
    Hill vs. Scales.
    Where A had pleaded non est factum to a bond for the delivery of the property of B, purporting to be executed by A as seculrity of B: Held, that the admission or acknowledgement of A, that he was security for the delivery of B’s property, made to the constable who held the bond, there being no subscribing witnesses, is evidence from which the execution of the bond may be implied, as well as evidence that the party acknowledged the bond as his own, though it may have been signed by some othei person.
    If the name of A'be signed to a bond by a stranger, without authority, and A afterwards acknowledge the bond to be his, or do any other act from which the recognition of the bond may be inferred, he will be bound by it, and it will be considered his bond.
    The execution of a bond may be proved by implication, there being no subscribing witnesses.
    An execution in favor of tbe defendant in error was issued from the circuit court of Williamson county against Jonathan Hill, and a delivery bond executed by Jonathan Hill, purporting to be executed by the plaintiff in error, was forfeited; and the execution was levied on the property of the plaintiff in error, who obtained a super-sedeas, and pleaded non est factum to the delivery bond. Issue was taken on this plea, which coming on to be tried, the court charged the jury, that, “In this issue of non est factum, wherein the defendant bad sworn that the bond in controversy was not his act and deed, the proof of that issue lay upon the plaintiff, and he must satisfy the jury that this is defendant’s bond; and the most usual way of doing this, was by calling the subscribing witnesses, but in this case there are no subscribing witnesses; then .the plaintiff can prove the execution of the bond by proving the band writing of the defendant to the bond; and in this case, the defendant has introduced witnesses to prove that defendant's name to this bond is not his handwriting, whose testimony the jury are to judge of. But the defendant may be proved to have executed this bond by implication; and in this case, if the jury believe that Owen, the constable, asked defendant if he was not security for the delivery of some of Jonathan Hill’s property, and that the time would be out in a day or two, defendant replied that he was, and Owen then pulled out the bond; defendant said nothing about whether it was his bond or not, but said Jonathan had gone to Bedford county, and would be back in a day or two, and when he returned he would tell him to come in and pay the money; this would be evidence of defendant’s implied ac-knowledgement of the bond, although he did not sign it. A man may, by his silence, admit the execution of a bond; as if Owen present the bond to defendant, and ask him if he is security for the delivery of some of Jonathan Hill’s property; defendant says he is, but does not tell Owen he did not mean that property mentioned in that bond present, but some other property, and does not tell Owen that is not his bond, but induces him to believe by his silence that it is his bond, this would be evidence proper for their consideration, that it is his bond. And it is not necessary that a man should write his own name to a bond to make it his; if another man write defendant’s name to a bond, and he acknowledge it to be his bond, then it is his bond, notwithstanding he did not sign the bond himself at all.” The jury found a verdict for the plaintiff, and a motion for a new trial having been made and overruled by the court, an appeal in nature of a writ of error was prosecuted to this court.
    
