
    Abner Bird et al. versus John Washburn et al.
    
    The defendants sent by mail to B., one of the plaintiffs,, a bond in which they bound, themselves to pay to B. and K., the other plaintiff, all the money which the plaintiffs should be obliged to pay in consequence of becoming bail to liberate from jai) a prisoner, who was confined on a charge of larceny. K. declining to recognize, B* and a stranger, whom B. promised to indemnify, recognized as sureties for the prisoner, and the prisoner having forfeited his recognizances, the whole amount of them was paid by L$. alone. K., by a writing in which he recited that he had never become bound for the purposes mentioned in the defendants’ bond, assigned all his right and interest in the penalty thereof to B. It was held, that there was a delivery of the bond by the defendants, and an acceptance of it by both of the plaintiffs, (evidenced by their bringing the action and by K.’s assignment;) that it was not of the substance of the bond that both of the plaintiffs should become ball or pay money for the prisoner, but it was a contract to indemnify both or either, according as both or either should pay money in consequence of becoming bail; and that the plaintiffs, as they had jointly the legal interest in the bond, might maintain a joint action upon it for the benefit of B.
    Upon a case stated by the parties it appeared, that this was an action of debt upon the following writing, which was signed and sealed by the defendants in New York, and sent by mail to Bird :—“Know all men by these presents, that we, John Everett and John Washburn, of Litchfield, Herkimer county, State of New York, are held and firmly bound to Abner Bird and Thomas Kendrick junior, of the town of North Brookfield, State of Massachusetts, Worcester county, to pay unto said Bird and Kendrick all the money that they shall be obliged to pay in consequence of their becoming bail to liberate Isaac D. Thompson from Worcester jail, except thirty-five dollars and a wagon and harness, which are in said Bird’s hands, the property of said Thompson.”
    This writing was executed on August 19th, 1826 ; at which time Isaac D. Thompson, a relative of one of the defendants, was confined in Worcester jail, on a charge of larceny, having been ordered to recognize, with sureties, in the sum of $300, for his appearance at the then next term of the Supreme Court.
    Kendrick declined recognizing for the appearance of Thomp son, and Bird then procured one Emory Thompson to recognize in one half of the amount for which Isaac D. was ordered to find sureties, and Bird recognized for the other half in a separate recognizance ; Emory being induced to recognize, by the express parol promise of Bird to save him harmless for so doing. This was in September 1826, and Isaac D. Thompson was defaulted upon his recognizances at the Supreme Court in October 1826. Warrants of distress were duly issued against Bird and Emory Thompson, and the amount thereof was paid wholly by Bird. In order to transfer to Bird all the benefit of the bond, Kendrick signed and sealed the following writing upon the back of it, on December 18th, 1826. “ Whereas I, Thomas Kendrick junior, the person within named, have never become bound for the purposes within mentioned, therefore know ye, that I the said Thomas Kendrick junior do hereby relinquish all my right and interest I may at this time or ever can have to the penalty of the within bond, to the said Abner Bird.”
    It appeared that the defendants had received from Isaac D. Thompson and others an indemnity for having given the bond to Bird and Kendrick. On March 10th, 1827, Washburn addressed a letter to Emory Thompson, in answer to one from him on the subject of the recognizances, in which Washburn says, “ when it is ascertained the sum you have actually to pay, the money will be forwarded to you.” On May 30th, 1828, after Bird had paid the amount of the recognizances, Wash-burn addressed a letter to Bird, in answer to one from Bird, in which Washburn says, “ I see no use in referring the matter, so long as we stand always ready to settle with you whenever you settle my demands down there ; when you pay that debt, we are ready to settle with you.” The debt alluded to was one due from Bird to Washburn, which was then in suit in Worcester county, and was afterwards paid.
    If the plaintiffs could sustain this action, the defendants were to be defaulted, and the damages were to be ascertained by an auditor.
    
      Oct. im
    
    Washburn, for the plaintiffs,
    contended that the true construction of the bond was, a promise to pay to the plaintiffs such sum as they, or either of them, should pay as bail for Isaac D. Thompson , and to show that the action was rightly brought in the name of the plaintiffs jointly, they having the legal interest in the bond, but for the benefit of Bird, who paid the money, he cited Alsop v. Caines, 10 Johns. R. 400 ; Rolls v. Yate, Yelv. 177 ; Anderson v. Martindale, 1 East, 500 ; 1 Wms’s Saund. 154, note 1 ; Montague v. Smith, 13 Mass. R. 405 ; Withers v. Bircham, 3 Barn. & Cressw. 254 ; James v. Emery, 5 Price, 533.
    To the point, that the bond had been accepted by Kendrick, he cited Ward v. Lewis, 4 Pick. 518.
    
