70S Waas, Glaser v. (Conn.).. 108 355 478 Walker v. North Jersey St. R. Co. (N. J.) 486 Waterman Co., Higham v. (R. I.). Waters, Disharoon v. (Md.). Wayne v. Pennsylvania R. Co. (Pa.). Weaver v. Phillips (Pa.).. Wilmington Trust Co., Jacobs v. (Del.).. 346 ... .1001 718 335 174 35 895 730 Winans, De Galard de Brassac v. (Md.)... 730 300 643 178 837 142 .1097 ... 46 Woodruff v. Lehigh Val. R. Co. (Pa.).....1128 Worth v. Westfield (N. J. Sup.).. 526 Wright v. Doe ex dem. Town of Seaford 104 Webb & Co. v. Novelty Hosiery Co. (Pa.).. 173 Weeks v. Mansfield (Čonn.). 784 Wright, Faitoute v. (N. J.).. 559 Weil & Co. v. Quidnick Mfg. Co. (R. I.).. 447 Weiner, State v. (Conn.). Wright, Langrell v. (Del. Super.). 235 198 Wright v. Seaford (Del.).. 250 Weisner v. Hansen (N. J.).. 455 Wylie v. Kirby (Md.). 962 Weissman v. Volino (Conn.). 81 Wynehouse v. Mandelson (Conn.).. 706 .... Welch v. Wilmington City R. Co. (Del. Super.) 634 Wells v. Knight (R. I.).. 16 West Arlington Land Co. of Baltimore Yerger v. Hunn (Pa.). 527 County v. Flannery (Md.).. ... 965 Westervelt v. Dives (Pa.).. THE ATLANTIC REPORTER VOLUME 80 (32 R. I. 499) HORTON v. STONE et al. (Supreme Court of Rhode Island. June 16, 1911.) 1. EVIDENCE (§ 121*)—RES GESTE-ACTION ON BOND. of a witness, at whose instance defendant signed In an action on a replevin bond, evidence the bond, that when it was signed it was a mere unfilled blank, that defendant, before signing, refused to sign unless it was to be signed by S. as principal before delivery, and that it was on this understanding that he signed and delivered the bond into the custody of the witness, was admissible as res gestæ. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 303-338; Dec. Dig. § 121.*] 2. PRINCIPAL AND SURETY (§ 145*)-RES JUDI САТА. A judgment dismissing a replevin suit because the bond was void, to which no exception was taken, held res judicata as to the validity of the bond in an action thereon. [Ed. Note. For other cases, see Principal and Surety, Cent. Dig. 88 397-401; Dec. Dig. 8 145.*] 3. REPLEVIN (§ 33*)-BOND-VALIDITY. Gen. Laws 1909, c. 336, § 3. provides that the officer charged with the service of any replevin writ shall, before serving the same, take from plaintiff, or some one in his behalf, a bond to defendant with sufficient sureties, etc. Held that, where a bond offered in replevin was executed in the name of the plaintiff in replevin as principal, by another as his agent, and there was nothing to show the agent's authority to sign the plaintiff's name, the bond was not given by such "plaintiff or some one in his behalf," and was therefore void. [Ed. Note. For other cases, see Replevin, Cent. Dig. 138-153; Dec. Dig. § 33.*] 4. REPLEVIN (§ 33*)-BOND-BOND OF THIRD PERSON. Under Gen. Laws 1909, c. 336, § 3, requiring a bond in replevin, either by plaintiff or some one in his behalf, a bond given by a third person on behalf of the plaintiff must be executed by such third person in his own name on the plaintiff's behalf, and not in the name of plaintiff by such third person as his agent. [Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 138-153; Dec. Dig. § 33.*] 5. PRINCIPAL AND SURETY (8 27*)-BONDDELIVERY. livered, and after signing the bond gave it into the hands of W. to be completed, and he thereafter signed plaintiff's name to the bond, by himself as agent, without authority, and delivered the bond to the officer, the delivery of the bond by defendant to W. was a mere delivery in esbond to the sheriff to make the same an enforcecrow, and, the condition never having been fulfilled, there was no sufficient delivery of the able obligation. [Ed. Note.-For other cases, see Principal and Surety, Cent, Dig. §§ 138-153; Dec. Dig. § 27.*] 6. REPLEVIN (§ 33*)-BOND-VALIDITY. A replevin bond, without the signature of the principal obligor, is void as to the sureties. [Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 138-153; Dec. Dig. § 33.*] Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge. Action by Daniel H. Horton against Frank C. Stone and others. Verdict directed for defendants, and plaintiff brings exceptions. Overruled. William M. P. Bowen, for plaintiff. Harry C. Curtis, for defendants. PARKHURST, J. This is an action of debt on bond, originally brought against Frank C. Stone as principal, and Walter W. Smith and William E. Arnold, named as sureties in a replevin bond, naming the plaintiff as obligee, attached to a writ of replevin wherein Frank C. Stone was named as plaintiff and Daniel H. Horton was named as defendant. Upon this writ of replevin certain personal property, which Horton had attached as the property of Henry M. Wood, in a suit of Frank Maroni v. Henry M. Wood, was taken from Horton's possession, and turned over either to Wood or Smith, and finally, through one or the other of them, came into the possession of Frank C. Stone. The replevin bond was dated April 30, 1902, and sets out Frank C. Stone, of Taunton, Mass., as principal, and William E. Arnold and Walter W. Smith, both of Providence, as sureties. The bond purports to be signed: "Frank C. Stone, by Henry Where defendant executed a replevin bond in blank as surety, on condition that plaintiff in the replevin suit should execute the same as principal before the bond was sealed and de•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Index Walter W. I adduced in support thereof are entirely immaterial, in our view of the case. M. Wood. William E. Arnold. Smith"-and to be sealed. This writ of replevin was entered in the district court of the Sixth judicial district, and on May 22, 1902, the entry was made: "Writ dismissed (insufficient bond)." The writ in this present action was served upon Frank C. Stone and William E. Arnold; but Walter W. Smith, cosurety, not being found and having no last and usual place of abode within the officer's precinct, was not served with process. Demurrer to the original declaration was sustained, upon the grounds that the declaration did not allege that Henry M. Wood had authority to execute said bond in behalf of Frank C. Stone, and also because it does not appear in said declaration that said bond was executed by said Frank C. Stone in person or by any person in his behalf. Certain other grounds of demurrer were overruled, and it was held that the bond was not sufficient as a statutory bond. The question whether the obligors who executed the bond were liable on the same as a common-law obligation was left to be determined upon evidence as to the obligation of the principal and as to whether the sureties delivered it under such circumstances as to make it obligatory upon them alone. The bond is a joint and several bond. The amended declaration is in two counts against William E. Arnold only, one of the sureties, and his demurrer thereto was overruled. The case at bar, upon the amended declaration, against William E. Arnold alone, was tried in the superior court before a jury, on November 10, 1909, and a verdict for the defendant was directed by the trial judge, on the ground that it affirmatively appeared that the defendant Arnold (having, as the evidence showed, signed the bond in blank at the request of Henry M. Wood, and delivered the same to Wood upon the express stipulation that he was doing it for the sake of Stone, the plaintiff in replevin and the principal in the bond, and that Stone was to sign as principal), relied on Stone's signing, or somebody for him, so that his signature should be a valid signature to the bond, and that, as this was not done, the defendant was not liable. The declaration was in two counts, and the defendant pleaded non est factum to both, with an additional plea to the second count that Henry M. Wood, the defendant in the original action where the attachment was made, was adjudged a bankrupt on May 4, 1906, and that Frank Maroni, creditor, was named in the schedules, and that said bankrupt was duly discharged from bankruptcy on October 8, 1906. The date of the writ in this present action of debt on bond was March 26, 1906. It will not be necessary for us to consider the effect of this The plaintiff duly excepted to the decision of the court below in granting the motion of the defendant for the direction of a verdict, and in directing the same, and has duly brought his bill of exceptions to this court, setting forth said exception, and also certain other exceptions, relating to the admission of testimony regarding the bankruptcy and discharge of Henry M. Wood, in support of the plea above referred to (and which, as above stated, we shall disregard as immaterial so far as that plea is concerned), and certain other exceptions relating to the admission of the testimony of Henry M. Wood as to a certain conversation had between Wood and the defendant Arnold regarding the execution of the replevin bond by Arnold. [1] It appears in evidence that the