
    In Bank.
    Dec. Term, 1846.
    The State of Ohio, for the use of Rosett & Bicking, vs. Caleb Boring and others.
    The penalty of an official bond cannot be inserted by a third person after the execution by the obligor, in his absence, "without an express authority under bis hand and seal.
    This is an Action of Debt reserved in the County of Inciting.
    The action is brought against a sheriff and the sureties upon his official bond. The plea of ñon est factum has been filed, and, by the sureties, an affidavit of the truth of the plea is appended. The case is submitted for the consideration of this Court, upon the following agreed statement of facts:
    In this case, the following facts are agreed: That the said Caleb Boring was elected sheriff for said county of Licking at the October election, in the year 1840; that the said Caleb Boring, after his election, on the 30th day of October, 1840, applied to the other defendants, John Yontz, Samuel Parr, Lewis Boring and James Hazelton to become his securities in his official bond, as sheriff, and, thereupon, a paper writing was signed and sealed by said Caleb Boring and the said John Yontz, Samuel Parr, Lewis Boring and James Hazelton, of which, when so executed, the following is an exact copy, viz:
    “ Know all men by these presents, that Caleb Boring-,
    are held and firmly bound unto the State of Ohio, in the penal sum of dollars, for payment of which well and truly to be made, we bind ourselves, our heirs executors and administrators jointly and severally, firmly, by these presents. Sealed with our seals, and dated this day of October, in the year of our Lord one thousand eight hundred and forty-
    “The condition of this obligation is such, that whereas, the above bounden Caleb Boring has been, by the qualified electors of Licking county, in the State of Ohio, duly elected Sheriff of said county; Now, therefore, if the said Caleb Boring shall well and truly perform all the duties of the said office of Sheriff, and faithfully pay over all moneys that may Come into his hands, as such Sheriff, then this obligation to he void and of no effect otherwise to remain in full virtue, both iii law and equity.
    “CALEB BORING, [seal]
    “ JNO. YONTZ, [seal.]
    « SAMUEL PARR, [seal.]
    “ LEWIS BORING, [seal.]
    “JAMES BAZELTQN, [seal.]
    “■Signed, sealed and delivered in the presence of
    “ J. JoHifaoK,
    “ W. B. Morris,
    “ Jabíes Orb.”
    That the paper writing, being so executed, was left in the hands of said Caleb Boring, who, subsequently, on the 6th of November, 1840, presented the same to the Court of Common Pleas for said Licking county, for, their approval; that, thereupon, the Court directed the clerk to fill the first blank with the names of said sureties, and the second blank with the words, “ fifteen thousand,” and the third blank with the word, “ thirtieth,” and, threupon, ordered said bond to be filed ; and the same was, by the Court, accepted and approved as the official bond of said sheriff.
    If the Court shall be of opinion that the plaintiff is entitled to recover, and that the said paper writing is the bond of the defendants, it is agreed that judgment be rendered, as of the first day of this term, for the penalty, with an award of execution for the sum of $ 1,013..87, the amount due inequity ; but if the Court should be of opinion, with the défendants, that the said paper writing is not the bond of the defendants, then a judgment shall be rendered for the defendants, upon that finding.
    It is further claimed by the plaintiffs, that at the time the paper writing was executed by the sureties, one of them asked, in the presence of the others, “ what the penalty would be.” to which some one present replied, that “It would probably be the same as the penalty in a former bond ” given by the same Boring at a former election; and that still another person also said, it would make no difference, as Boring (the sheriff,) would do his duty at any rate ; and the plaintiffs also claim, that the penalty of said former bond was $15,000. The matter so claimed is not admitted by the defendants; but it is agreed, that if the Court should consider it material, the case is to be sent back for trial.
    
