
    Executors of Alexander Gray, deceased, v. George Rumph.
    A paper with Wanks as for a penal bond, the condition only filled up with the sum but not the name of the obligee, dated, and signed by the defendant, under the circumstances of the case, perfected and set up as a bond, and payment decreed. [#8] • '
    Colleton, January Term, 1834. — Before Chancellor Johnston.
    The object of this bill was to perfect and set up the following paper as a bond, and to compel the payment thereof.
    State op South Carolina :
    Know all men by these presents, that held and firmly bound unto in the full and just sum of certain attorney, executors, administrators or assigns. To which payment, well and truly to be made and done, I bind myself, and each and every of my heirs, executors and administrators, firmly by these presents, sealed with my seal, and dated the twenty-fourth day of June, A. D., one thousand eight hundred and twenty, and in the forty-fourth year of American Independence.
    The condition of the above obligation is such, that if the above bound heirs, executors or administrators, shall and do, well and truly pay, or cause to be paid unto the above-named certain attorney, executors, administrators or assigns, the full and just sum of ten hundred and thirty-one dollars twenty-four cents, with interest from the date, on or before the first day of January, which will be in the year of our Lord one thousand eight ^hundred and twenty-one, without fraud or further delay, then the above obligation to be void and of L none effect, or else to remain in full force and virtue.
    George Humph, [l.s.]
    Signed, sealed and delivered! in presence of )
    The bill states that, as appears by the books of the plaintiffs’ testator, who was a merchant, the defendant was indebted to him $1031 24, which sum, according to an entry in the books, is credited in full,,by bond of the date of the foregoing. That the practice of the testator was to take such bonds for debts due to him, which were afterwards filled up-; and that this paper, corresponding in amount and date with the books, was intended by the parties as a bond, and to be in settlement of- that account.
    The answer of the defendant admits that he signed the paper, but denies that it was intended or considered as a bond, but that he signed it at the request of Gray, merely, as he said, to close the books, and that they would come to a settlement at some future day. That he had demands against Gray, by which he considered the book account fully paid. That the paper in question wants the legal requisites of a bond, and to establish it as such, would operate as a fraud on him; and if it is not so established, the statute of limitations is a bar to the demands against him.
    It was admitted that there was an entry on Gray’s books against the defendant for $1031 24, and that he is there credited as stated in the bill. And the plaintiffs further showed, that in 1808, the defendant confessed a judgment to Gray, on a paper purporting to be a bond and so'described in the declaration, filled up in the same manner and with the same omissions as that now in question.
    The Chancellor held, that according to the decisions of our Courts, such a paper as that now attempted to be set up is void at law; and that the equity to set it up is sworn off by the answer, there being no sufficient proof to the contrary. He accordingly dismissed the bill.
    The plaintiffs appealed on the ground, that under the circumstances of the case, the Chancellor should have established the instrument as a bond and decreed payment thereof.
    
      Memminger,
    
    for the appellants, contended, that the books of the *8] plaintiffs’ testator proved the existence of the debt, which should *be disproved by other evidence than the answer: that the signature to the paper being admitted, it was manifest, notwithstanding the answer, that the parties regarded it as a bond; and it is the province of a Court of Equity to supply accidental omissions or mistakes in form, in the execution of writings. Finch v. Finch, 1 Ves 545; Gillespie u Moon, 2 John. Ch. 585; 5 Ves 551; 3 Br. C. C. 229 ; 2 Eq. Rep. 115 ; 3 lb. 84 ; 1 Day’s Ca. Er. 139.
    
      Elmore and Edwards, contra.
   O’Neall, J.

In any point of view in which we consider this case, it seems to me that the plaintiffs are entitled to relief.

The defendant signs and seals a paper with blanks for a penal bond, dated 24th June, 1820. Underneath is a condition to pay to the sum of $1031 24, with interest from the date on or before the 1st January, 1821. Can there be a doubt that he intended it as a bond ? The intrinsic evidence of the thing itself, shows that it was so intended; a delivery is to be presumed from the fact that it is found in the possession of the testator; indeed the defendant’s answer does not deny that it was delivered. If the condition had contained the name of the obligee, I should have thought it a perfect single bond. As it is, it can have no legal effect.. The only question is, whether equity will perfect it ? The defendant’s intention to execute it as a penal bond with a money condition underwritten, is, as I have already shown, apparent. That the plaintiffs’ testator received it in the same character, is manifest, from the entry of credit in his books of the same date and for a like sum. Put the case, therefore, upon the footing of either mistake or agreement, and the plaintiffs would have the right to have the blanks filled up, and the bond thus perfected as a legal instrument. It is said, however, that this cannot be done, inasmuch as the defendant in his answer denies that it was intended or considered as a bond. This is fully contradicted by the paper itself and the testator’s books, and cannot be allowed to prevail against them.

But concede that the case must be judged of by the defendant’s answer. He has admitted that he signed the paper exhibited, and that it was intended by Gray and himself to stand merely as a memorandum of a sum assumed to be due, so-that the books might *be closed, and that the amount really due was to be settled at a future day. In this L point of view, he has admitted enough to entitle the plaintiffs to recover. The admission of the signature carries with it an admission of the seal, unless the latter had been denied. The defendant in his statement impliedly admits a delivery to the testator, Gray ; so, that, by specialty, he admits that the sum of $1031 24 is due to the testator, unless it should be reduced by the proposed future settlement. This makes the paper, when the intention of the parties is carried out, a bond for $1031 24.

There is, in this view of the case, no pretence upon which the plea of the statute of limitations can be supported.

It is ordered and decreed, that the Chancellor’s decree be reversed; that it be referred to the commissioner to ascertain and report whether any and what sums are due to the defendant by the plaintiffs’ testator, and that such sums, at the day when due, be deducted from the amount admitted to be due by the paper of the 24th June, 1820, which is hereby set up as the bond of the defendant; and to report whatever balance may still be due to the plaintiffs by the defendant, on account of interest as well as principal due on the said bond, which balance, together with the costs of this suit, the defendant is hereby decreed to pay.

Johnson and Harper, Js., concurred.  