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8 Cow. 118

Ex parte Kerwin

New York Supreme Court

Decided February 15, 1828

New York Supreme Court · decided 1828-02-15

One Polly appealed from the judgment of a justice against him, (P.,) at the suit of the relator, to the 0. P. of Washington county. The appeal bond was drawn in blank as to the recital of the judgment, and executed by Polly and his surety, the former giving parol authority to his surety to ascertain from the justice the amount of the judgment, fill up the blank accordingly, and deliver the bond for both, which was done.

Good law ✅— No negative treatment on recordhow we know

Decided 1828-02-15

How this case has been cited

Cited by 4 later decisions — most recently January 1883

4 state decisions

201828183018401850186018701880decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Curia.

¶1We think the. bond was regularly executed upon competent authority. This is much like' the case, before Ld. Mansfield, of Texira v. Evans, cited by Wilson, J., in 1 Anstr. 228. There the defendant - wishing to borrow money, executed a bond with blanks for the obligee and sum, giving his agent power to insert the name of the lender and sum lent, both of which were then uncertain. This was done, and the bond held good on non est factum pleaded. That case is recognized as law, in Woolley v. Constant, (4 John. Eep. 60,) by Thompson, J., delivering the opinion of the court. [1]

¶2Motion denied.(a)

¶3 Vid. Ex parte Decker, (6 Cowen, 69.)

¶4 A 7 ritten instrument was declared to be a good bond, with collateral *118con^’on) though obligor’s name was not signed opposite the seal, but between the penal part and the condition; and the name of the obligee was signed at the foot of the condition with the seal annexed, both signatures.being attested by the same witness. Argenbright v. Campbell, 3 Hen. & Munf. 144.

¶5The court decided that a paper with blanks for a penal bond, the condition only filled up with the sum, but not the name of the obligee, dated and signed by the defendant, should be perfected and set up as a good bond. Gray v. Rumph, 2 Hill, 8.

¶6A bond signed in blank, may be afterwards filled up in a material part, by the express authority ef those who are to be bound by it, and will be as valid as if filled up before it was executed; such authority may be by parol. An authority to fill up and perfect the bond, is an authority to redeliver it also. Gibbs & Labuzan v. Frost & Dickinson, 4 Ala. Rep. 720.

¶7An authority to perfect a bond by filling it up, given by parol, may be revoked in the same manner, and if revoked, before the bond is perfected, the authority to perfect it is at an end. Ib.

¶8A forthcoming bond signed in blank, and afterwards filled up with a condition to deliver property which had no existence, is wholly without consideration as to the sureties, and creates no obligation on their part, legal' or moral, to pay it. Long v. United States Bank, Freeman’s Ch. Rep. 315.

¶9A forthcoming bond, signed, sealed and delivered to the sheriff in blank, to be subsequently filled up by him, is void. Dickson v. Hamer, Freeman’s Ch. Rep. 284.

¶10An addition to a bond, made by the consent of both parties to the bond, does not avoid it. Berry v. Berry's heirs, 6 J. J. Marsh. Rep. 487. Amer. Ch. Dig., p. 346, No. 69, et seq.

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