      II. II. Hunter and S. D. King, for Plaintiff.
    The naked question presented in this case, is whether, in the absence of all fraud, and when the intention of the parties has actually been complied with, the bond shall be held as absolutely void; whether the law has a higher regard for unmeaning technicality than it has for the great and important ends of justice.
    The sureties knew for what object the bond was given, and that the law had fixed the limits of the penalty to, be named by the Court. Hence, when they signed their names, and delivered the paper in blank to the sheriff, to be used as his official bond, they, by implication, authorized the sheriff to fill the blank with the sum named by the Court.
    If the blank had been filled in the presence of the sureties, and by their direction, or with their assent, it will not be pretended but that they would be bound. What is the difference, in principle, whether the signing was done in their presence, or elsewhere by their direction and consent? Is it not equally their act, if done'in their absence, pursuant to authority given by them?
    The essential inquiry is, whether authority was given to do the act. This is always a question of fact, and may be proved in any way by which a fact may usually be proved, according to the rules of law.
    It may be, therefore, proved by written evidence, sealed or ¡not sealed, or by parol testimony, direct or circumstantial.
    In this case the evidence is circumstantial. Certain facts are admitted, from which the inference of authority given, or intent on the part of the sureties to have the blanks filled, is inevitable.
    For instance, it is a part of the agreed case, that the bond was delivered to the sheriff, to be used as his official bond.
    Now, that could not be done without filling the blanks according to the order of the Court as to the penalty, and according to the truth as to the names and date.
    It may be argued that good policy would forbid the sustaining of this case as a precedent. I see no difficulty about it. Here the facts are clear and certain; and, for one, I think it much more politic, as well as by far the more just in the particular case, to hold these parties, by a bond fairly entered into, according to their actual intent, than to declare the bond void. No injustice can be done on the one hand, whilst immeasurable mischief may be the consequence on the otherl Who can tell how many bonds, official bonds, in the State of Ohio, have been executed in a similar way? I believe it has been pretty generally customary. Indeed, it seems to be almost necessary, in all those cases of official bonds, the amount of the penalty in which is to be fixed by the Court. Either all of the sureties who may reside in remote parts of the county, must come up to the county seat when the bond is offered for acceptance, or the Court would have to convene twice ; once to fix the amount of the penalty, and again to approve of the sureties and accept the bond. Now, there is no good sense in requiring any thing more than that the Court should be assured of the fact that the parties purporting to have executed the bond, did so in. fact, understanding the object. Such has been the custom of the country, known to most business men.
    Such bonds have been received and relied upon as the official bonds of the officers; and it would be a hardship indeed if they were not holden obligatory.
    There are cogent reasons why a bond like this, an official bond, should not stand on the same footing with private bonds, in regard to their validity, for the reason or on account of which the validity of the bond is questioned in this case.
    
      It is this: These official bonds are not, like private bonds, delivered to the obligee, or party whose interests are to be protected by them, but are delivered to, accepted, and approved, by some public officer charged with that duty. In the case of private bonds, the obligee may, at the time of delivery to him, by inquiring into the facts, see that the execution has been regular; and if he do not, it is his own negligence.
    But in the case of official bonds, the parties whose rights are intended to be protected by them, have it not in their power to take care of their rights, in regard to the due execution of the bond.
    The official bond is received; upon its face it appears regular enough; it has been accepted and approved by the Court; the officer has been admitted into the exercise of his office, and the interests of strangers are intrusted to his hands. All this, it is fair to presume, has been done with a knowledge of its progress, by the persons whose names appear to the bond as sureties. Now, if either must suffer, the sureties or the stranger, which should it be ?
    One further suggestion, and I will close.
    This is a joint action against the sheriff, whose execution of the bond is not denied, and the other defendants as his sureties.
    I ask, how can judgment be rendered against the plaintiff? Would not such a judgment be a bar to any action against the sheriff, alone, on the bond ?
    This is, I believe, the exact question, in principle, on which the case of Farrington v. Myers and others, — Ohio Rep. —, was grounded.
    It is true, in that case, the ground on which the surety sought to be acquitted was different, being for matter arising subsequent to the making of the note. But this does not vary the reason.
    Upon the main question, I beg leave to refer the Court to the authorities collected in the 1st vol. of Smith’s Leading Cases, (Phila. ed. 1844,) pages 595-6-7-8-9, at the top. The whole doctrine is examined, and the authorities brought together in that place.
    The attention of the Court is also invited to the following cases: Ayres v. Harness, 1 Ohio Rep. 173; Bank of St. Clairsville v. Smith, 5 Ohio Rep. 137, and Smith v. Crooker, 5 Mass. Rep. 538.
    
      Henry Stanbery (Attorney General) and James R. Stanbery, for Defendants.
    The plaintiffs ask the Court to say, that the mere signing and sealing of a paper purporting to be a sheriff’s bond, and leaving it in the hands of the sheriff, is authority of itself, to the sheriff or the Court, to make it a valid bond, by inserting a sum, wholly unknown and unascertained, when. the paper was executed.
    There is no .case, English or American, which goes that length.
    I will first call the attention of the Court to the decisions in our own State.
    
