
    W. A. Grourdin vs. J. H. Read, Jun.
    Though a surety may by parol authorize his principal to fill up blanks in the bond, with the date and the name of the obligee, yet before the blanks are filled up and the bond delivered he may revoke the authority, and it makes no difference whether the obligee, in whose name the blank is afterwards filled up, knew when he took the bond that tfye authority was revoked ' or not.
    BEFORE GLOYER, J., AT GEORGETOWN, SPRING TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows :
    “The action was debt on a penal money bond against the defendant and John M. Commander. Commander having confessed judgment, the action proceeded against John Harleston Read, Jun., and a verdict was rendered for the defendant at Fall Term, 1851.
    “ This was a new trial, ordered on plaintiff’s motion, and the evidence (which is in writing, and may be added to this report) doés not vary the case made on the first trial. See (xourdin vs. Commander and Head, 6 Rich. 497.
    “ In considering the several grounds of appeal, the Court substantially decided the various questions that arose on the second trial, and the presiding Judge did no more than read, and direct the attention of the jury to, the principles settled by the Court, and applicable to the case, without intending to withdraw from the jury the decision of- questions legitimately within their discretion.
    “ The defendant’s counsel requested that the jury should be instructed, that if the authority of Read to Commander to fill up and negotiate the bond had ceased, the continued custody of the bond did not, and was not sufficient to confer such authority ; and that the question, whether such authority had ceased is a question of fact for the jury.
    
      
      “ The jury was instructed, that if they were satisfied, from the evidence, that the authority had- ceased, and that fact had been brought home or communicated to the plaintiff, he would be affected by such notice.
    “A verdict was given for the plaintiff.”
    The defendant appealed, and now moved for a new trial, on the grounds: v
    1. Because his Honor erred in not charging the jury, that the validity of the bond depended upon the fact of Commander’s having conformed to the authority and instructions given him by the defendant, John Harleston Bead: and that if he had departed from these in any important particular, the bond, when completed, would be invalid.
    2. Because his Honor erred in not charging the jury, that if the defendant, John Harleston Read, had withdrawn any authority at first given to Commander to negotiate the bond : or if such authority did not continue to exist at the time that the bond was filled up and delivered to the plaintiff, that it could not bind the said defendant as his deed.
    3. Because his Honor erred in not charging the jury, that it was a question of fact to be determined by them, whether any authority given to Commander to negotiate the bond had not ceased or been determined, expressly or impliedly.
    4. Because his Honor erred in charging the jury, that they had no discretion in the verdict which they were to give, but were bound, under the opinion of the Court of Appeals, to find a verdict for the plaintiff. '
    
      Mitchell for appellant.
    
      Petigru, Simonton, contra.
   The opinion of the Court was delivered bj

WITHERS, J.

It has been heretofore adjudged in this cause that Commander might be duly authorized by parol, as the agent of the defendant, to fill up a penal’bond, signed by him as surety of Commander, with the date and the name of the obligee — being blank in those particulars when it was signed— and to deliver the same. Upon the last trial below the defence urged, that before these acts by Commander, his authority, as above defined, had been revoked; and the Circuit Court held that this being proved, it would operate a good defence, provided the fact of such revocation had been brought home or communicated to the plaintiff. The question presented is whether it was proper to qualify the question of authority revoked with the qualification of notice to the plaintiff.

We think such charge to the jury was erroneous. The paper in question is not one of the instruments which enter into the currency of commerce. The right of Commander to make it complete and negotiate it by delivery to a third person, as a binding obligation upon Read, depends upon the authority derived from Read for that end, express or implied. Gourdin’s title rests upon the fact of the existing power of Commander at the time he inserted his name as obligee and delivered it, to do that as the act of Read — and the principle would be the same as if the amount in penalty or condition had been left blank, and filled up. The plaintiff judged of the creation and continued existence of Commander’s authority from the circumstances before him. He also took the risk of its revocation from a view of the same circumstances. Whether he had notice of its revocation does not affect the question; yet for any thing we can know this may have been the pivot upon which the case turned with the jury. As matter of right, therefore, the case must be tried again, that the jury may enquire whether Commander was authorized by Read, expressly or by proper implication, to treat the bond, the subject of this action, as he bas done — and if so, whether he revoked that authority, before the transaction on the part of Commander and the plaintiff.

New trial ordered.

Wardlaw and WhitNBR, JJ., concurred.

Glover, J. I dissent.

hfToNRO, J., having been of Counsel gave no opinion.

Motion granted.  