
    Williams v. Crutcher.
    A forthcoming hond delivered with the penalty and amount of the execution in blank is void. . . " .
    The return of the officer that the forthcoming bond was taken and forfeited, will not preclude the defendant from denying its validity.
    authority is necessary to authorize the ffllmg up ota,hÍM&-tod or bond.
    ERROR from the circuit court of Yazoo.
    In Yazoo circuit court, February special term, 1888, Crutcher recovered a judgment against John M. Waskom, et al. On this judgment execution issued, which was bonded by defendants thereto with plaintiff in error as their surety, together with others. The sheriff made the usual return .on the execution, of a levy on certain personal property of defendants, bond given with sureties for the delivery of the property levied on, at the day of sale, and that the bond was forfeited, and returned at same time with the execution, in pursuance of the statute. Ah execution emanated on the judgment on the forfeited forthcoming bond, and was levied upon the property of plaintiff in error, and the sheriff returned the same levied and satisfied, Nov. 26th, 1838.
    The plaintiff in error filed his petition in Yazoo circuit court, on the 18th December, 1838, setting forth that at the time of his signing and sealing the printed form of a forthcoming bond as surety, which the said John M. Waskom purposed giving on the said execution of defendant in error, against him and others — the penalty, names of parties to, and amount of the-said execution against John M. Waskom, et al. were left blank,.and were after-wards inserted in the said printed form intended for a forthcoming bond, without his knowledge.or consent, or any authority from him, and prayed to be permitted to plead non est factum, to the said forthcoming bond taken as aforesaid, on the said execution of H. L. Crutcher, v. John M. Waskom, et al. emanating on the original judgment. Pleas setting forth that the bond was blank, were accordingly filed 20th December, 1838. To these pleas the said H. L. Crutcher, the defendant in error by his attornies filed a general demurrer. The cause was then continued for plaintiff in execution to the next term of the court. At the May term, 1839, of the said court, upon argument of the cause the court sustained the demurrer and dismissed the petition.
    