property attached as the property of Wood in the suit of Maroni v. Wood was in the custody of Wood at the time of the attachment; but there is no conclusive evidence whether it was owned by Wood or Stone. Stone was in the South at that time; and Wood, claiming that it was the property of Stone, and to protect Stone's interest, went at once to a lawyer to procure a writ of replevin. He obtained a printed blank writ of replevin, with blank bond attached to it in the usual statutory form, and took it to the defendant Arnold, without any of the blanks having been filled out, and asked Arnold to sign it as a surety; no seals being then thereon. Wood testifies as follows, in regard to his conversation with Arnold: "Q. 9. What was said between you and Mr. Arnold, at the tion to the signing of the paper? A. I took time of the signing of this paper, in relathis paper to Mr. Arnold, and asked him to sign it. I told him it was a bond, and he asked if it was for me, and he said if it was he wouldn't sign it, and I told him, 'No, Frank C. Stone was going to sign it, and I it was for Frank C. Stone,' and he asked if said he was, and he said, 'If Stone is going to sign it, I will sign; otherwise, I won't.' Q. 11. He is a lumber merchant or agent. Q. 10. Who is this Mr. Stone? A. Do you know whether he is related in any Now, I will ask you if you will look at those way to Mr. Arnold? A. I think he is. Q. 12. other papers that are before you. Just a moment, in relation to this paper. After Mr. Arnold signed it, what did you do with it? A. I took it back to Mr. Bean, and he put on the seals and got Mr. Smith to sign it. The seals were not on it when Mr. Arnold signed it, because he didn't have any in the office. Q. 13. Was the bond filled out, or was the bond blank? A. It was entirely blank, just simply the printed matter on it, when I took it to Mr. Arnold." It is this conversation which is the subject of plain no error in its admission. Wood was in so this point is res adjudicata so far as this fact the only witness who saw the defend- case is concerned. Furthermore, a mere inant sign the blank bond, and it was entire- spection of the statute regulating replevin ly proper that he should be examined in re- suits (Gen. Laws 1896, c. 272, § 3, now relation to the facts within his knowledge re-enacted in Gen. Laws 1909, c. 336, § 3), which lating to the signing of this bond by the defendant, and to the defendant's stipulations at the time. These facts were properly a part of the res gestæ, and their exclusion would have been improper. The defendant Arnold was examined as a witness in his own behalf upon the same matters as were the subject of inquiry from Wood, and testified fully as to his conversations with Wood at the time of his signing the bond and as to all the circumstances connected therewith. In effect Wood's testimony was corroborative of Arnold's. The defendant repeatedly says that when Wood brought him the blank bond, and asked him to sign as surety, he asked Wood if it was for him (Wood) or for Stone that he was to sign, and was informed that it was for Stone, in order to replevy Stone's property from an attachment; that he distinctly told Wood over and again that he would only sign it for Stone, and on condition that Stone was to sign it as principal; that Wood fully understood that the bond was to be signed by Stone, before delivery, and that only on this understanding did he sign the bond and allow Wood to take it away; that he (defendant) never delivered the bond to the plaintiff, nor authorized its delivery to any one, except upon this express condition; that he did not know whether or not it had ever been delivered, and never saw it afterwards, until it was produced in court; that he knew Stone was away at the time he signed it, and it was the distinct, understanding with Wood that the bond was to be sent to Stone to have his signature also placed thereon. There is not a word of testimony to contradict these statements of Wood and Arnold as to this understanding and condition that the bond was to be signed by Stone as the principal obligor before it should be delivered and become a valid obligation as agains the defendant. Under these circumstances, and in view of the fact that the bond was not signed by Stone, but was in fact signed, "Frank C. Stone, by Henry M. Wood," and in that form was allowed by Wood to pass into the hands of the officer serving the writ of