
    John T. Apthorp, Esq., Treasurer, &c., versus John North and Others.
    To the validity of a coroner’s bond for the faithful performance of the duties of his office, a formal approbation of the Court of Common Pleas on record is not necessary.
    This was an action of debt upon a bond made by the defendants, John North, Joseph North, Jun., Jonathan Pollard, and James Noj-th, payable to Peleg Coffin, Esq., treasurer of the commonwealth, and his successors in office, for 2000 dollars, and dated July 1, 1799; with condition that the said John should well and truly execute the office of a coroner in the county of Kennebeck, to which he had been commissioned on the 28th of February preceding.
    On the trial, which was had upon the general issue of' non est 
      
      factum, before Thatcher, J., at the last October term in this county, it appeared in evidence that the writing declared on was signed and sealed by the defendants on the day of its date, and was delivered to * and taken by Joseph North, Esq., the subscribing witness, into the Court of Common Pleas for the county of Kennebeck, of which he was the first justice, for approbation according to the provisions of law; but the same was never approved by said court, one or more of the justices doubting the sufficiency of the sureties. And at December term, 1801, of the said court, the same bond was found on the files of the clerk of the Court of General Sessions of the Peace, and was then delivered by said clerk to the said Joseph North, Esq., or taken by him, from the clerk in court, and carried out by him, he observing at the time that it had not been approved, and was of no validity. On the same day he returned it to John and Joseph North, Jun., stating that the court would not approve of it. Thereupon the said Joseph North, Jun., tore off his name and seal from the bond, and the said John took it and kept it. The bond was afterwards, in a former trial of this action, produced by the said Joseph North, Esq., and has since remained on file in this case.
    Upon this evidence the judge instructed the jury that, if they believed the facts as disclosed in evidence, they ought to find a verdict for the plaintiff; and a verdict being so returned, the defendants filed their exceptions to the said direction.
    
      Mellen, for the defendants,
    argued that it was necessary to the validity of this bond that it should be approved by the Court of Common Pleas for the county.  Without such approval, there was no assent on the part of the commonwealth, and so no contract ever completed. The sureties were offered, but they were never accepted or approved of, which was necessary to the completion of the contract. It is not unlike the case of Payne vs. Cave, 
       in which it was decided that a bidder at an auction, under the usual conditions that the highest bidder shall be the purchaser, may retract his bidding any time before the hammer is down.
    But if the obligation may be said to have been accepted, still here was no delivery. The court to whom a delivery was offered refused to receive it. In other * words, they rejected it, and refused to put it on their files; and it was afterwards found on the files of another court, where it must have been accidentally put. Until after the bond was cancelled, and, indeed, until the commencement of this action, which was many yea,-s after the cancelling, there was no assent on the part of the commonwealth, or of any person as its agent, to receive it, or to consider it as of any validity. 
    
    
      Orr, for the plaintiff.
    No formal approbation of the bond by the Court of Common Pleas was necessary. When the coroner and his sureties had sealed it, and delivered it to the first justice of the Common Pleas, a right of indemnity under that bond vested in every person who might thereafter be a sufferer by the nonfeasance or the malfeasance of the coroner. The statute implies that all services performed after the bond is executed shall be valid, uiuil the sitting of a court, when it may be approved. It then takes effect from the time of delivery, and becomes public property.
    The case states that the bond was not approved. This, however, is merely an inference, and not a fact. The receipt of it by the chief justice of the court, as their organ, was an approbation of it. It is immaterial whether it was found upon the files of the Common Pleas or on those of the Sessions. In either case, it remained the property of the commonwealth, and must be presumed to have been approved.
    But it is not competent for the defendants to allege that the instrument declared on is not their deed. The case finds a sealing and a delivery to the proper agent. These are the substantial requisites of a deed. The attempt of the surety to cancel it was a tortious act, as was also the taking of it from the files of the court by the officer who had returned it into the court.
    The object of the statute, in requiring the approbation of the court, was to guard against insufficient sureties, but was not ntended in any manner to operate as a privilege to the coroner or his sureties.
    Under the plea of non est factum, the defendants * have no right to bring the approbation of the Court of Common Pleas into question. If they would rely on the want of such approbation, they should have pleaded it. They have done all that was in their power to bind themselves; they have pursued all the usual and requisite forms ; and the instrument declared on is therefore their deed.
    
      
       Vide Slat. 1783, c. 43, 44.
    
    
      
      
        3 D.& E. 148.
    
    
      
       Ba Abr. tit. Obligation C, 5.— Co. 119, a.
      
    
   Parker, C. J.,

delivered the opinion of the Court. If the fact stated in this case, that the bond declared on was offered to the Court for approbation, and was not approved, must necessarily be construed to mean that it was rejected by the Court, the inference drawn by the counsel for the defendants, that it never became effectual by a delivery, would be irresistible.

But such a construction is so inconsistent with other facts in the case, about which there is no question, that we cannot adopt it; and the fact, as stated, must be considered as meaning only that there is no evidence of record of any formal approbation by the court. And in this view of the case, which is now declared to be the true one by the judge who sat in the trial, we think there is no cause for setting aside the verdict.

The case would then be, that the bond given to secure the faithful performance of the duty of a coroner by the principal was duly executed; was delivered to the presiding judge of the Court of Common Pleas, who was a subscribing witness, and by him handed to the court. No act of disapprobation by the court is proved; and more than two years afterwards the bond was found on the files of the Court of Sessions; from whence it was taken and delivered to one of the sureties, who attempted to cancel it by tearing off his name and seal. Now, a delivery to the court, or the putting it upon the files of the court, was, in law, a sufficient delivery; because the bond is, in effect, made to the commonwealth, although nominally to its officer, the treasurer; and a reception of it by any officer of the government, if it passed regularly through the Court of Common Pleas, would be a completion of the contract. A formal act or certificate of approbation by the court is * not made necessary by the statute. The act which describes the duty and power of coroners provides that the coroner shall, before he enter upon the duty of his office, give security in the same manner as sheriffs are by law obliged to do. The act defining the general powers and duties, and regulating the office, of sheriffs, provides that the sheriff shall give sufficient security, at the discretion of the Court of Common Pleas of his county, to the treasurer of the commonwealth.

It is not, then, required expressly that any record or certificate should be made, that a bond given was approved ; but if such bond is found upon the files, without any evidence accompanying it that it has been rejected, and the principal has proceeded to execute the duties of his office, the presumption is violent, if not conclusive, that the bond was received by the court as the security required by the statute.

We have no hesitation, therefore, in saying that the facts reported prove the legal existence of the bond, as a contract with the commonwealth ; and notwithstanding it has not been approved, in the only sense which can be attributed to the words of the report, it is binding upon the obligors.

The facts from which this legal inference is drawn being admitted, a new trial is unnecessary.

The circumstance of the bond’s being found upon the files of the Court of Sessions, instead of the Court of Common Pleas, is not material; for the files of neither of those courts was its proper place of deposit. It ought to have been transmitted by the presiding judge of the court, or by his direction, to the treasury office. But if it never reached the proper depository, either from accident, carelessness, or the fraud of any of the parties concerned, it nevertheless remained in force from the time it was handed into the court, as the security required by law.

The removing it from the files and giving it to one of the obligors was an unlawful act, even upon the supposition that it had no legal force ; for no one has a right to rifle a public office, and determine for himself * the value or validity of the papers. Such an act could be free from moral turpitude only if there was a sincere belief that neither the public nor individuals had any interest in the paper as a security.

Judgment on the verdict. 
      
      
        Stat. 1783, c. 43.
     