    G. S. and J. S. Yerger for plaintiff in error.
    1. The law is, as we consider it, settled, in relation to bonds and other sealed instruments. That a mere signing and sealing in blank, is not sufficient to make it a bond. Sheppard’s Touchstone. 2 Brockenbrough’s Rep. 64. 4 Randolph Rep. 196,448. 1 Washington, 73. 1 Hill’s So. Car. Rep. 267. 2 Dev. N. Carolina Rep. 374. 2 Dev. and Battle Rep. 381. 6 Gill and Johnston, 250. 5 Monroe’s Rep. 25. 3 Bibb, 361. 1 Yerger’s Rep. 69, 149. Ohio Con. Rep. 167.
    All the above cases decide the precise point, but I refer the court particularly to the case in 2 Dev. and Battle, which examines the cases relied on, on the other side; and also to Ch. J. Marshall’s reasoning in the case in 2 Brockenbrough, and 6 Gill & Johnston.
    2. It is admitted that some of the authorities decide, that when express authority is given at the time to an agent to fill it up, and it is filled up in conformity with the authority, that it is good. 8 Cowan, 118, and case there cited from Anstruther’s Rep. 6 Sergeant and Rawl. 308. 17 Sergeant and Rawl, 438. 2 American Com. Law, 408. These authorities are repudiated as unsound, in the above cases.
    But admitting these authorities to be law, (which they clearly are not, as they are opposed by the principles of the common law, and by the cases first cited,) still, in the case before the court, no authority whatever was given, as the plea alleges, and which the demurrer admits to be true.
    But 1 insist, upon principle, they are not sustained — they are all bottomed or founded on Lord Mansfield’s decision or dictum, in Texira v. Evans, cited in 8 Cowan, 118, from Anstruther’s Rep.
    It is admitted in ail the cases that the mere sealing a paper, in blank, and delivering it for the purpose of filling it up, does not make it a bond. The party must do some further act, he must re-deliver it as his bond, after the writing is filled up. But it is insisted that he rjeed not do- this in person; that he may. depute or authorize another to do it for him. This is certainly the law. In order to make it his bond, he may authorize another to fill it up and deliver it. But the question is, can he do this by parol? Can the act of another bind him in a bond, unless he have authority by seal to do so? We think the principles of the common law are manifest that he cannot. •
    Suppose A. authorizes B. by parol to seal and sign a bond, and he, does it, is B. bound ? Surely not. .Suppose A. seal and sign a blank, which all admit is null and void; and authorize B. by parol, to fill it up and deliver it, is it binding ? Surely not. In both cases it is the act of an agent constituted by parol; ’
    The authorities are clear, that an agent to bind his principal by bond, must have authority under seal. 9 Wend. Rep. ■ 1 Com. Digest, 777, top page.
    But it is supposed that the act of one-partner sealing a deed in the partnership name in the presence of another, is an authority to show the authority may be by parol. Not so. By the common law, Á. may stand by and direct B. to seal a deed for him, and he may adopt B.’s seal, and it is his act. 4 Tenh. Rep. 313. So when he is constructively present, and knows what'his partner is doing, although at the moment the seal is affixed he is not present, but is in the room. 9 John Rep. 285. • Mackey v. Blood-good. ;
    3. But it is said the sheriff’s return that the bond was executed is conclusive. The act of assembly authorizing the sheriff to take the forthcoming bond, does not constitute him'the judge of its validity. His apt in receiving the bond, does not constitute him a judge. If the bond is forged, the. return of the sheriff cannot make it valid. As between the parties to the immediate proceeding, the return of the sheriff as to process is conclusive; but it would be absurd to say his return that the bonds or other deeds were executed, should conclude a party, who perhaps, as in cases of forgery, never heard of them.
    But the return of á sheriff is only conclusive against a party, —the surety is no party, until he executes the bond; it is his own act that is to make him a party. If he never executed it, he never was a party. He is a mere stranger to the original proceeding, and the law is settled that the return at most is but prima facie, evidence against third persons. Watson on Sheriff, 72. 11 East, 297. 4 Conn. Rep. 80. 4 Greenleaf, 230. 3 Randolph, 554. (See also the opinion of Chancellor Buckner on this point.)
    4. But if the law had said in express terms, that it should be binding and conclusive, which it has not, it would be wholly unconstitutional. A party by the common law, who is charged by bond, has a right to a trial by jury, to ascertain whether it is his bond or not. The execution of the bond is a fact purely for a jury, if the party asks it. The legislature cannot deprive him of this right, by saying the return of the sheriff shall conclude him. It is expressly on the ground that the legislature did not intend to take from the parties the right of trial by jury, that the constitutionality of the acts allowing forthcoming bonds is sustained — i. e., he may have an issue if he chooses, or go into equity for relief. 4 Peters’ Conn. Rep. 440,445. Smith v- Smith, 1 Howard’s Rep. 102. The point that the return is not conclusive, has been explicitly decided in 2 Leigh’s Rep. 157. 4Danna, 153. The party has the right to supersede the execution, and have an issue, 1 Dunlap’s Practice, 368; 2 John’s Cases, 260, 261; or, as in the above cases in Leigh and Danna, he might file a bill; the jurisdiction is concurrent.
    This court must give a judgment here on the demurrer — it must render such judgment as the court below ought to have rendered, Rev. Code, 150, sec. 7; and judgment being final, we are entitled to a writ of restitution for the money.
    Battqile, for defendants in error.
    A sheriff’s return is conclusive, between the parties, and cannot be impeached in a collateral way. A party injured has his recourse against the sheriff. 7 Comyn’s Dig. Title Return, G. page 287. 15 East’s Rep. 378. 10 Pickering’s Rep. 168-9, in Doty v. Turner. 8 J. R. 20. 2 Pirtle’s Dig. 395-6-7-8. Smith v. Hornbache, 3 Marshall, 393. Small v. Hogden, 3 Littell’s Rep. 467. 4 Monroe, 399. Trigg, &c. v. Lewis’ Executors, 3 Lit-tell’s Rep. 129. McGhee v. Ellis & Browning, 4 Littell’s Rep. 246-7. Taylor v. Lewis, 2 J.' J. Marshall, 400. 3 Maulé & S. 175. Preston v. The Auditor, 1 Call, 471, 474. Caldwell v. Haulan, 3 Monroe, 351. ■ ■
    A bond signed in blank valid, if filled up by an agent of, or person authorised by the obligor, or one acknowledged by him. 1 Anstruther’s Reports 228., 4 Comyn’s Digest, page 271, (note.) 1 Ventris, 185. 2 C'u. Rep. 187. Gilbert vl Anthony, 1 Yerger, 69. Wynne et al. v. Governor, 1 Yerger, 149. Logan v. Doni-phan, 2 J. J. Marshall, 253.’, Smith v. Crocker et al. 5 Mass. Rep. 539. Woolley v. Constant, 4 J. R. 60. Ex parte Kerwin, 8 Cowen, ,118. ' Gordan v. Jeffery, 2 Leigh, 410. Bantley & Ferguson v. Yates, 2 Hen. & -Munf. 398. Beale v. Wilson et al, 4 Munf. 380. Ex parte Decker, 6 Cowen, 59. 1 Dallas’Rep. .67. Sigfried v. Levan, 6 Sergeant & Rawle’s Rep. 308. 13 lb. 190. 14 lb. 380. Wiley et al. v. Moore et al. -17 Sergeant & Rawlels 'Rep. 438-441. ■ - ,
    Forrester, on the same side.
    A bond signed in blank with instructions to fill, it up, if it is filled up in pursuance of the instructions, is. good and valid. 2 Amer. Com. Law Rep. 408. 17 Serg’t. & Rawle’s Rep. 438. 6 lb. 308. 4 Rand. 177. 8 Cowen, 118. 4 Johns, 60. The return of the sheriff'that he-served the execution and took a forthcoming bond executed by defendant' and others, is conclusive between the parties and cannot be averred against in this way. Watson on Sheriff’, 72. ■ 7-Comyn, 287^-8. ■((&.) ■ 15 East, 378. (If false the remedy is by action for false return. Lofft, 371.) Croke E. 872. 1 Salk. 265. 4 Burr. 2009'. 1 Taint. 23. Stra. 813. 3 Mar. 393. 2 J. J..Marshall, 400. lLitt. 17. 3lb.467. 4Mon. 399. 10 Pickering, 478,169. 4 Mass. Rep. 479. 9 Mass. Rep. 95.
   Mr. Justice Tkottee