replevin, we are of the opinion (1) that the bond itself, in that form, was not a valid statutory bond; (2) that no delivery of the bond was ever made, so as to make it a binding obligation upon this defendant; (3) that the bond, without the signature of the principal obligor, is void as to the sureties. [2, 3] 1. The bond is not a valid statutory bond. It was so held both by the district court, in dismissing the replevin suit, and also by the superior court, in this suit, after a hearing upon demurrer. No exception or reads as follows: "Sec. 3. The officer charged with the service of any such writ shall, before serving the same, take from the plaintiff or some one in his behalf a bond to the defendant with sufficient sureties in double the value of the goods and chattels to be replevied," etc.-shows that the bond is not the bond either of the plaintiff or of some one in behalf of the plaintiff. It is on its face imperfect and incomplete, in that it purports to be executed in the name of the plaintiff by a third person, who is not shown to have had any authority whatever to bind the plaintiff in this way. [4] Furthermore, the evidence shows that the plaintiff in replevin was out of the state at the time the bond was signed and knew nothing about it. If Wood wished to give bond on behalf of the plaintiff in replevin, under the statute, he should have given bond in his own name in behalf of the plaintiff, and that would have complied with the statute. See Dunbar v. Scott, 14 R. I. 152. As it is, neither the plaintiff in replevin (Stone) nor Wood is bound by the bond as attempted to be executed. The plaintiff in this case, Horton, therefore, was not bound to surrender the goods under attachment in his hands; for he should have seen that the bond was not in accord with the statute, and the form of the bond with this attempted execution thereof was at least sufficient to put him upon inquiry whether the sureties who had signed the same could be held thereunder. [5] 2. We are of the opinion that no valid delivery of the bond was ever made, so as to make it a binding obligation upon this defendant. As shown above, it is the undisputed testimony that the defendant, when he signed as surety, at the request of Wood, did so upon the express condition that the plaintiff in replevin, Stone, should sign the bond as principal before it should become binding. The delivery of the bond upon this condition to Wood was a mere delivery in escrow, and Wood had no authority to deliver this paper to anybody until it had been signed by Stone. The mere fact of the signature by the defendant upon the blank form, and its delivery to Wood, could, at most, only be held to authorize Wood to have the blanks filled, so as to make it a valid replevin bond for the purposes of the suit according to the stat ute." It certainly could not be held that there was any implied authority conferred upon Wood to sign Stone's name to it without authority, even if there had not been the express stipulation that it must be signed by Stone. The delivery to Wood, then, he being a third party and a stranger to the suit, be ties should sign the bond, and so, that such defense was not available to the sureties. In commenting upon and distinguishing the case of Pawling v. United States, 4 Cranch, 219, 2 L. Ed. 601, the court says, as follows (16 Wall. 5 [21 L. Ed. 491]): "The case of Pawling et al. v. United States has been cited as an authority against the position taken in this case; but it is not so, because the additional securities to be procured in that case were named on the face of the bond, and this fact is stated in the plea. If the name of Joseph Cloud appeared as a cosurety on the face of this bond, the estoppel would not apply, for the reason that the incompleteness of the instrument would have been brought to the notice of the agent of the government, who would have been put on inquiry to ascertain why Cloud did not execute it, and the pursuit of this inquiry would have disclosed to him the exact condition of things. In any case, if the bond is so written that it appears that several were expected to sign it, the obligee takes it with notice that the obligors who do sign it can set up in defense the want of execution by the others, if they agreed to become bound, only on condition that the other cosureties joined in the execution." And to the same effect see Fletcher v. Austin, 11 Vt. 447, 34 Am. Dec. 698; Bibb