      Ayres v. Harness, 1 Ohio Rep. 368, is the first in order. Harness, being indebted to Ayres in a sum not then ascertained, wrote his name and affixed his seal to a blank, and delivered it to Ayres, with express authority to write over it a note for the amount which should be found to be due. This was accordingly done by Ayres. The Court held the bond void.
    
      Bank of St. Clairsville v. Smith, 5 Ohio Rep. 222. This was the case of a mere money bond, which, when executed by Smith, was in blank for the amount, and so left in the hands of a coobligor, who was to fill the blank with a sum not over $200. The coobligor did, however, fill the blank with $700; and, after that, it was discounted by the bank, without any knowledge of the facts. At the trial on the circuit, the Court, relying on the case of Peroling et al. v. The United States, 4 Cranch, 219, held the bond void in the hands of the bona fide holder. The Court, on the motion for a new trial, held as follows :
    “In that case (Peroling v. The U. States) the bond was 4 not complete when signed by a part of the obligors; on its 4 face it contained evidence that it was to be signed by others, 4 who had not signed it. Besides, it was not a bond direct for 4 the payment of money, but for the performance of a collateral 4 condition. The case turns now upon the question, whether 4 notes under seal, made for the payment of money, in Ohio, 4 are to be assimilated to commercial paper, or to common law 4 bonds. If the former, then it is well settled that- he who re-4 poses the first confidence must bear the ultimate loss; and we 4 believe it ought to be so. When notes under seal, for the 4 payment of money at a day yet to come, complete upon their 4 face, are negotiated in good faith, they should be treated as 4 commercial paper, and all the incidents of such paper should 4 attach to them. The statutes of the State give them a nego4 tiable character, and we but follow their indication in so re-4 garding such notes.”
    It is clear that this- case proceeds upon the distinction between .bonds for money, having all the characteristics of' commercial paper, and bonds for , the performance of collateral conditions, and only sustains the filling a material blank in such money bond, in favor of a bona fide holder, who takes it after the alteration, when it is complete upon its face. Ayres v. Harness was a money bond, belonging to the class of commercial paper, but ,was not overruled, by Bank of St. Clairsville v. Smith, for the reason that it was not complete on its face when Ayres took it.
    
      Spencer v. Buchanan, Wright’s Rep. 583, was an action on a bail bond, in which was a blank as follows: 44 Three hundred and fifty-.” The declaration set it out with an inuendo, 44 thereby meaning three hundred and fifty dollars.” On demurrer, the Court was against the plaintiff. This case shows the materiality of a blank for the amount, and that no recovery can be had by any averment as to the words which were intended or omitted by the blank.
    
      The foregoing are all the cases which have been before this ^'ourt having any bearing on the question in this case.
    I will now proceed to examine the cases relied upon by the plaintiff’s counsel, and these are Smith v. Croher, 5 Mass. Rep. 538, and the cases collected in 1 Smith’s Leading Cases, 597.
    
      Smith v. Croher was debt on the bond of a collector for taxes, with a blank for the name of the surety, who had signed and sealed the bond. Parsons, C. J., in delivering the opinion of the Court, holds the bond to be good, and assigns two reason : First, that the surety must be taken to have assented that the blank should be filled with his name, as he had signed it as a coobligor; and secondly, that the alteration or addition was no way material, as the surety would have been just as fully bound if the blank had not been filled up.
    It is clear this case in Massachusetts can only be held to be an authority for the filling of an immaterial blank; and what is said as to filling the blank in the absence of the obligor, must be understood in reference to such an addition.
    The next case relied upon is Hunt v. Adams, 6 Mass. Rep. 519. That was a money bond, and the blank filled was wholly immaterial, and such an one as the Court said the law would have supplied.
    
      Sigfricd v. Levan, 6 Serg. and Rawle 308, was a money bond, which was complete when it came to the hand of the payee.
    