      R. Alexander and R. C. Foster, for plaintiff in error.
    1. Considering this a bond at common law, a man cannot be proved to have executed a bond by imputation; his silence when the bond is shown to him, or his representing to another that it is his bond, will not make it so, if in fact he has not executed it, because signing, sealing and delivery are requisite to constitute a valid bond, and these must be proved, not implied. A man cannot execute a bond for another without a power of attorney au- ..... . • , , . : . thorizing him to do so, and a subsequent acknowledgment of a bond thus executed would not be binding if no power of attorney were shown. 1 Livermore on Agency, 50: Chitty on Contracts, 57, 78: 5 Mass. R. 11, 40: Nunnelly vs. Dougherty, 1 Yerger’s Reports, 26, 69: 4 Dane, 92, sec. 23, 24: 10 Mass. 40: 1 Hay. Rep. 18: 2 Mur. Rep. 237: 1 Com. Law Reports, 98.
    2. The court should have charged the jury, if the bond was void in its creation and first delivery to Owen, by Jonathan Hill, by means of defendant’s name having been forged to it, that no subsequent delivery or acknowledgment could validate it. 2 Kent, 193: Bing on Infancy, 32: Butler and Baker’s case, 3 Coke’s Reports, 36: 1 Fonb. 80, 81, 140: 1 Atk. Rep. 354: 2 Starkie, 725, note x.
    3. Supposing this to be a statutory bond, and it will be found that the obligation entered into by the security in a delivery bond, taken under the act of 1831, (ch. 25, page 40,) is in the nature of a judgment confessed by the security, and to bind him he must be present when the sheriff officially enters his name as security to such bond, or must sign his own name as such. If he be not present, a written authority to the sheriff or some other person to enter him as security is necessary. And in this case, as Ifezekiah Hill was not present when the bond was executed, and knew nothing of it till 7th January, 1834, the bond being dated 14th Nov. 1833, and his name as security not being put to it by himself, or in presence of the sheriff, the bond is void by the statute (Haywood and Cobbs, 202,) as to stay of execution. Hickman vs. Williams, Martin and Yerger’s Rep. 116: Love vs. Smith, 4 Yerger’s Rep. 131. Analogous to which is a delivery bond taken in conformity to the act of 1831, ch. 25, page 49. Taylor’s Rep. 149, Winn vs< Buckett.
    4. The judgment of the court awarding an execution against Jonathan Hill, and Hezekiah Hill, security in the delivery bond, was erroneous, because the levy made by Owen, deputy sheriff, 14th November, 1833, on property suS?cient to satisfy the execution, was a satisfaction thereof. 3 Haywood’s Reports, 144: 3 Yerger’s Reports, 27S; and the case of Carroll, Governor, &c. vs. Fields, 6 Yerger’s Reports, 305. And the deputy sheriff’s taking a delivery bond, but with no security, according to the statute, or at any rate, .no security till 7th January, 1834, after said property had been destroyed or disposed of, does not give the right of awarding an alias execution against Jonathan and-Hezekiah Hill.
    
      J. Marshall, for defendant in error.
   GReen J.

It is insisted by thte counsel for plaintiff in error, that the court erred in this charge; especially when the jury were told that the “defendant may be proved to have executed this bond by implication.” In this sentence the judge meant, that although there be no positive evidence that a party executed a bond, such as the evidence of subscribing witnesses, or proof of his handwriting, yet, as it is not essential that he should write his own name to a bond, in order to make it his, if facts were proved amounting to an acknowledgement on the part of defendant that it was his bond, the jury might infer that it was executed by him. In the case put by the judge, at the conclusion of which, he told the jury that such facts “would be evidence proper for their consideration, that it is his bond;” his meaning in the use of the expressions so much objected to, is plainly developed. We think the law was correctly stated, and that the plaintiff in error spoke and acted in a way that amounted to an ac-knowledgement that it was his bond, and that it was fairly inferable that it was executed by him. Although he did not sign it, yet if his name was put there by his direct!on, and be, acknowledged it as his act and deed, it would be Ins bond.

Catron, Ch. J. concurred. '

Peck J.

dissentiente. I feel it my duty to say, that there is a weight and consequence given to what the judge is-pleased to call the silence of Hill, that is not certainly justified by any of the facts in the record.

Hill was never asked to avow or disavow the execution of the bond. Had the question been put to him direct, whether or 'not he had executed the bond, and he then had been silent, there might have been something to have predicated the presumption upon; in all such cases, we must look to the things, doing, and if possible, draw fair inferences from them.

Hill might have had very strong reasons for saying nothing about the bond, if the subject of its execution had been put to him directly; for my part I have no doubt it was a forgery. If Hill desired to involve no one, by a charge that a crime had been committed, that of itself is no ground to make him pay a debt or perform a duty for which he had never bound himself; especially by an implication which cannot arise in this case, from the fact, that he was never questioned concerning the matter. I therefore repeat, that there is a weight and consequence given to this light affair, the silence, by the circuit judge, quite beyond any facts to authorize it; and what is most to be regretted, few of the profession will read the charge of the judge without perceiving that, though artfully disguised, it amounts to a charge upon the fact, if indeed it can be said to have any fact whatever for its basis. The amount in dispute is not serious; but the principle is a great one: we ought to be content to move in the sphere assigned us. Had the evidence been presented to the jury for them to weigh, stripped of the supposed fact that Hill had been questioned touching the execution of tbe bond, they would not have found that he had signed, sealed, and delivered it. The verdict itself offers an apology for the jury, who must have felt themselves hedged out from the right of judging of the facts, or of what was proved and what was not proved. I am for reversing the judgment.

Judgmént affirmed.  