
    *Preston v. Hull.
    June Term, 1873,
    Wytheville.
    Bond — Blank for Obligee — Filled in by Agent under Parol Authority. — A paper perfect as a bond, except that there Is a blank for the name of the obligee, is signed by P and M, and put into the hands of M for the purpose of borrowing money upon it. It is expected that F will lend the money, but if he does not it may be gotten from some other person. M obtains the money from H, and fills the blank in the paper with the name of H and delivers it to him. This is done in the absence of P and without his knowledge. It is not the bond of P.
    This was an action of debt upon a bond in the Circuit court of Smyth county, brought in January 1870, by D. D. Hull against Charles H.‘ C. Preston and B. F. Mantz. The suit was abated as to Mantz. The paper declared on was signed and sealed by Preston and Mantz, and bound them to pay to D. D. Hull sixty days after date, the sum of six hundred dollars.
    Preston appeared and filed a plea of non est factum, accompanied by an affidavit stating the facts on which he relied to support the plea. He also pleaded payment by Mantz.
    The facts material upon the question decided by this court, are substantially as follows: B. B. Mantz was indebted to Preston for the purchase of cattle to the amount of about six hundred dollars; and informed Preston that he did not have the money, but that he could raise the amount in Marion if Preston would execute a note for that amount; Mantz said he thought he could get it from Governor Payette McMul-lin. Preston *and Mantz then signed the paper sued on, in which there was a blank left for the name of the payee; and it was left with Mantz for the purpose aforesaid. Preston said it was his impression that Mantz was to get the money from McMullin; hut he was not instructed not to get it from any one else; and the blank was left in the paper for the name of the person from whom he should get the money. But Preston never did deliver the note to Hull, nor know that he had discounted it, until after the failure of Mantz, and the execution of a deed of trust by him; when he was informed by Hull that he held the note shortly after it fell due. And Preston thought the note he had signed and handed to Mantz had been destroyed; and he never received any money upon the bond or derived any benefit from it.
    After the evidence had been heard, the plaintiff asked the court to instruct the jury as follows: If the jury shall believe from the evidence, that the defendant C. H. C. Preston, executed the single bill in the declaration in this cause mentioned, and delivered the same to his co-obligor B. P. Mantz with a blank in said single bill, where the name of the obligee D. D. Hull the plaintiff, is now inserted, with the understanding that the said B. P. Mantz was to procure money on the said single bill, and to write the name of the person from whom the money should be procured, in said blank as obligee, and to deliver the said single bill to such obligee; and if the jury shall further believe from the evidence, that the said B. P. Mantz procured money from the said D. D. Hull, the obligee aforesaid in said single bill, and wrote the name of the said D. D. Hull in the single bill, and delivered the same to the said D. D. Hull; then the said single bill is binding upon the said Preston, and the jury must find the issue for the plaintiff.
    *The defendant objected to the courts giving this instruction: but the court overruled the objection and gave it: and the defendant excepted.
    The defendant then moved the court to instruct the jury as follows:
    If the jury shall believe from the evidence, that the paper sued, on as the bond of the defendant Charles H. C. Preston, was placed in the hands of B. P. Mantz to raise money from P. McMullin on, and that when it was so placed in his hands, it was blank as to the name of the payee, and that | it was afterwards filled up with the name of D. D. Hull, without the knowledge, consent or authority of the defendant Preston, then it is not his deed, and they should find for the defendant Preston.
    The court refused to give this instruction in the form offered; but gave it with the insertion of the word “only” after the word “money.” To which opinion and ruling of the court the defendant Preston excepted.
    The defendant applied for another instruction, which was refused; and he excepted : but it is unnecessary to state it.
    The jury found a verdict for the plaintiff for $600 and interest: And the court rendered a judgment accordingly; having overruled the motion of the defendant for a new trial; to which Preston excepted. And upon his application a writ of error and supersedeas was awarded by this court.
    J. W. & J. P. Sheffey, for the appellant.
    Gilmore, for the appellee.'
    
      
      Bond — Filled in by Agent under Parol Authority.— See Rhea v. Preston, 75 Va. 757; Nash v. Fugate, 24 Gratt. 202, and foot-note ; Penn v. Hamlett, 27 Gratt. 337, 342 ; Keen v. Monroe, 75 Va. 428.
      In Lyttle v. Cozad, 21 W. Va. 200, the court said: “There are also older cases in Virginia, in which the courtheld, thatwhen an instrument was incomplete on its face and indicated that others were intended to sign it, it was not binding on those who did sign it, although the condition may not have been known to the obligee when it was delivered to him. See Ward et al. v. Churn, 18 Gratt. 801, and Preston v. Hull, 23 Gratt. 600.” See also, on this subject, 2 Am. & Eng. Enc. Law, p. 249 ; 4 Am. & Eng. Enc. Law (2d Ed.) 642.
    
