1851. July Term. Beery V. Homan's committee. At the May term 1844 Beery appeared and demurred to the complainant's bill; and assigned for causes of de murrer: 1st. That the bond executed in 1836 was executed without the authority of the court to which it is made payable, and against the order of the court: it purporting to be a new bond, and not a bond of indemnity to David Bowman, which the court had ordered to be given. 2d. That the names of John Rader and Joseph Kratzer, two of the obligors on the bond, being inserted in the body of the bond, and the name of the defendant being nowhere inserted therein, it is not binding on him. The court sustained the demurrer, and dismissed the bill as to the defendant Beery. And at the October term of the court Kratzer appeared and likewise demurred to the bill, assigning as ground of demurrer the first cause stated by Beery. This demurrer was overruled in May 1845; and the plaintiff was allowed to amend his bill and make Pickering and Bowman, the sureties to the first bond, parties defendants. In May 1846 the plaintiff filed a bill of review to the decree of May 1844, dismissing the bill as to Beery; and in October 1847 Beery filed his answer, relying upon the same grounds of defence upon which he rested his demurrer. In May 1848 the court directed a commissioner to state the accounts of the defendant Rader as committee of the lunatic. And these being returned, shewing the amount due from Rader to be 527 dollars 70 cents, with interest on 233 dollars 71 cents, a part thereof, from the 1st of July 1844 until paid, the cause was finally heard in May 1850, though the bill of review was not set for hearing, and there is no other indication that the case was heard on the bill of review, except that the cause was heard as to Beery, who was a defendant only in that case, along with the defendants in the original suit. Upon the hearing the court held that the bond executed in 1836 by Rader, Kratzer and Beery was a valid bond as to all of them, and that. the execution of it released and discharged the sureties in the first bond. And it was therefore decreed that the plaintiff recover against these parties the sum of 527 dollars 70 cents, with interest according to the commissioner's report; and the bill was dismissed as to the defendants. Pickering and Bowman's executor. From this decree Beery applied to this court for an appeal, which was allowed. Grattan, for the appellant. ALLEN, J. delivered the opinion of the court. The court is of opinion, that to constitute a valid bond of the party, the intention to bind himself must appear on the face of the instrument; that the signature and seal form a part thereof, and furnish prima facie evidence that the person so signing and sealing the bond intended to make himself a party thereto, and to be bound by the stipulations thereof; although the name of the party so signing, sealing and delivering the bond may not be inserted in the penalty or recited in the condition. The case of Bell v. Allen's adm'r, 3 Munf. 118, does not actually decide that the bond there offered in evidence was not the bond of the security, because his name did not appear in the body of the instrument, but it was rejected, when offered in evidence, on the ground of an alleged variance between it and the bond described in the declaration. If, however, it is to be inferred that the case was decided upon the ground that the bond. was invalid as to the surety for the cause aforesaid, the authority of the case is impaired by the decisions of this court in the cases of Bartley v. Yates, 2 Hen. & 1851. July Term. Beery V. Homan's committee. 1851. July Term. Beery V. Homan's committee. Munf. 398; Beale v. Wilson, 4 Munf. 380; Raynolds v. Gore, 4 Leigh 276; and was in effect overruled in Crawford v. Jarrett, 2 Leigh 630. In that case the name of one of the sureties, Shrewsberry, did not appear in the body of the writing; and there was no blank left for the insertion of other names; which has sometimes been supposed to show an intention not to exclude other parties who have signed the instrument. Yet the said security was held bound upon proof that he executed the instrument with the intention of becoming a party thereto. In the case of a sealed instrument declared upon, proof of the execution thereof be comes necessary by the plea of non est factum at law (or the answer in chancery, if a case in equity), putting that fact in issue. The circumstance that the writing declared on in Crawford v. Jarrett was not under seal does not affect the principle involved in this question. The intention to become a party to, and be bound by the instrument, is the fact to be determined in either case. In this case the execution of the bond by the surety, Abraham Beery, was not denied by the answer, and therefore, in the opinion of the court, no further proof of its execution was necessary. The fact of execution, however, is conclusively established by the order of the County court, from which it appears that the principal, John Rader, appeared in court, and with Joseph Kratzer and Abraham Beery gave the security required; which bond was duly acknowledged by the parties thereto, and ordered to be certified. The court is further of opinion, that as the order of the County court sets forth that the said John Rader appeared in court, and with the said Kratzer and Beery gave the security as required by the above order, and acknowledged a bond, which was ordered to be certified, the bond so acknowledged and certified constitutes a part of the record, and must be taken and construed with the order as shewing what was required by the court. By the condition of the bond it appears that the said Rader was required to execute a new bond, and in pursuance thereof executed the bond in the bill and proceedings mentioned; and this distinguishes the present from the case of the Greenesville Justices v. Williamson, 12 Leigh 93. In that case the bond not being mentioned in the minute of the court to have been required, executed, or accepted, could not be regarded as part of the record; and so the order itself was the true and only record; and the new bond found in the office could not be looked to or considered for the purpose of ascertaining what was done by the court. The principal in this case was summoned to appear at the next succeeding court to give counter security; whereupon he appeared forthwith, and as the condition of the bond shews, being required to execute a new bond, thereupon executed the bond in question, which was received, acknowledged in court, and ordered to be certified. Whatever mode of relief the party may apply for, it is within the discretion of the court, under the act 1 Rev. Code, chap. 104, § 38, to require counter security or a new bond: and upon the execution of the new bond the securities to the former bond are discharged. The court is further of opinion, that although it was irregular to proceed in the original'cause until, by a decree on the bill of review, the decree sustaining the appellant's demurrer had been reversed and annulled, yet the irregularity is one more of form than substance. The answer of the appellant applied as well to the bill. of review as to the original and amended bills, the cause was heard thereon, and the question of law presented by the bill of review was in effect adjudged by the final decree. The effect upon the rights of the parties is the same as if there had been first a formal order and decree on the bill of review, reversing and annulling the 1851. July Term. Beery V. Homan's committee. 1851. July Term. Beery V. Homan's committee. former decree, and then a decree giving relief on the original and supplemental bills. The court is therefore of opinion that there is no error in the decree, and it is adjudged and ordered that the same be affirmed, with damages and costs to the appellee. 1851. July Term. Lewisburg. LUSTER V. MIDDLECOFF & als. (Absent Cabell, P. and Moncure, J.*) August 26th. 1. The official bond of an executor contains in the penal part the names of the executor and several sureties, and there is no blank for the name of another; but it is signed and sealed by all those whose names are in the penal part, and also by another person. HELD: It is the bond of the person who executed it, though his name is not in the penal part. 2. A legatee being dead, a decree for the distribution of the estate should be in favour of his personal representative, and not of his 'distributée: This was a biil filed in the Circuit court of Botetourt county by the legatees of John Middlecoff against Jacob Carper, the executor, and John Luster, Absalom C. Dempsey, and others, as his sureties, for the purpose of obtaining a settlement of the executorial account and a distribution of the estate. They charged that the executor was hopelessly insolvent; and they filed as exhibits with their bill certified copies of their testator's will and the executorial bond. The bond reads: * The cause had been argued before his appointment. |