delivered the opinion of the court.

The question to be decided in this case, arises from the facts stated by the plaintiff in error, in the plea of non est factum, which was filed by him in the court below, The proceeding against him was on a forthcoming -bond, which .had beep executed by him and others, to H. L. Crutcher,' and he avers that the bond was signed and sealed by him in blank, as to the penalty and the amount of the execution under which it was taken, and that they were afterwards filled up without his knowledge, and that there was no redelivery thereof after this was done. The plaintiff below demurred to the plea, and the court sustained the demurrer.

It is a well settled rule of the common law, that a deed delivered in blank, is no deed; and if the blanks are afterwards filled, there must be a redelivery. In doing this, however, no formality is requisite; and if the obligor authorizes another to complete the deed, by filling the blank, and he does so, and then delivers it as the deed of the obligor, it will bind the latter. In the application of this rule, however, the courts appear to have experienced much difficulty. When the authority of the agent is conferred by deed, his power is undoubted.

By the common law, as it was understood anterior to the decision of the case of Texira v. Evans, by Lord Mansfield, cited in 1 Anst. 228, the power ofthe agent for that purpose could onlyarise by deed. 1 Comyn, 777. In that case a different rule was established; and it was held that a parol authority to fill a blank in a bond for the payment of money, by inserting the proper sum, was binding. And upon the authority of that case, it has been determined in Pennsylvania and in N. York, that a bond so filled up and delivered is good. In the case ex parte Kerwin, 8 Cowen, 118, the appeal bond was drawn with a blank as to the judgment; and the obligor, at the time of signing it, gave a verbal authority to the surety to ascertain the amount, insert it, and deliver the bond, which was done; and it was held to be good on the authority of Lord Mansfield, in Texira’s case. Woolly v. Constant, 4 J. R. 60, was decided on the same authority. The court there say, that though the blank be material, yet if It is 'filled with the consent of the obligor, it will be obligatory. And as the verdict in that case found such to be the fact, the court gave judgment against the obligor. The same reasoning is adopted by the court in Wyley v. Moore, et al. 17 Serg. & Rawle, 438. The bond in that case was left with the judge, in blank, with the express instructions of the obligor to fill it up. The same principle is in effect maintained by the same court, in Sigfried v. Levan, 6 do. 308.

