Fitts ex rel. Slade v. Green

Henderson, Chief-Justice.

I agree with the counsel ^01’ ^le plaintiff, that the words other justices neither mi-port all the justices, nor any definite number of them, may ¡ye satjsfJC(| with less than all of them; and therefore may mean any two, or any greater number of them. If does not necessarily import all, as the words the jus-f[ces q0, Henry Fitts is therefore the only obligee. For it is the same as if it had been payable to him and “ other people/’ or to him and-, (leaving a blank). And the certain description is not vitiated by an uncertain one. The action is therefore brought in the name of the only obligee. There are no others. And the words “ to be paid to the said justices” are also to be rejected, as referring to the uncertain and indefinite description, other justices.

But in this case, there is no evidence of a delivery. None was given of an actual delivery to Fitts. For the clerk is his agent for the delivery of official bonds only, which this is not. And from the whole case it is evident, that it was intended that John C. Johnson was to sign it also. It is a fair and reasonable presumption, in the absence of all proof of an actual delivery to the ob-ligee, that he whose name is mentioned, both in the body of the bond and the minutes of the court, as a co-obligor, I mean John C. Johnson, was also to sign it; and that upon the condition, that he also signed and became bound, was Green to become bound. Common sense and common experience, and justice to Green, require this exposition of the transaction.

As to the meaning of the words oilier justices, and who is the obligee or obligees, I have expressed my own opinion only, the case being decided by the court, on the other ground ; that is, that there was no evidence of a delivery..

Per Curiam. — Judgment affirmed-