
    Goodrum, et als. vs. Carroll, Gov., for use of Foley.
    1. A bond executed by a public officer and bis suveties, though not good as a statutory bond, may nevertheless be binding as a voluntary obligation, and an action at common law be maintained thereupon.
    2. If a deed be delivered to a stranger for the use of the obligee, and he after-wards receive it, it is good from the time it was delivered to the stranger.
    3. If a bond be accepted by the obligee at the time of the plea, it is the deed of the obligor.
    4. The delivery of the bond of a sheriff, made payable to the Governor, for the performance of his official duties, to the clerk of the court, is a delivery to the Gov" ernor; and this is so, though such sheriff’s bond be [not in compliance with the statute under which it is taken.
    This is an action of covenant which was instituted in the circuit court of Giles, by Carroll, governor, for the use of Foley, against Goodrum and others, who were the securities of Thomas C. Porter, former sheriff of that county. The bond on which the suit was brought, was made payable to William Carroll,'governor, and his successors in office.
    The directory mandates of the statute, in reference to sheriffs’ bonds, not having been complied with, it was decided that no motion would lie on this bond. See Goodwin vs. Saunders and Head, 9 th Yerger, 91. Porter had collected money by execution in favor of Foley against Field, and failed to return the execution, or pay the money, and this action was instituted against his securities. The pleadings put in issue the delivery of the bond by the defendants to Carroll and his acceptance thereof. It was tried at the July term, 1841, by Dillahunty, judge, and a jury of Giles county, and a verdict and judgment rendered for the plaintiff. The defendants appealed in error. \
    
      Meigs, for plaintiffs in error.
    
      Goode, for defendant in error.
    Bonds required by statute to be taken in a particular manner, are good as common - law bonds although the requisites of the statute may not be complied with. Mallory vs. Miller, 2Yer. Rep. 113: Jrlibbits vs. Canada, 10 Yergrs Reports, 465: 7 Massachusetts Reports, 98: Freeman vs. Davis, et al. do 200: 1 Dev. Rep. 156: 4 North Carolina Rep. 268:2 Hawks, 366, 3 do. 42: 2 do. 5. Such bond, if required by statute to be taken payable to some officer of the State, should be sued upon in the name of the payee or obligee therein, and not his official successor. Hibbits vs. Canada, 10 Yer. Rep. 465. This bond has been decided by the supreme court not to be statutory. Goodwin, et al. vs. Saunders & Read, 9 Yer. Rep. 91.
    This suit being instituted, thenj upon this bond, not as a statutory, but common law instrument, all that is necessary in order to enable the plaintiff to recover, is to show that it was signed and sealed by the defendants, and delivered to the plaintiff. No question arises upon tbe signing and sealing, both being fully established. Does the evidence show a delivery to and acceptance by the plaintiff? Any act tantamount to a delivery will do, although the obligors may not say we “deliver the bond,” such as throwing it on the table, giving it to a third person, either the agent of the obligee or a stranger, or such like. 9 Law Lib. Hurlst. on Bonds, 5: 5 Barnwell & Creswell, 692: Sheppard’s Touch. 58: Verplank vs. Story, 12 John. Rep. 536. Or if the bond is signed and sealed, and the obligor leave it on the table behind him. 4 Cruise’s Dig. 30: Cro. Eliz. 7: Shep. Touch. 55-6, n. 1 and 3: Com. Dig. (Fait, A 3.) Or any act evincing an intention to deliver, are sufficient. Goodrich vs. Walker, 1 J. C. 250.
    A delivery to the clerk of a non-official bond is good, unless the obligee refuse. 3 North Carolina Rep. 384: 4 do. 270. This last case decides that if a bond is found among the papers in the office, the jury is authorised to infera delivery. 1 John. 254. The production-of the bond in court by the attorney of the plaintiff is prima facie evidence of acceptance.
   Gresn, J.

delivered the opinion of the court.

The bond upon which this suit was brought, was executed by the defendants to Wm. Carroll, Governor of Tennessee, and his successors in office, in the penal sum of $10,000, conditioned that T. C. Porter, who had that day been appointed sheriff of Giles county, should faithfully 'execute and perform the duties of that office.

The evidence is, that this bond was written by 'the deputy clerk of the county court, and was signed by the defendants in the office of the clerk of that court, and left upon the table, from whence it was taken by said deputy, and filed away among the papers of that office where it had remained, except when it had been applied for and used by attorneys, in this case and in other cases against these defendants. Porter was qualified and acted as sheriff, and as such received an execution in favor of Foley against Field, upon which he received the money, but had failed to pay it over, or return the fi.fa.

This was not an office bond according to the statute, because the penalty- is ten thousand dollars, instead of twelve thousand dollars, as required by the statute, and because it was not approved and recorded as the statute directs. It has been decided by this court (10 Yerg. Rep. 465,) and is admitted, that a bond executed by a public officer, and securities, though good as a statutory bond, may, nevertheless, be binding as a voluntary obligation, upon which an action at common law may be maintained. 3 Dev. Rep. 384: 4 do. 270.

The .only question seriously urged in this case, is as to the delivery of this bond. If a deed be delivered to a stranger for the use of the obligee, and he afterwards receive it, it is good from the time of the delivery to the stranger. Sheppard’s Touchstone, 57-58: Coke, 225, note w. If a bond be accepted by the obligée at the time of the plea, it is the deed of the obligors. 3 Rep. 28. 5 do. 119. In this case, the bond was executed by the plaintiffs in error, under the belief and persuasion, that it was a good statutory bond, and consequently, with the intention, that it should be kept for the use of Carroll, to be sued on, as an office bond. As to the actual fact of such intention, no one can doubt. But if it turn out that they were mistaken, that it was not a valid office bond, can that legal construction of the instrument change the fact of their intention in its execution and delivery? Surely not. The facts are immutable, however parties may be mistaken as to legal consequences.

The .only question then is, has Carroll received it? We think the commencement of the suit on the bond, and the production of it in court by the attornies of the plaintiff, is sufficient evidence,pri-ma facie, of his acceptance; and that therefore at the time of the plea pleaded, the obligee had received the bond.-

In 3 Dev. N. C. Rep. 384, it is held that a delivery of such a bond as this to the clerk is sufficient, unless the obligee refuse it. In 4 Dev. N. C. Rep. 271), the same doctrine is reiterated, and indeed all the cases in our court, necessarily affirm the same thing. For, although the point was not made directly, yet it was necessarily involved, as in no case was there proof of an actual consent to receive the bond by the obligee.

But counsel insist, that in all these cases the bonds were delivered according to the directions of the statute. A compliance with the forms of the statute, upon this point, can make no difference, as they were not statutory bonds; the circumstances attending their execution were only evidence of the intention of the obligors in making them, and we have seen that the intention of the obligors in this case, is as clearly shown as though all the forms of the statute had been complied with. So that the evidence of reception by the obligee is as strong in this case as in any one of the cases heretofore decided upon this subject. Let the judgment be affirmed.  