APRIL, 1808. Monday, Bartley and Ferguson against Yates. Tho' there be THIS was a supersedeas to a judgment of the General for the name Court, recovered by the defendant in error against the a total blank of the surety plaintiffs, upon a forfeited forthcoming bond, in the followin the obliga tory part of a ing words: bond, yet his name being mentioned in "Bartlett and the recital of signed and "Know all men by these presents, that we, Joshua are held and firmly bound unto the condition," William Yates, in the just and full sum of fifty-four and he having "pounds fourteen shillings and ten-pence, to the payment sealed it, it "whereof well and truly to be made to the said William was held sufYates, his certain attorney, his heirs, executors, admicharge him. "nistrators, or assigns; we bind ourselves, our heirs, exeA blank be- "cutors, and administrators, jointly and severally, firmly ing left in the condition of a "by these presents. Sealed with our seals, and dated this forthcoming "fourth day of November, one thousand eight hundred " and two. ficient to bond for the name of the high sheriff, to whom the property was "The condition of the above obligation is such, that "whereas William Yates hath sued out of the General to be deliver-❝ Court of Virginia a writ of fieri facias against the goods ed at the time sale, was held and place of " and chattels of the above bound Joshua Bartlett, which not to vitiate" writ, with the legal costs attending the same, amounts it, the name to the sum of twenty-seven pounds, seven. been men of the con of the high shillings and sheriff having "five-pence; and whereas Geo. Perkins, deputy, David tioned in a "Coupland, sheriff of Buckingham County, by virtue of former part "the said writ to the said sheriff directed, hath taken the dition. "following property belonging to the said Joshua Bartlett "to satisfy the same, to wit: one negro girl by the name "of Mariah; and the said Joshua Bartlett, being desirous "of keeping the said property in his possession until the "day of sale of the same, hath tendered the above bound James Ferguson as security for the forthcoming and de"livery thereof on the day and at the place of sale, agree"able to an act of Assembly in that case made and pro"vided. Now, if the above bound Joshua Bartlett and แ James Ferguson, or either of them, do and shall deliver either of MAY, 1808. "the aforesaid property to the said "his deputies at William Cheek's Tavern in Buckingham Bartley and County, on the twenty-second day of this month, that Ferguson "being the time and place appointed for the sale; then the "above obligation to be void, or else to remain in full "force and virtue. Y. Yates. Randolph, for the plaintiffs in error, assigned as reasons for reversing the judgment, that in the obligatory part of the bond, the name of James Ferguson is not mentioned; and that no person is named to whom the property was to be delivered. Williams and Call, for the defendant in error, contended that the signing, sealing and delivery of the bond by Ferguson, although his name should have appeared in no part of it, except in the signature annexed to the seal, was sufficient to charge him: but in this, his name is inserted in the recital of the condition.(a) (a) Cro. Fac. 261. Dobson v. Keys. 5 The blank left for the name of the sheriff must necessarily refer to the sheriff whose name had been before men- Bac. Abr. tioned. Gwil. edit. tit. "Obliga tions," let. B. 157, 158. Monday, May 9. The Judges delivered their opinions. Ibid. let. C. 159, 160. Grunsden. 1 kinson v. Mac Lochlin Judge TUCKER. The errors assigned in the petition for Cromwell v. a supersedeas in this case, are, that the name of James Call, 49. WilFerguson, one of the parties whose name is subscribed to inco the bond, is not mentioned in the obligatory part of a forth- Co. coming bond given by Bartley, against whom an execution at the suit of Yates had issued; and that no person is named, to whom the property is to be delivered, the name MAY, 1808. of the high sheriff being left blank, in that part of the condition. Bartley and V. Yates. The first of these omissions, I think, is amply compensated by the recital in the condition, that Bartley had tendered the above bound James Ferguson as his security, and by the delivery of the bond by Ferguson, as his act and deed, a circumstance not denied. The second, if not supplied by the name of the high sheriff mentioned in the former part of the condition, is fully supplied, I conceive, by the directions of the law, that such delivery is to be made to the sheriff, at the time and place appointed for the sale of the property, both which particulars are mentioned in the bond. Where a party, against whom an execution issues, obtains an indulgence, upon certain conditions, the Court will not regard trifling errors which are often the effect of haste or inexperience in young deputy-sheriffs, with