   STAPLES, J.

A bond is a deed whereby the obligor promises to pay a certain sum of money to another at a day appointed. % Black. Com. 346. An obligor and obligee are essential to the existence and constitution *of such an instrument. It is not indispensable that the party to whom the promise is made should be mentioned eo nomine, that his name of baptism and sir-name shall be given, but he must be in some unmistakable manner designated in the instrument. A writing, though executed with all the solemnities of a deed, without such obligee, is a mere nullity. It imposes no liability upon the party issuing it. It confers no rights upon him who receives or holds it. It is not simply. an imperfect deed: it is no deed at all. It only becomes a deed when the name of an obligee is inserted, and delivery made by the ob-ligee or by some one legally authorized by him. If .the blank is filled by an agent, then the agent as certainly makes the deed as though the entire obligation had been written, signed, sealed and delivered by him. His act binds a principal not before bound. It creates a contract having • no previous existence. It is true the act in question is merely the insertion of a name. Still, its effect is to impart vitality to a piece of waste paper. It calls new rights and obligations into existence. It is followed by all the consequences resulting from the execution of the most solemn instruments.

The argument sometimes advanced, that there can be no danger or difficulty in conferring the power by parol, when nothing remains to be done but the insertion of a name to render the instrument complete, does not meet the real issue. The question is not one of trust and confidence reposed, but of power conferred. In the numerous and diversified transactions of mankind agencies of the gravest character are often created by parol. A partner may bind his co-partner to any amount, for any matter within the scope of the partnership, by a note executed in the partnership name. The authority of an agent to sell the land of his principal may be conferred ^without writing, and the latter may thus be bound irrevocably for his entire estate. In the execution and endor-sation of negotiable paper powers may be and are often conferred by parol upon agents involving liabilities to the amount of millions. The law recognizes such agencies as essential to the commerce of the world. Why may not the agent, in all these cases, impose the same liabilities by deed, in the name of his principal? If he may sell the land, fix the price, and agree upon all the terms of the contract, why may he not perform the mere formal act of executing the conveyance? The answer is, the authority of the agent must be commensurate with the act he performs. The stream can never be higher than its source. If the act of the agent is the execution and delivery of a deed, his authority must be by deed. It does not matter how much of the instrument may have been written by the principal, if it is a mere nullity when it leaves his hands, and only becomes operative by act of the agent; upon every principle of sound legal reasoning the result must inevitably be the same. Whenever the agent undertakes to bind his principal by an act, his authority, in point of dignity, must be co-equal with the act. The question is not, therefore, whether it is expedient that a mere parol agent shall have the power to fill the blank with the name of an obligee; but whether it can be done and sustained without violating well established principles of law.

A little reflection will show that these principles are not without substantial reasons to support them. At common law a sealed instrument imposed peculiar liabilities. It was not affected by any statute of limitations. It operated as an estoppel. The obligee was not permitted to aver any want of consideration to avoid it; nor could he defeat an action at law therein by showing any failure of title, or breach of contract, or mistake, or *fraud in the procurement of the bond. It is true that some of these obstacles have been removed by statute, and parties may now defend themselves in the common law courts upon grounds purely equitable; but both in Virginia and in England sealed instruments confer rights and impose obligations, which can never grow out of the execution of any mere parol contracts. It is reasonable and just, therefore, that a party setting up a deed, and seeking to enforce it, shall be prepared to show, if necessary, that it is the act of the grantor himself, or of some one empowered by an instrument of equal dignity with the deed.

When the writing which is the subject of this controversy left the hands of Preston, it was not a deed. It certainly did not constitute a contract. It was, indeed, of no more value than the paper which contained it. When it passed into the possession of Hull it had in some way become a deed and a binding contract, according to the theory of counsel. How did it so become a deed? Certainly not by the act of Preston, as he was then absent, and was not even informed of the transaction until some time afterwards. It ‘was the act of the agent which gave efficacy to the paper and created an obligation by deed not before in existence.