v. Reid, 3 Ala. 88; Sharp v. United States, 4 Watts (Pa.) 21, 28 Am. Dec. 676. See, also, recognizing the same principles, Herdman v. Bratten, 2 Har. (Del.) 396; Lovett v. Adams, 3 Wend. (N. Y.) 380; Ward v. Churn, 18 Grat. (Va.) 801, 98 Am. Dec. 749; Newlin v. Beard, 6 W. Va. 111, 121, et seq.; Stuart v. Livesay, 4 W. Va. 45; People v. Bostwick, 32 N. Y. 445; and Fitts v. Green, 14 N. C. 291. authority upon Wood to sign Stone's name | peared therein and delivered to the obligee by himself, and to deliver the bond in this without notice of any condition, as claimed insufficient and invalid form to the officer by the sureties in defense, that other surewho served the writ of replevin, so as thereby to make a valid delivery to such officer, and so that such delivery would inure to the benefit of this plaintiff. The circumstances of this case, involving the attempted delivery of a bond invalid and incomplete on its face, bring it clearly within the doctrine laid down by the Supreme Court of the United States, in Pawling v. United States, 4 Cranch, 219, 2 L. Ed. 601, which was a suit upon a bond given by a collector of internal revenue. In that case it appeared that the principal obligor and four sureties signed the bond; that two other sureties were named in the bond, but did not sign; that the bond, after signature by the four sureties, was by them delivered to Ballinger, the principal obligor, with the express condition that it should be executed by the other two sureties before delivery to the supervisor of the revenue; and that Ballinger, without authority and in violation of this express condition, delivered the bond. It was claimed by the sureties, and evidence was given to the effect, that the delivery upon said condition to Ballinger, the principal obligor, was merely a delivery in escrow; that Ballinger had no right to deliver the bond to the supervisor, until the other two sureties had signed. Upon demurrer to the evidence, it was held that evidence of the facts stated, if believed by the jury, would warrant a verdict that the bond was delivered on condition, and that, the condition not having been performed, the bond, as to the sureties, remains as in escrow. Again, in the case of United States v. Leffler, 11 Pet. 86, 9 L. Ed. 642, which was an action on a tax collector's bond, the evidence of the principal obligor, Curtis, was offered by the surety and admitted by the circuit court in support of the plea of non est factum, showing that the sureties executed the bond under the impression and on the condition that the principal obligor could procure the signatures of other persons to the same, and they were not so procured. The jury found a verdict for the defendants, and upon exceptions in the Supreme Court, raising the question of the competency of the evidence, it was held that, inasmuch as the principal obligor, Curtis, having suffered judgment to go against him in the suit, and having been arrested, and afterwards discharged from custody under the insolvent laws, prior to giving his deposition had been released by the defendants from all obligations to them as co-obligors on the bond in suit, he had no interest in the event of the suit, and his testimony was competent. And the judgment of the Circuit Court was affirmed. In the case of Dair v. United States, 16 Wall. 1, 21 L. Ed. 491, the court found that the bond was perfect on its face, and appar [6] 3. We are further of the opinion that the bond, without the signature of the principal obligor, is void, as to the sureties. In Bean v. Parker, 17 Mass. 591, 604, which was a scire facias against the defendants as sureties upon a bail bond given to release a defendant from arrest in a civil suit, it appears that the name of the defendant, as the principal debtor, appeared in the body of the bond; that the bond on its face purported to be executed by the defendant, and a seal was affixed, and a place left for him to sign opposite the seal, but that he did not sign the bond-only the signatures of his sureties appearing thereon. It was held that the bond was void as to the sureties; the court saying: "And it appears it was never signed nor sealed by Aiken, who should have been principal; the two de fendants being only his sureties, as appears by the tenor of the instrument. Now, we think it essential to a bail bond that the party arrested should be a principal. It is recited that he is; and the instrument is |