an eagle's eye, where the substantial justice of the case, or the positive and invariable rules of law, do not require them to do so. Judge ROANE was in favour of affirming the judgment Judge FLEMING. The counsel for the plaintiffs in the supersedeas made two points in this case: 1st. Whether Ferguson, whose name is omitted in the penal part of the bond, but who is stated in the condition as the security, and who has signed and sealed it, be bound in law? If not bound, 2dly. Whether the judgment, which is against Bartley and Ferguson jointly, shall be reversed in toto, or in part only? With respect to the first point, it is laid down in the (a) Cro, Fac. case of Mathew v. Purchins, (a) that, if the meaning of the 295. parties can be collected from the bond, it will be good. Again, the name of the obligor subscribed is sufficient, though there be a blank for his christian name in the (b) Cro. Fac. bond.(b) So I conceive it to be in the present case, although 261. Dobson Keys. there is a total blank for the security's name in the penalty MAY, 1808. of the bond; he being stated in the condition a security for the delivery of the property, to which he put his signature and seal. Bartley and Yates. (a) 2 Co. 5 a. It is laid down in Goddard's case,(a) that only three things are necessary to making a good obligation, to wit, writing on paper or parchment, scaling and delivery; and it hath since been adjudged not to be necessary that the obligor should sign or subscribe his name; and therefore, if the obligor be named Erlin, and he sign his name Erlevin, this variation is not material, because subscribing is no essential part of the deed, sealing being sufficient. (b) This (6) 2 Salk point then being against the present plaintiff, it seems immaterial to consider the others; and the judgment of the District Court must be affirmed in toto. By the whole Court, (absent Judge LYONS,) the judg ment of the General Court AFFIRMED, 462. Quarles's Administratrix with the will annexed against Littlepage and Co. THIS was an appeal from a judgment of the District On the trial 'Court held at King and Queen Court-house. of an issue upon the as the testator, tor cannot be dence to Littlepage and Co. brought indebitatus assumpsit against sumpsit of the administratrix with the will annexed of John Quarles an assumpsit deceased, upon a store account. The declaration contained of his execu two counts: 1. For goods, wares and merchandizes sold given in eviand delivered to the testator in his life-time; 2. Quantum establish the valebant; and in both instances, charged the assumpsit of demand. the testator. Plea, "non assumpsit." At the trial, the The mere admission of a plaintiffs exhibited the account, on which the suit was debt is not brought, and offered evidence to prove, that when the said sufficient to charge the defendant with the whole demand of the plaintiff: he must, nevertheless, prove the Quarles's Adm'x V. Littlepage and Co. MAY, 1808. account was presented by the witness to the administra trix, she read it over, and did not object to any item contained in it, and said, that some things in the first part of the account, stated to have been delivered to her husband, (the testator,) she knew nothing of, but did not doubt that they were delivered, and that she would pay the balance. To this evidence, (which seems to have been all the evidence adduced, though the bill of exceptions does not expressly say so,) the defendant, by her counsel, objected as improper to go to the Jury, and as insufficient to prove the aforesaid assumpsit of the testator. "But the objection was "overruled by the Court: and as, from the nature of the " items, the defendant probably knew whether most of the "articles had been delivered to the testator, the Jury were "allowed to weigh the said testimony as to the delivery. "of the items to the testator." To which opinion an exception was taken; and there having been a verdict and judgment rendered for the plaintiffs, the defendant appealed to this Court. Randolph, for the appellant, referred to the case of (a) 1 Hening Fisher's Executor v. Duncan and Turnbull,(a) as settling Munford, this question; and did not suppose it could require an argument. 563. Call, for the appellees, contended, that there was a distinction between this case and that of Fisher's Executor v. Duncan and Turnbull, The great question there was, whether the assumpsit of the executor, on an issue upon the assumpsit of the testator, could be given in evidence to countervail the plea of the statute of limitations. But, in this case, the sole question is as to the delivery of the goods. The Court left it to the Jury to weigh the circumstances, connected with the assumpsit of the administratrix, and determine whether they amounted to proof of the delivery of the articles or not. Mr. Call also cited Gilbert's Law of Evidence, 160. (179, old edition.) |