delivery'ot the documl3nt." 1 Whart. Ev. § 625; arid Code Civil Proc. (§ 778) says the same: "The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution or making, in a part material to the question in dispute, shall account for the appearance or alteration." The attestation of Stephens was made at the request of Owens, and this authorized him to attest the same, so far as Owens' signature is concerned. But the attestation being unqualified, the reasonable inference is that it included the signature of the other obligors, as well as Owens, and so it was doubtless intended. Weaver and his co-obligors who signed this bond and left it with the principal therein to deliver to the plaintiffs, thereby constituted the latter their agent for that purpose. BelZoni v. Freeborn, 63 N. Y. 389. Before the delivery was made this alteration took place. It consisted of an attestation which, for aught that appeared, was authorized and genuine. So far as the plaintiffs are concerned it was the act of Weaver and his co-sureties acting through the agent and co-obligor, Owens, prior to the delivery tq them of the writing. To hold that the value or admissibility of the writing as an item of proof or an instrument of e\i'idence is thereby impaired or affected in the hands of the plaintiffil, would be simply monstrous. The motion for a new trial is denied.
February 19, 1888.)
PluNOIPAL A1'fD SURETY-BoND TO SECURE ADVANCEB'-DEATH OF SURETY.
(Syllabus by the Oourt.)
Tho death of a'surety in a bond conditioned for the repayment of mODey advanced to the principal within a definite period or before notice to theob· ligee ()f withdrawalthereffom, does not terminatehiilliability, and his estate in the hands of'his administrator is liable foradvances made aftef his decease.
At Law. On motion for new trial. L. B. Cox, for plaintiffs. Edward B. Watson, for defendant.
D.I!:ADY, J. A motion for a new trial in this case was argued and submitted with the one in the foregoing case. The action was commenced by the plaintiffs, who are citizens of Massachusetts, against the defendant, as administrator of the estate of Hans Weaver, deceased, to recover .the sum of $4,475.90 on a bond executed to the plaintiffs by Philip Peters, Hans Weaver, Robert Phipps, as sureties, and W. F. Owens, as principal, on October 24, 1884, in the penal sum of $15,000, conditioned that if Owens shall pay on demand the
sums of money advanced to hitn by the plaintiffs, then the obligation to be void, and otherwise to remain in full force. '1'he bond also contains a stipulation to the effect that its duration might be terminated on notice to the obligee, after all liabilities thereunder were discharged. The bond purported to be signed by the obligors, "in the presence of Lafayette Owens and T. C. Stearns;" and the former, when called as a witness by the plaintiffs, testified that he. ,signed the bond. as a witness at the re.quest of Owens. but the other parties thereto were not present, nor did he see them sign the same. Stearns was not called. Weaver and Owens died, as stated in the foregoing case. and due demand was made upon their administrators for the balance due the plaintiffs, with similar results. The answer of the defendant was confined to a denial of ,any knowledge or information of the matters. in ,controversy. On the trial the jury found a verdict for the plaintiffs for the sum of 33,975.90, on which they bad judgment. The. motion for a new trial is ,based on the same grounds as the one in the Hall Case, ante, 104, with the addition ofthe following: It appears that some of the advances to Owens were made after the death of Weaver, 'and that no' notice was given by the administrator to terminate the undertaking of the deceased . 'rhecourt instructed the jury that Weaver's estate was liable in the hands of his administrator for these advances, and this instruction is claimed to be'erroneous, and a new trial asked therefor. On a careful examination of the authorities I have concluded that whenever the undertaking of the surety is for a definite period, as for the conduct of an officer during his term of office, or for the repayment of advances made to the principal in the bond until notice is given the obligee that the liability is terminated, the estate of the surety in the hands of his adn,linistrator is. answerable for any default of the principal occurring after his death; il.l1dthis is especially so where', as in this case, the surety bound himself, his. executors and administrators" for the performance of his undertaking. Insurance Co. v. Davies, 40 Iowa, 469; Green v., Yoltng, 8 Greenl. 14; v. Butler, 10 Rich. Eq.143; Moorev.Wallis, 18 Ala. 458; Hightower v. Moore, 46 Ala. 387; Mowbray v. State, 88 Ind. 327. The motion is denied.
BEALL V. CITY, OF LEAVENWORTH.
V.CITY OF LEAVENWORTH.
(Oircuit Vourt, D. Kansas. February 29, 1888.)
JunGMENT--'-AoTIONS ON-DEATH OF OWNER-LIMITATWflS.
In Kansas a judgment does not become dormant at the death of the owner, and an action brought thereon by his executor, morc th il.::J. one year after his death, but within one year after it became dormant, is not barred by Code Civil Proc. § 440, which provides that a judgment can only be revived, or made the basis of an action, within one year after it becomes dormant.
At Law. Action on judgment. Ros&ngton, Smith &: Dallas, for plaintiffs. Wm. C. Hook, for defendant. FOSTER,J. This is an action brought by John A. Beall and Charles W.Sloane, executors of Henry W. Benham's estate, on two judgments recovered by their testator in this court against the city of Leavenworth. Thefirst judgment was recovered on the 1st,day of December, 1877, for and costs,which judgment was reviVed on the 29th day of NolE82. The second judgment was recovered on the 30th day of Nove:mber, 1880, for $3,159.11 and costs. Benham died about the 9th daYiof June, 1884, and shortly thereafter letters tEstamentary were issued to his executors, and theybrQught this suit on the 18th day of December, 1885. Defendant sets up as answer to plaintiffs' claim that it is barred by the limitation of the statute for reviving or instituting suit on a judgment. At the time of Benham's death, neither judgment had become dormant, under section 445 of the Civil Code of Kansas, but it seems the latter judgment had become 20 days before this suit was brought, unless proceedings in mandamUs had the effect to save it, as would the issuing of an execution. However that is not matRrial. If the testator were alive, and had instituted this suit, there could be no question but he couldmaintll:in it. Burnes v. Simpson, 9 Kan. 658; Kothman v. Skaggs, 29 Kan. 6; Baker v. Hummer, 31 Kan. '325, 2 Pac. Rep. 808. In the cases above cited, the supreme court has repeatedly held that a judgment creditor may, if he choose, make his judgment the basis of an action, (within the time limited for a reviver of the same,) instead of reviving by motion and notice under the Code, It appears from the terms of the statute, as well as decided that this can only be done within a year, without the consent of the opposite party. Scroggs v. Tutt, 23 Kan. 181; AngeU v. Martin, 24 Kan. 334. Now,Jet us see what may be done in case of the death of a party to a judgment. Section 439, Civil Code, reads as follows: "If either or both parties die after the judgment and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same in the same manner as prescribed fOl' reviving actions before judgment, and such judgment may be rendered and execuas might PI' ought to be given or awarded against the representatives. real or personal, or both, of such deceased pal'ty." v .34F.no.2-8 I