At the time Preston signed the paper it was the expectation of both Mantz and Preston that the money could be obtained from Governor McMuliin; but failing in that, it may be reasonably inferred it was expected to borrow it elsewhere; and authority was given to Mantz, the agent, to fill the blank in the bond with the name of the person making the loan. Governor McMuliin did not advance the money, as was expected, and the arrangement was made with the plaintiff Hull, and his name inserted as obligee in the bond. The agent did not simply fill the blank with a name previously ^agreed on by Preston ; but he called into existence a new and unknown party, and bound his principal by a contract with him. In this respect the case is much stronger than that of the simple insertion of a name already declared by the obligor. A deed must exist before it can be delivered — that is clear. If an obligation, complete and perfect, be delivered by the obligor to a third person for the use of the obligee, it is the deed of the obligor immediately. The deed only becomes inoperative by the refusal of the obligee to receive it. In such case the delivery is the act of the principal or obligor and not of the third person or agent. Skipwith’s ex’or v. Cunningham, 8 Leigh 271. Whenever, however, the principal commits to the agent an instrument that is not complete and operative at the time, with a blank for the obligee or the sum to be paid, to be filled by the agent and according to his discretion, the act of mind, the disposing power, which are always essential and efficient ingredients of the deed, are the agents; and the instrument takes effect by his act of execution and delivery, and is binding upon the principal or not according to the authority conferred on the agent.

If Preston had endorsed his name upon a piece of blank paper with scrolls attached, and the agent had afterwards added the entire obligation under the previous verbal instructions of Preston, the agent in that case, would have performed an act of no greater dignity than he has in this. The trust reposed may be greater in the one case than in the other, but the result is the same. In each case the principal becomes bound by an obligation created by act of the agent.

If the name of the obligee may be inserted, why may not the sum also; and if these may be supplied, why not the mere formal parts of the deed. If we once depart *from the rule, how is the line to be drawn consistently with the preservation of any rule at all. If we say that the name or sum may be inserted by the agent, will it not lead us inevitably to the doctrine that the entire deed may be executed by the agent also. We shall be carried on step by step, if we mean to be consistent, until we have destroyed all the well settled distinctions between sealed and unsealed instruments.

It is asked what good purpose is to be observed by these distinctions. It is sufficient to say that they exist; having their origin in well established principles. In the language of Chief Justice Marshall, they have taken such firm hold of the law they can only be removed by the power of legislation.

We must bear in mind that one change in the law often involves the necessity of others. Much mischief ensues, many embarrassments often occur in the administration of justice, from the disregard of some well established rule of law intimately identified by a long course of decisions, with others which in their turn are interwoven with the entire framework of. society. If deeds are to be placed in the particulars now contended for, upon the same footing with parol contracts, there are other distinctions between them that ought to be abolished. The same act of limitation should apply to a bond as to a promissory note. The defendant should be permitted to show a want of consideration in one case as in the other. And above all, sound policy it seems to me, requires that the whole technical doctrine of estoppel by deed should be greatly modified, if not entirely abolished.

It has been suggested that the doctrine of estoppel in pais might apply to a transaction like this; and the obligor estopped, to deny the bond. It was said by-Judge Gibson, of the Supreme court of Pennsylvania, in relation *to a writing executed in blank, and afterwards filled by a parol agent, if it could be sustained at all, it would be upon the ground of estoppel in pais. But, so far as I am informed, he is the only Judge who has suggested the idea. No reference is made to it by Baron Parke or Chief Justice Marshall, or Judge Cabell, or by the Supreme court of the United States, or that of New York, in the cases before them. This proposition carried to its legitimate results, will show that a mere parol agent may always bind the principal by a deed. If the obligor who trusts his agent with a writing with blanks as to the names or sums is estopped to deny that it is his bond, when the blanks are afterwards filled by the agent, so must also the obligor who trusts his agent merely with his name and a scroll attached, when the entire obligation is afterwards added. In truth the doctrine of estoppel has no application to the case. The party advancing his money is put on his guard by the face of the paper. He sees that it is not a deed, and he is bound at his peril to inquire into the authority of the agent to make it a deed. He is presumed to know the law. He must know that the agent’s authority must be by deed. If he is misled, it is by his own folly and the act of the agent. It cap not be justly said that he has been deceived by the party whose signature is attached to'the writing.

Having thus considered the principles affecting the case, let us see how stand the authorities, bearing upon the question.