The principle of these decisions is, that a delivery .of the deed, by'an agent expressly authorized to do so, by the obligor, is equivalent to a delivery by the principal, and that this authority may be by parol. In most of the states, however, the courts have adhered-to the doctrine laid down in Cornyn, that such authority is not sufficient. Thus in the case of Gilbert v. Anthony, 1 Yerger, 69, it was held by the supreme court of Tennessee, that a bond signed and, sealed- in blank, with a verbal authority given at the time to fill it, is void, tinless redelivered or acknowledged by the' obligor. The court put the decision on the familiar reasons of the common law, as it is found in Sheppard, Plowd & Coke, which makes deeds, from the deliberation and solemnity with which they are supposed to be made, higher evidence than parol contracts., And; therefore, that to permit the execution of deeds to. depend on verbal testimony, and the imperfections of human memory, was at war with the policy of the rule. In a subsequent casé, the same question was decided in the same way. 1 Yerger, 149. In Kentucky, the court of. appeals have decided the question in accordance with the opinion of the court in Tennessee. 3 Bibb, 361. 5 Monroe, 25. It has been similarly determined in Virginia. 1 Washington, 73. In the case of Harris v. Tinnan, 4 Rand. 176, there was a blank bond, as to-the penalty, which was filled after the signing and delivery. And it was urged that the signing and delivery of a bond in blank, is an implied authority to fill, it upl ' But the court would not allow this doctrine. In Byers v. M’Lanahan, 6 Gill '& Johnson, 250, the court in Maryland. lay the rule down as Sheppard does, in his Touchstone. And that a valid deed cannot be made by writing over it a signature and seal upon a blank or empty sheet of paper.

In South Carolina they have held the same doctrine, 1 Hill’s S. C. Rep. 267. In the case of Davenport v. Slight, 2 Dev. and Battle’s Rep. 381. the defendant executed and delivered a bond in blank to an agent with a verbal authority to fill the blank and deliver it to the obligee, and this was held not to be the bond of the principal, although it was in proof that he had subsequently declared, in the absence of the bond, that he approved the delivery. In that case, judge Ruffin notices' the case of Texira v. Evans, which sanctioned the first inroad upon the ancient rule, and the cases which have followed its authority, and regards the principles they establish as highly dangerous in the consequences. And indeed it seems to be difficult to resist the force of his argument, that if carried out, they must’end ultimately in a total destruction of the distinction between deeds as evidence of title, and mere parol contracts.

In the case of The United States v. Nelson and Myers, 2 Brock. Rep. 64, judge Marshall gave the subject a very full and careful examination, aqd reviewed all the' cases, after which he concluded that such-a bond is. void/ In that'case blanks were left when the bond was sighed' and sealed, and they were after-wards filled, but it did not appear that any authority, was given by the obligors for that purpose, or that after that, it was acknowledged or redelivered. • It was found by .the special verdict, however, that the defendants at'the time of signing and sealing the paper, well knew that it was to serve as the. bond of the obligors for' the duties of paymaster of' the U. S. Army; and it was hence insisted that ah authority to fill the blanks might be implied. But the chief justice held .otherwise, and maintained that no such authority could be implied, or be otherwise obligatory, and that a verbal authority would not bind. The weight of authority is evidently on the side of this decision, and we feel constrained to adopt 'the rule which it establishes, and apply it to the present case. It is certain that some inconvenience may occasionally arise under its operation, but it is better that such should be submitted to in a few cases, than that the whole country should be exposed to the dangers of fraud, perjury, and the mistakes of memory, which are inevitable, even with the most upright men.' •' 1 ■

Entertaining' these views, we feel satisfied, that the pl,ea presents a valid objection to a recovery upon the bond, and that. therefore the demurrer should have been overruled. This was the proper judgment under the authority even of the cases in Pennsylvania and New York. For in all those cases it is held to be a proper subject for, the inquiry of the jury, whether the proof made out a proper signing, sealing and delivery of the deed; This was so held in the case in 8 Cowen, 118, and in the case in 4 J. R. 60.

The return made by the sheriff, that this bond was taken and forfeited canndt preclude the defendant from denying its validity. The law which makes the return of the officer conclusive, applies to the execution and return of process, and it has been decided by numerous and highly respectable authorities, to be only prima facie evidence in that case. The reasons upon which many of the courts however have held it to be conclusive between the parties, cannot apply to the case of deeds or bonds. 2 Leigh’s Rep. 157.

The judgment must therefore be reversed, and judgment rendered for the defendant.  