      Stuhl v. Berger, 10 Serg. and Rawle 170, was also a money bond, with a blank for the name of the payee, and authority given to coobligor to fill it up.
    Now it is quite clear that none of these cases furnish a ground for sustaining the bond in the case at bar; for the alteration was most material, and the obligation was not of a commercial character, but for the performance of collateral conditions. So that even if express consent to make this addition could be made out, it would not, according to the doctrine above referred to, sustain the bond. However that may be, there is no pretence of any express consent in this case.
    
      The agreed facts do not make it necessary to consider how this case would stand on proof of express consent to fill tills blank, or express ratification afterwards. There is no pretence of such express consent here; nor is it even claimed that the plaintiff can prove such assent or ratification. What is said at the close of the agreed facts, as to the proof the plaintiff’s claim they can make, if it amount to any thing, would only tend to show an implied consent.
    The case, then, stands upon the following point: Whether the filling of a material blank, in an obligation for the performance of collateral conditions, in the absence of the obligors, and without evidence of express consent, and, we might add, of implied consent, or of subsequent ratification, would be binding on mere sureties.
    There is no case that comés up to the affirmative of that proposition ; and the furthest that courts have gone, even with regard to mere money bonds, is to establish material additions upon proof of express consent. 1 Smith’s Leading Cases, 597.
    I will only refer to one more authority, and that is of recent date, Graham v. Holt, 3 Iredell 300. The book is not to be found here, but I extract the note of the decision as it is given in the American Law Magazine, for April, 1844, No. 5, p. 176. “Yerbal authority to fill a blank in a bond for the sum is not £ good. A paper writing, purporting to be a bond, signed and £ sealed by a party, in which a blank is left for the sum to be £ afterwards inserted, which blank is afterwards filled up and £ the paper delivered, not in the presence of the party signing, ‘ nor by any person having authority from him under seal, is £ not the bond of the party so signing and sealing.”
    But it is argued, on the other side, that this bond, so altered, ought to be held binding on these sureties, because, in executing it they must have intended to be bound. That is a strange doctrine; for it would authorize any alteration or addition, to make a good bond for a party who had failed to make a good one for himself.
    
      When this bond left the hands of these securities, it was imperfect and created no liability. The Court, in their absence, and without their sanction, ordered the sum of $15,000 to be added to it, and then approved it as a sheriff’s bond. The bond so approved was not the bond of these defendants, and the Court had no authority to make a bond for them. The function of the Court was to approve an existing obligation, not to create a new one.
   Birchard, L

The agreed statement presents the naked question whether, after the execution of a sealed instrument, a material blank can be filled by a third person, in the absence of the obligor, and without his express authority, under hand and seal. An immaterial blank, as of the date, or the name of the obligor, may be inserted. Such interlineations do not affect the obligation. It is valid without them. But, without the sum is inserted, the bond is of no validity. In the case at bar, the obvious intention of all the defendants was, that this bond should be filled up by some one, and that it should be used for the purposes to which it was applied. This state of facts presents strong reasons why the instrument should be sustained. It makes a case of great hardship if it cannot be sustained. Looking very much like adhering to form, at the expense of justice. What originated the distinction between sealed and unsealed instruments in this respect, ■ is a question that is not useful now to inquire into. There are many rules of established law for which, at this day, it would be difficult to assign a good reason, were the question presented for the first time whether they should be adopted or not, and yet, because they have been rules for centuries, have become known, and have been acted upon in all the varied transactions of business, no prudent jurist would be willing to see their authority shaken for light causes. Where the law is uncertain, no man knoweth when he is safe. And it is, therefore, generally better to adhere to well settled, long established and well understood rules of Saw, though some small inconvenience arise from them, until the supreme power of the State sees proper to change them. A legislative enactment may make any change in the common law that even convenience requires, and it is to be presumed that the change will be made whenever the Legislature become satisfied that a rule of the common law works public inconvenience. Courts of justice can scarcely ever anticipate the full effect of a change made by them. In the case before them, they may possibly be able to say, the departure from the law subserves the ends of justice. They may prove that it will operate well in future transactions, but how it may affect past transactions, what may be the extent of the mischief of its retrospective operation, is often more than would be even imagined. For these reasons, we-look to the law for a solution of this question — and we find the course of decision uniform, in this Court, in the Courts of our sister States, of the United States, and Great Britain. They all concur in holding that such a blank could not be filled as this was filled. There is not a case to be found that supports this bond. The researches of counsel have superseded the necessity of any quotation on our part for authority to condemn the practice.

Judgment fan' Defendant.  