In England one of the earliest cases is that of Texira v. Evans, decided by Eord Mansfield. We have no contemporaneous report of the case. All our information is derived from the statement of an English judge, made long after Texira v. Evans was decided. However, the case was questioned. at an early day by the most eminent judges and lawyers, and has been long since entirely ^overruled in the English courts. I will not attempt to comment upon or even cite the various cases. A brief reference to that of Hibblewhite v. McMorine, 6 Mees & Wels. R. 200 will be sufficient. This case was decided by the court of Exchequer in 1840; the opinion being delivered by Baron Parke, than whom no more eminent common law judge ever adorned the English Bench. One question arising in the case, was, whether the writing was a deed or mere note. It was held to be a deed. He then said: “Assuming the instrument to be a deed, it was wholly improper if the name of the vendee was left out; and to allow it to be afterwards filled up by an agent appointed by parol, and then delivered in the absence of the principal as a deed, would be a violation of the principle that an attorney to execute and deliver a deed for another must himself be appointed by deed.” He further declares: “The only case cited in favor of the validity of such a deed, is Texira v. Evans, which is not sustained by the authorities, and which cannot be considered to be law.” After reviewing the various cases, and showing they are not in conflict with his views, he proceeds: “It is enough to say, there is none that shows that an instrument which, when executed, is incapable of having any operation, and is no deed, can afterwards become a deed by being completed and delivered by a stranger, in the absence of the party who executed it, and unauthorized by instrument under seal. ”

It has been suggested that this authority has been much weakened if not overthrown by the case of Eagleton v. Gutteridge, 11 Mees and Weis. R. 465. This is an entire mistake. The only point there decided, was, that a complete and operative power of attorney was not invalidated by the insertion of the attorney’s Christian name in the absence of the principal. The instrument was good without the addition, and was not affected by *it. The opinion of Baron Parke in Hibblewhite v. McMorine was sustained by the unanimous decision in Enthoven v. Hoyle, 9 Law & Eq. R. 434; one of the latest cases; and is now the settled law of England. 2 Starkie Evi. 431; Buller nisi prius 281.

In the United States the authorities are conflicting-. The volumes containing the various cases are not to be found in this place. Many of the decisions are cited and distinguished in Mr. Robinson’s Practice, 2 vol. new edition 86, to which I beg to refer. It seems that in New York and South Carolina, the courts have followed the doctrines of Bord Mansfield, in Texira v. Evans. In Pennsylvania formerly the same rule was adopted; but in Wallace v. Harmstael, 3 Harris R. 462-8, Chief Justice Gibson, speaking for the court, expressed very grave doubts of the correctness of Texira v. Evans, and said that case could only be sustained, if at all, on the ground the obligee had estopped himself by an act in pais.

In Massachusetts I am unable to say what the rule is. The case of Smith v. Crooker & Cushing, 5 Mass. R. 538, relied upon by counsel for defendant in error, does not decide, if it even raises the question involved in this controversy. There the instrument was a complete obligation when signed by the obligor; and the alteration subsequently made was wholly immaterial. Judge Parsons, however, in delivering his opinion, went far beyond the case before him.. He declared, and this is now relied on, “That the party executing a bond knowing there are blanks in it to be filled by inserting particular names or things, must be considered as assenting that the blanks may be thus filled up after he has executed the bond.” Chief Justice Marshall in “United States v. Nelson,” hereafter to be considered, plainly shows that Judge Parsons had reference to an operative instrument when ’'"executed, but having blanks to be filled with names or things already agreed on by the parties, and not to an instrument with a blank such .as deprived it of all obligatory force when signed. A blank of such vital importance that the paper, while it so remained, was a mere nullity, does not seem to have been in the view of Judge Parsons.

I have thus named the States which are supposed to follow Texira v. Evans; there may be others. It is impossible to say in the absence of the reports in the various States of the Union.

On the other hand the Supreme court of North Carolina, when the Bench was adorned by the genius and learning of a Gaston and a Ruffin, has not hesitated to follow the later English cases, overruling the decision of Bord Mansfield. In Davenport v. Sleight, 2 Dev. & Bat. Baw R. 381, an instrument signed and sealed by the defendants in blank, and delivered to an agent, with directions to purchase a vessel for the defendant, and fill up the instrument -with the price to be agreed on, and deliver it, was held not a good bond, even though the defendant declared his approbation of what had been done. The court considered the insertion of the sum in the blank space intended to consummate the deed, as done without legal authority; and therefore that the instrument is void as a bond. And with this ruling it is believed, agree the cases in Kentucky, Maryland, Texas and Tennessee.

