintiff then produced the record of a judgment confessed by Garner, as the administrator of one Winstead, in favor of the relators, for recovery of which this suit was brought. The introduction of this judgment was objected to, but was admitted by the Court as prima facie evidence of assets, and the defendant was permitted to offer evidence that the administrator had no assets at the confession of the judgment.
Martin, J., before whom the case was tried at PERSON Fall Term, 1832, instructed the jury, that the facts above stated, *Page 221 if true and unexplained, would in law constitute a delivery; that the bond was valid, although Garner was one of the justices of Person; and that the question of assets was a fact to be ascertained by them. The jury returned a verdict for the plaintiff; from the judgment rendered, whereon, the defendants appealed. The defendants in this action contend that a new trial should be granted, on all, or some one, of the several grounds taken by them. First, that the Court erred in its opinion, when it declared the bond, upon which the action was founded, was valid in law, it being shown that John Garner, one of the obligors, was, at the time of the execution of the bond a justice of the peace for the county of Person; and, therefore, from the wording of the instrument, was to be considered an obligee of the said bond, which in law would make the instrument a nullity. The bond is given to "Robert Vanhook, chairman, and other justices of the County Court of Person, to be paid to the said chairman or his successors in office, or other justices of the county of Person." This case is not like that of Justices v. Shannonhouse,13 N.C. 6, and other similar cases, which have been decided in this Court, under the authority of that decision. In that case, the obligation was given to "John Muller, Ambrose Knox, and (270) the rest of the justices assigned to keep the peace," etc. The two obligees that were named, and the rest of the justices assigned to keep the peace for the county of Pasquotank, necessarily included all the justices of that county; and as Shannonhouse and Wilson were two of the justices of that county, at the time the bond was executed, the Court declared the bond to be nugatory and of no effect. In the present case, the bond is given to Robert Vanhook, chairman, and other justices of the County Court of Person. It may be asked what other justices? Do these words mean a part or the whole of the justices? If a part only, then it may be asked, what part, and who are they? The clause in the bond, containing the words — "and other justices of the County Court of Person" — is, in my opinion, uncertain, senseless and unmeaning, and must be rejected by the Court, in putting a construction upon this instrument. That part which is certain, shall not be vitiated by that which is uncertain and unmeaning. We, therefore, agree with the Judge who tried the cause, that the instrument is a good bond *Page 222 at common law. The bond having been executed after the Act of Assembly, passed in 1825, went into operation, directing that the bonds of administrators should be made payable to the Governor and his successors in office, prevents this instrument being considered an official bond.
Secondly, the Deputy Clerk of the County Court gave in evidence, that he usually transacted the business pertaining to the office — that the instrument aforesaid was filled up in his handwriting, and that the signatures of the names subscribed were in the proper handwriting of the persons designated; and that he had found the instrument among the records of the Court, on file with the bonds of administration and others. The Court charged the jury, that the facts above stated, if true and unexplained, would in law, constitute a delivery of the bond. The defendant excepts to this part of the charge of the Court, and I think, the Judge expressed himself rather in accurately. The bond was not an official, but a common law bond, and it being filled up (271) in the handwriting of the Deputy Clerk and found among the records of the Court, is not in law a delivery of the bond, though it is such strong evidence of it, as might naturally induce the Judge to say it proved it. It should have been left to the jury to say if from the evidence, they could, or could not infer, that the obligors had placed the instrument in the hands of the clerk or any other person, for the purpose and with the intention, that it should operate as an administration bond. If the jury could so infer, and it is hardly possible they should not, then, the bond having been delivered to a third person for the obligee, although that third person might be a stranger, it nevertheless, became the legal obligation of those who executed the same, from the date of the delivery to the third person; and it could not be avoided by the obligors, if the obligee afterwards accepted it as a bond.Threadgill v. Jennings, 14 N.C. 384.
The third ground taken by the defendant, for a new trial, is, because the Judge stated to the jury, that the record of the judgment confessed to the bank by Garner, the administrator, was prima facie evidence, not only of the amount of the debt, but also of the fact, that he had assets to pay the same. I think the Court erred in this part of the charge to the jury. It has been determined by this Court, in McKellar v. Bowell, 11 N.C. 34, that the record of a recovery against a guardian, is not evidence against his securities, in an action brought by the plaintiff in that recovery against the securities to subject them upon the guardian bond for the default of their principal. *Page 223 The same argument and reasons now urged by the plaintiff's counsel, to prove that the judgment against the principal, is prima facie evidence against the security in another action, were either urged by the counsel, or noticed by the Court, in McKellar v. Bowell, supra. Chief Justice TAYLOR, in his elaborate opinion delivered in that case, has explained and answered the whole of them. After this question has undergone so solemn a determination in this Court, I do not feel myself at liberty to say, it is not the law of the land.
The fourth reason offered for a new trial, is at the (272) instance of the defendant, Barnett. His name is not mentioned in the body of the bond, nor does it begin with the words, "we are held and firmly bound to R. V., etc;" but it begins thus — "Know all men by these presents, that John Garner, Carey Williams and Richard H. Burton are held and firmly bound unto R. V., etc." At the bottom of the paper, there are the signatures and seals of Garner, Williams, Burton and Barnett. In the body of the printed form of the bond, there had been a blank left for the insertion of the names of the obligors; the name of Barnett had been omitted in filling up the blank. In Smith v.Crooker (5 Mass. 539), a bond had been executed by a surety before his name was inserted in the body of the bond, his name being afterwards inserted when he was not present. The bond was held good against him. The Court said they were satisfied it was sufficient evidence, that he consented that the blank might afterwards be filled by inserting his name. The Court further said in this case, it is very clear that the security would be holden as an obligor, on his executing the bond, if the blank had been filled up with his name. I think that Barnett became bound in the bond to Vanhook, by signing and sealing the instrument, if it was afterwards delivered. I think, nevertheless, that there should be a new trial for the reasons stated in the second and third grounds taken by the defendants.
PER CURIAM. Judgment reversed, and a new trial granted.
Cited: Williams v. Springs, 29 N.C. 386; Iredell v. Barbee, 31 N.C. 254;Kerns v. Peeler, 49 N.C. 228; Greene v. Thornton, Ib., 231; Adams v.Hedgepeth, 50 N.C. 329; Howell v. Parsons, 89 N.C. 232; Moore v.Alexander, 96 N.C. 36. *Page 224
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