
    *Cordle v. Burch.
    October Term, 1853,
    Richmond.
    (Absent Lbe, J.)
    
    Bonds — Recitals—Estoppel—Case at Bar. — N living- in Virginia brought two suits in South Carolina, and B living there became his security for costs. N executed to B a bond with sureties living in Virginia, with condition to indemnify him against injury for having entered into the undertaking as surety for the said costs. In an action by B against N and his sureties, the records of the suits brought by N in South Carolina were offered in evidence by B, and were objected to on the ground that they showed that B had not become the surety at the date of the bond of N, and his sureties to him. IfEi.n: That the defendants not showing that B was surety for N for costs in other cases, their bond must be held to refer to these suits; and they are estopped by their bond from denying that B was the surety of N at the time of its execution.
    This is an action of covenant brought by Edward Burch against Charles Cordle, on two obligations of Josiah Holley and his sureties, of whom the defendant was one; by one of which obligations the obligors bound themselves to pay unto the plaintiff, Edward Burch of Chesterfield district in the state of South Carolina, whatever sum of money he might be compelled by law to pay for the said Josiah Holley, “he, the said Burch having become the said Holley’s security for costs in two suits instituted by the said Holley against Thomas Kirkley and John Squiers his security, of the district and state aforesaid;” and by the other, after reciting that “Edward Burch of Chesterfield district, state of South Carolina hath entered into bond for the costs that may accrue in certain cases wherein Josiah Holley is plaintiff and Thomas Kirkley and John Squiers are the defendants, in case the costs should fall on the said Holley in the said cases,” the obligors bound themselves to indemnify the said Burch *from any harm or injury that he might sustain from having entered into the bond aforesaid. The only plea was “conditions performed,” to which the plaintiff replied generally; and on the issue thereon joined, verdict and judgment were rendered for the plaintiff.
    On the trial of the issue the plaintiff offered in evidence the two obligations aforesaid ; and two transcripts of records of the Court of common pleas in the district of Chesterfield in the state of South Carolina, being the records of the two suits instituted by the said Holley against the said Kirkley and Squiers, and of the proceedings agai nst the plaintiff Burch as security for costs in the said suits. Erom these records it appears that the suits were instituted in December 1829, a rule was made for security for costs in March, and renewed in September 1830, and the bond of Burch as such security bears date the 8th of March 1831; whereas the obligations executed for his indemnity bear date, one of them on the 15th of March, and the other on the 29th of July-1830. All of the six persons whose names are signed to the first of these two obligations, are named as obligors in the last, but only three of them signed it. The last is a more formal instrument than the first, and seems to have been executed for that reason, as the object of each of them is the same. The defendant moved the court to exclude the said records from going in evidence to the jur3; because it appeared that the plaintiff had not in fact become the security of the said Holley at the date of either of the said obligations, but had become so afterwards, as appeared by said records. But the court overruled the motion, and told the jury that in the absence of any proof to the contrary, they ought to regard the said records as evidence of the amount of costs which the plaintiff had paid for Nolley, and for which the defendant was liable to the plaintiff. The defendant excepted to this opinion; which is the only error ^assigned in the judgment. There being a verdict and judgment for the plaintiff, Cordle applied to this court for a supersedeas, which was allowed.
    G. H. Johnson, Gholson andJoynes, submitted the case for the appellant.
    There was no counsel for the appellee.
    
      
      860 foot-note to Cecil v. Early, 10 Cratt. 198, where the cases which cite the principal case are collected.
    
   MOHC1IRE, J.,

after stating the case, proceeded:

There can be no doubt but that the two suits referred to in the obligations on which this action is founded, are the same suits of which transcripts of the records were offered in evidence; and that the plaintiff Burch became Holley’s security for costs in the said suits, and as such was compelled to pay the sums of money sued for and recovered in this action. There is no variance between the records and the obligations and declaration. The defendant offered no evidence of the existence of any other suits, or any other securityship for costs to which his obligations could refer; but rested his defence alone upon the ground that the bond by which the plaintiff became security for costs bears date after the date of the said obligations, which purport to be for the indemnity of the plaintiff against a prior securityship.

But though the obligations bear date, it does not follow that they were fully executed, before the bond. Delivery is necessary to the complete execution of a bond, which may not be delivered until long after its date, and will take effect from its delivery, not from its date. The date is prima facie, but not conclusive, evidence of its delivery at that time. The presumption may be repelled by other evidence. It is not unusual that a bond dated at one time and intended to be delivered at another, recites that the consideration has been received; when, in fact, it has not been received at the date, but is expected to be, at or before *the delivery of the bond. The bond is considered as speaking at the time of its delivery, and not of its date. In such a case there is no incongruity; and if the consideration be received at or about the time of delivery, according to the intention and expectation of the parties, there can be no doubt as to the obligation of the bond on all the obligors, whether principals or sureties.

The circumstances strongly tend to show that this is precisely such a case; and well warranted the jury in so considering it. Nolley, residing in Virginia, instituted two suits in South Carolina, and was required to give security for costs. He had friends in Virginia who would become his sureties, but not, it seems, in South Carolina. The plaintiff Burch residing in that state agreed to become his security on being indemnified by a bond with sureties residing in Virginia ; and accordingly the obligations aforesaid were given for his indemnity, and he became security for costs. It does not expresslj appear when, or how, the obligations were delivered, nor whether delivered before, at the time, or after he became security for costs. Thej' were signed in Virginia and delivered in South Carolina: Of course some time intervened between their date and delivery. They may have been sent by Nolley to his attorney in the suit to be delivered to Burch on his entering into bond as security for costs, if he had not already done so. In natural order, the delivery of the obligations would follow the execution of the bond; and it is fair to presume, in the absence of proof to the contrary, that such was the fact.

But it is immaterial in what order the obligations were delivered and the bond was executed. The whole was one continuous transaction. The substance of it plainly was that Burch agreed to become security for costs, and Nolley agreed to indemnify him. Burch did become such security, and these-obligations were *delivered to him for his indemnity. It must be presumed that they were so delivered with the defendant’s consent. He acknowledged in them that Burch had become security for costs, and is thereby estopped from denying the fact, or showing that it occurred after, instead of before, the obligations were executed. Cecil v. Earley and others, supra 198, and Cox, &c. v. Thomas, &c., 9 Gratt. 312, and cases cited in the latter.

I think the court did not err in refusing to exclude the said records from the jury, nor in giving the instruction which it did; and am therefore for affirming the judgment.

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

Judgment affirmed.  