The same principle is laid down in Parsons on Contracts, 2 vol. 723, in the following terms, and is there supported by a strong array of cases: “If there are blanks left in a deed affecting its meaning and operation in a material way, and they are filled up after execution, there should be a re-execution and a new acknowledgment.

*In the case of the United States v. Nelson, 2 Brock. R. 64, Chief Justice Marshall did not hesitate to express his entire concurrence with the later English decisions. In that case the printed form of an official bond had been signed by the securities, with blanks for the date and penalty. It was afterwards signed by the principal and the blanks filled, in the absence of the securities, without their knowledge and without any authority from them other than might be implied from their having executed the paper with intention to bind themselves as sureties, and with full knowledge of the object of the bond. The Chief Justice held that the instrument was not binding upon the securities. In the course of his opinion, he said, no sum being mentioned in the bond the defendants were no more bound by the instrument they had executed, at the time of its execution, than if the paper had been all blank. He maintained there are certain differences between sealed and unsealed instruments which make it difficult to apply the principles of one contract to the other: that these differences and rules founded on them, though originating in a different state of society, have taken such fast hold of the law that they can be separated only by the power of legislation. Throughout the opinion he kept carefully in view the distinction between an instrument which is a mere nullity, and imposes no obligation whatever until it is signed and delivered, and an instrument which is complete when ■executed; and the alteration is merely in the words, or in filling blanks with names or things agreed on, and by consent of the parties. And he showed that the cases relied on as sustaining the validity of blank bonds afterwards filled up, were all of this latter character. He admitted that the Supreme court of the United States, in Speake v. United States, 9 Cranch R. 28, had gone very far in deciding that an obligation *may be originally created by virtue of an authority merely implied from the sealing and delivery of a paper which, in its existing state, could avail nothing; and he thought it probable the time would come when that court might completely abolish, in this particular, the distinction between sealed and unsealed instruments. But no one reading the opinion carefully can fail to perceive, that the learned Chief Justice did not incline to this view, and that he intended to adhere to the doctrines of the common law, as expounded in England. It is to be observed that the case of Hibblewhite v. McMorine was decided many years afterwards; so that the Chief Justice arrived at his conclusions without the aid of the able and exhaustive opinion of Baron Parke.

The case of White v. Ver. & Mass. R. R. Comp. 21 How. U. S. R. 575, has been also much relied on as authority for the defendant in error. It was there held that the bonds of a railroad company, payable in blank, might be filled up by any bona fide holder, and made payable to his own order; but the reason assigned by the court, is, that the usage and practice of railroad companies, of capitalists and business men of the country, and the decisions of the courts, had impressed upon this class of securities the character of negotiability; being negotiable, they were of course, governed by the laws applicable to such instruments; one of which is, they may be executed, endorsed or uttered under a mere parol authority.

In the course of his opinion, Mr. Justice Nelson alluded to the case of Texira v. Evans; he admitted it was not the law in England. He said, however, that courts of the highest authority in this country have followed Eord Mansfield, and have not hesitated to meet the fears expressed by Baron Parke, that the effect would be to make bonds negotiable, by admitting the consequence. *But the Supreme court of the United States have not yet gone that far; and Mr. Justice Nelson admits that Chief Justice Marshall was unwilling to do so. It is conceded on all sides, that to follow the rule declared in Texira v. Evans is to destroy all distinction between deeds and mere parol contracts. Are we prepared for that in Virginia? No one familiar with the opinion of the judges, and the decisions of our courts, can hesitate to affirm that the disposition here is to follow the common law decisions, and preserve unimpaired the distinction between sealed and unsealed instruments.

In Harrison v. Tiernans, 4 Rand. 177, the question was as to the validity of certain instruments taken by the sheriff as bail bonds. They were in the usual form, signed and sealed by the obligors, but without any sum being mentioned as the penalty of the bonds. Counsel, in arguing, endeavored to apply the principles governing bills of exchange and promissory notes, according to which a man who signs his name to a blank piece of paper will, under certain circumstances, be considered as giving authority to fill it up with a valid instrument. But this court said, Judge Cabell delivering the opinion, that bills of exchange and promissory notes are not deeds; and authority to execute them may be given by parol, or even inferred from circumstances; but a bail bond is a deed which cannot take effect without delivery; and that delivery can only be made by the party himself, or by some attorney legally authorized by deed for that purpose.