      D. Brigham, for the defendants,
    urged that the concurrence of both of the obligees was necessary to a delivery of the bond, and that it had never been delivered to Kendrick. Maynard v. Maynard, 10 Mass. R. 456 ; Jackson v. Phipps, 12 Johns. R. 418. It is true he had the instrument in his hands when he made the indorsement upon it, but that cannot be construed to be a delivery. Fay v. Richardson, 7 Pick. 91. The acceptance by Kendrick, if' there was one, was too late, being after the recognizance was entered into and forfeited. The indorsement however was not an acceptance, but the contrary. And it was ineffectual as an assignment, being made by one only of the obligees.
    But the principal ground of defence is, that no debt has accrued according to the terms of the bond, inasmuch as the two plaintiffs have never become bail for Isaac D. Thompson, nor paid money in consequence of becoming his bail. Littler v. Holland, 3 T. R. 590, and Brown v. Goodman, in note; Phillips v. Rose, 8 Johns. R. 306 ; Cooke v. Jennings, 7 T. R. 377 ; Stanwood v. Scovel, 4 Pick. 422.
    
      July 1831.
   Per Curiam.

One point made by the defendants, we think, is fully settled by the facts agreed. The statement of facts shows, that the bond was executed by the defendants in the State of New York and sent to the defendants by mail. This shows a manifest intention on the part of both defendants to deliver, and such intention, coupled with an act which puts it in the power of the obligees, is a good delivery. So an unconditional delivery to a third person for the use of the obligees, is a good delivery to them, and gives efficacy to the instrument as the deed of the obligors. If it was intended to rely on the point, that the deed was not accepted by both of the plaintiffs, we think the objection is also answered by the facts. In general, the bringing of an action by an obligee, as it affirms the instrument, and treats it as a valid and subsisting deed, is sufficient evidence of an acceptance. But if any thing further were wanting, it is found in the present case, in the assignment from Kendrick to Bird. This assignment recognizes and affirms his legal interest in the covenant, as an obligee ; and although unavailing for the purpose of vesting his legal interest in Bird, because a specialty is not assignable at law, yet it is a good transfer of his beneficial interest, and an authority to his coobligee to sue in his name. The case therefore shows, we think, that the obligation was duly delivered. Here the express contract is with the two plaintiffs jointly, and this gives them a joint legal interest in the contract. We think, therefore, it falls within that class of cases, where, there being an express obligation to two or more to perform some act, though for the benefit of one of them only, yet all may join in bringing the action. Anderson v. Martindale, 1 East, 497.

Another objection made to the plaintiffs’ recovery in this action is, that the obligation was conditional, and by the terms of it nothing is due. The undertaking is to pay to Bird and Kendrick all the money which they shall be obliged to pay in consequence of their becoming bail to liberate Isaac D. Thompson. The action is brought to recover money paid hj Bird alone, in consequence of his having become bail for Thompson, Kendrick not having joined in so becoming bail.

We think it makes no difference that Emory Thompson became bail with the plaintiff Bird, or that he did so at Bird’s request, inasmuch as it is found that Emory Thompson paid nothing in consequence of his having so become bail, and that the whole amount claimed in this action was in fact paid by the plaintiff Bird, as the bail of Isaac D. Thompson. It therefore stands upon the same footing as if he alone had given bail. Then the question recurs, whether, in such case, the defendants, by the terms of this obligation, are responsible.

This contract is essentially a contract of indemnity, and as such, a liberal construction should be put upon it. When made, it was prospective and conditional; it looked to an act to be done, and was an undertaking to indemnify against the consequences of such act. It appears manifest from the contract, though carelessly and informally drawn, that the substantial condition was, the liberation of Thompson upon bail, by them, and upon their responsibility. It appears to the Court, that by the true construction of this instrument, it is not of the substance of this condition that the plaintiffs should personally become bail, or that both should join in the bail-bond, or that both should join in payment of money, in consequence of thus becoming bail. As the obligation was prospective, it was uncertain in what form bail would be required or given. Suppose one surety only had been required, or suppose one only would be received, by the officer whose duty it was to take bail. It seems to us, that that would have been a substantial compliance with the condition of the obligation, and that the words “ they ” and “ their ” were used collectively, and included what should be done by them, jointly, or by either of them, in accomplishing the object contemplated by the contract.

The Court would by no means express a doubt of the authority of that class of cases, which are founded upon the rule, that upon a conditional undertaking, the condition must be strictly and exactly complied with, before an action can be maintained, and that where time, place, or any other mode or form of performance, are part of the condition, such mode or form, however immaterial or even frivolous, must be pursued. But we proceed upon the ground, that in construing this obscure contract, it was no part of the condition, that both the plaintiffs should become bail, or that both should pay, hut it was intended to indemnify both or either, according to the contingent event, that both or either should become bail, and be in consequence compelled to pay money.

We think, therefore, that the action may well be maintained by both, in consequence of the express legal obligation, for the benefit of the one who has been obliged to pay, and that pursuant to the agreement of the parties, an assessor must be appointed to assess the damages.  