
    Harvey B. Hall and Sephaniah E. Geiger v. Charles T. Parker, survivor of himself and David Verplanck deceased.
    
      Bond — Surety’s liability when principal does not sign.
    
    The sole liability of sureties upon a bond which names their principal as an obligor, but which he has not signed, cannot be established without positive proof that they delivered the bond to be operative against themselves alone.
    Error to Calhoun.
    Submitted June 20.
    Decided Oct. 9.
    Assumpsit on bond. Defendants bring error.'
    
      James N. Robinson for plaintiffs in error.
    
      J. G. Patterson and W. IP. Brown for defendant in error.
   Campbell, C. J.

Eecovery was had below upon two bonds signed by Hall and Geiger, one of which was on its face drawn up as a joint security with one Lewis Hall, to secure costs in a case where Lewis Hall was plaintiff, but not signed by Lewis Hall.

The court below allowed Geiger to be questioned whether he had not before signed bonds with Harvey 33. Hall without requiring Lewis Hall to sign them as a condition for the signature of witness. The jury were also instructed that the burden of proof was on defendants below to show that they signed on condition that Lewis Hall should sign also.

This bond was upon its face a bond in which Lewis Hall was named as a party and as the person whose obligation was to be secured, who was therefore the principal obligor. It was immaterial whether or not Geiger had signed other bonds- with Harvey Hall and not required Lewis to sign. This was a bond which on its face required such a signature, and if it were admissible to prove one contract by the fact that the parties had on some occasion made another, — which is certainly a novel proposition, — this ease would bear no resemblance to one where Lewis was a stranger, and not principal.

We decided at the June term, in Johnston & Vincent v. Township of Kimball, ante, p. 187, as we practically decided in this case when formerly before us (37 Mich., 590), that there was no presumption that sureties had agreed to waive the signature of a principal whose name appeared as an obligor with theirs in the bond, and that if such a bond could be established as a liability against them without his signature, it could only be by positive proof that they had delivered it to become operative as against themselves alone.

The judgment must be reversed with costs and a new trial granted.

We cannot but express our surprise at the rulings below in a case which had already been reversed on the same question. This is a litigation in which the obstinacy of parties has made costs far exceeding the amount in controversy. Such exhibitions of litigious ugliness are not creditable.

The other Justices concurred.  