What are we to understand by this language : that the blanks in these bonds might have been filled by a mere parol agent? Clearly not! Judge Cabell means that this could only be done and the instrument delivered by the parties themselves, or by attorneys authorized by deed. If he does not mean this, his language *does not admit of any fair and reasonable interpretation. He declares that the bonds were wholly inoperative by reason of the failure to insert a penalty. I beg to know what substantial difference there is between an instrument confessedly a mere nullity for the want of a sum to be paid, and an instrument which is a mere nullity for the want of an obligee to whom to be paid. The authority to execute and deliver, or complete and deliver such an instrument must of necessity be the same in both cases.

In Cleaton v. Chambliss, 6 Rand. 86, this question arose incidentally. According to my understanding, the proposition then announced, is, that any material alteration of a deed invalidates it, unless made under such circumstances of consent by the ob-ligee as amounts to a re-execution or re-acknowledgment of the writing. The reason is obvious; the alteration changes the contract. The writing is no longer the deed of the obligor or grantor. In its altered state, it must be re-executed by him, and then it takes effect from the re-execution. Now whether it be the re-execution of an altered deed, or the execution of a new one, or the completion of an imperfect one, there can be no well defined distinction ; and the same principles must govern in each case in respect to the act necessary to a valid instrument.

I am aware that in Rhea v. Gibson’s ex’or, 10 Gratt. 215, 220, Judge Samuels admitted there was some conflict of authority upon this point; he, however, cited a number of cases as deciding that the filling ■ of blanks in a bond will not give it validity, unless under circumstances which make a new execution thereof. And among the cases thus cited are those I have just mentioned. Whj' they are not authority for us I am at a loss to understand; but conceding they are not, they clearly show the bearing of the Virginia courts and ^judges, and they indicate a purpose to adhere to the common law doctrines until changed by legislation.

The cases of Clegg v. Lemessurier, 15 Gratt. 108, and Stinchcomb v. Marsh, ibid 202, though not involving the point in controversy here, exhibit the same tendency of our courts in this class of questions. In one of these cases, the counsel having cited the decisions of eleven States of the Union to show that the affixing of a scroll to the name is of itself sufficient evidence of its being intended as a seal, the court said, however desirable conformity with the different States might be, it furnished no sufficient reason for reversing our course of decisions. In the other case, the question turned upon the operation and effect of a power of attorney, and of acts done by a sub-agent thereunder. Counsel, in urging upon the court to give a liberal construction to the instrument, had suggested that a ’spirit of self-reliance and directness of purpose will prompt the people of this age and country to disregard the formalities of conveyancing and the rules of law by which they are prescribed. Judge Tee said this constituted no sufficient reason, nor furnished any adequate authority to change the law, or overthrow plain, intelligible and well settled principles: That is the province of the legislature, and not of the judiciary.

I think these cases strongly illustrate the reluctance of this court to reverse its course of decisions, because other States may have adopted a different rule, or because of casual instances of hardship occurring in individual cases.

In the present case it seems to be the safest course to adhere to our previous rulings and to the doctrines of the common law as expounded by the courts of that country from which we have derived our laws, our language and our system of jurisprudence. It is true that *in many cases the principles of the common law, as sanctioned and enforced by the English courts, are ill suited to the temper of our people, and the genius of our institutions: but as a general rule, that State which most rigidly adheres to the course of IJnglish decisions and precedents, will in the end attain the wisest, the most stable and the most conservative administration of justice.

For these reasons I am of opinion the judgment of the Circuit court should be reversed, the verdict set aside, and a new trial had, in accordance with the principles herein announced.

The other judges concurred in the opinion of Staples, J.

The judgment is as follows:

This day came again the parties, by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said Circuit court erred in giving to the jury the instruction moved on the part of the plaintiff below, and set out in said defendant’s bill of exceptions, number 1; and that the said Court, in lieu of the said instruction, should have given to the jury the instruction moved on the part of said defendant in that court and set out in bill of exceptions number 2. Therefore, it is considered that the said judgment of the said Circuit court, for the error aforesaid, be reversed and annulled, and that the defendant in error do pay to the plaintiff in error his costs by him about his appeal in this behalf expended. And this court, proceeding now to render such judgment as the said Circuit court ought to have rendered in the cause, it is further considered, that the verdict of the *jury be set aside agreeably to the motion to that effect finally made by the said defendant in said Circuit court, and that a new trial be awarded him, at which the court, if so moved, and if the evidence be substantially the same as on the former trial, shall instruct the jury in conformity with the foregoing opinion.

Which is ordered to be certified to the said Circuit court for Smyth county.

Judgment reversed.  