Iredell v. Barbee.

served, then the verdict should be set aside and a non suit entered.

The jury found for the plaintiff; and on another day of the term his Honor delivered his opinion adverse to the plaintiff's right of recovery. Whereupon the verdict was set aside and judgment of non-suit entered, from which the plaintiff appealed to the Supreme Court.

Norwood, for the plaintiff.

Waddell and J. H. Bryan, for the defendant.

PEARSON, J. Such a construction should be given to every deed, as to give it effect, and carry out the intention of the parties, "Ut res magis valeat quam percat,” is a well ruled maxim of law, formed upon good sense and calculated to promote the ends of justice.

It is clear that King was called to take possession of a large estate belonging to Mrs. Fann, in consequence of his entering into the bond now sucd on, and that the de· fendant as one of his sureties, undertook, that he would pay over the estate to such persons as might be lawfully authorised to receive it. King did accordingly take possession of the estate, and has failed to account for it to the representative of Mrs. Fann. It would be a matter of regret, if, from any defect in the bond or any legal objection, the defendant could evade the performance of an undertaking, deliberately entered into by him, and throw the loss upon Mrs. Fann's estate.

The defendant has put himself upon his legal rights, as he was at liberty to do, and the question is, whether he is in law bound to make good the loss.

The counsel for the plaintiff properly admitted, that the paper could not be sustained as an official bond, and declared upon it as a common law bond.

It was proved, that the bond was signed and sealed and delivered to the clerk of Orange County Court by the

Iredell v. Barbee.

defendant. We think this was a sufficient delivery. A stranger may accept the delivery of the bond and it is good, unless the obligee refuses to ratify the delivery. but in the absence of proof to the contrary such ratification is presumed.

The second objection is, that the bond is void for uncer tainty and repugnance. Utile per inutile non vitiatur, is a maxim of law, by which all useless and unmeaning words are to be rejected, provided enough remain to make the deed sensible. The words, "justices of the Court" &c, "to be paid to the said justices or the survivors of them" &c. are useless and unmeaning, and convey no de. finite idea, and are, therefore, to be rejected, leaving an obligation to pay James Iredell the sum of ten thousand dollars. Fitz v. Green, 3 Dev. 291, Vanhook v. Barnett, 4 Dev. 263, Richardson v. Wall, 1 Ired. 297, are cases in point and fully sustain this position.

The third objection is, that, as the verdict of the jury did not find Elizabeth Fann either a "lunatic" or an idiot," the appointment of a guardian by the Court was a nullity, and this bond given by the defendant, was void.

It is true, the Court had not power to appoint King the guardian of Mrs. Fann and authorise him to take her estate into his possession, but the defendant will not be heard to make this objection; he concurred in the act; his bond solemnly asserts that. King was appointed guardian and had power to take the estate into possession, and after King has taken the estate into possession and wasted it, it is not for him to say, that it was unlawful, and, therefore, that he is not bound by his undertaking deliberately entered into. Upon that agreed state of facts, "his mouth is shut" and he shall not be allowed to take advantage of his own wrong.

The technical rules of the doctrine of estoppels are said to be odious, but there is no rule better calculated to do justice, and exclude dishonesty, than that by which, when

Iredell v. Barbee.

one solemnly admits a fact either by his own words or acts, and it is acted upon, he shall not escape from liability, by being heard to gain say it. It violates all idea of justice for the defendant to say, that it was against the policy of the law for him to give the bond, and thereby enable King to invade the rights of Mrs. Fann, and there. fore, that he should not be bound to answer for the acts of King as he had undertaken to do. Mrs. Fann might have complained, but he has no right to do so. The illegal appointment was not the consideration, nor was the bond the inducement for making the appointment: it was a collateral security taken to insure a faithful discharge of duties incident to the appointment. The case of the United States v. Manin & others, 2 Brockinbrough 115, is directly in point. In that case, Manin had been appointed to an office by the Secretary of War, and had given bond, with the other defendants as sureties; it was ad mitted, that the appointment was void, and was agains: the law and its policy, as the appointment ought to have been made by the President, by and with the advice and consent of the Senate; but it was held that the defendants could not avail themselves of the illegality of the appointment, and were liable for all moneys received and not accounted for. In delivering the opinion, Chief Jus tice MARSHALL uses this language, "the appointment is illegal, but does that render the bond void? "It was given in the confidence that James Manin was legally appointed to office. Does the illegality of the appointment absolve the person appointed from the legal and moral obligation of accounting for public money, which has been placed in his hands in consequence of such ap pointment? If the policy of the law condemns such appointments, does it also condemn the payment of moneys received under them?"

The judgment below must be reversed, and a judg

McNorton v. Robeson.

ment entered for the plaintiff upon the verdict, according to the agreement of the parties.

PER CURIAM. the plaintiff.

Judgment reversed and Judgment for

JOHN MCNORTON & AL. JOHN A. ROBESON.

A petition to set aside the probate of a will, on the ground of the want of citation of the next of kin, will not be granted for that cause alone, but merits anust be shewn, and it must appear that the former proceedings resulted wrongfully, and that the interests of the petitioners, if under disability themselves, were not duly defended by those who undertook to defend them.

A petition to set aside the probate of a will, on the ground of newly discovered testimony, on points to which evidence was given at the probate of the will, will not be granted, unless such testimony not only repels the adversary's charge, but also destroys his proofs, by shewing that the former verdict was obtained by surprize and perjury.

The case of Peagram v. King, 2 Hawks. 295, cited and approved.

Appeal from the Superior Court of Law of Bladen County, at the Fall Term, 1845, his Honor Judge CALD WELL presiding.

This is an application to set aside the probate of an unattested script, as a will of John Kea deceased, disposing of his personal estate. It is made by three of his neices, who are the children of a sister of the party deceased, who died before him. Their names, were Lydia, Elizabeth, and Sarah King, and they and their husbands bring this suit. The allegation states, that the paper was propounded in 1833, and that it was contested by

McNorton v. Robeson.

some of the rest of kin of the deceased and an issue was made up of devisavit vel non, which was tried in the County Court, and an appeal in the Superior Court, and that thereon sentence was pronounced for the paper in 1833, and the executors named in it obtained letters testamentary thereon. The allegation farther states, that at that time, the parties, Lydia, Elizabeth and Sarah were respectively under the age of 21, and "were never legally cited to witness the probate of the said paper writing, nor were they in any proper manner made parties to the said contest, and that since the said paper was established they have intermarried with the other petitioners, the said Sarah being, at the time of her marriage, under the age of 21; and they submit, therefore, that they are in no way bound by the said proceedings." The allegation further states that these parties have been informed and believe, that the script was neither in law nor in fact the will of the deceased, but was a forgery: that within six months before instituting this suit they had learned, and believe they would be able to prove, that shortly after the death of John Kea, John A. Robeson, (in whose hand writing the will is, and who is one of the executors and the father of a lad to whom one half of the estate is given by the paper) and William Jones (who is the father of another lad, to whom the other half of the estate is given) held a secret meeting in a room of the said Jones, in which one Hamilton Davis and one Benjamin Davis were accustomed to sleep, and that they were ordered by Robeson and Jones to leave the room, which they accordingly did, but not until they were enabled to discover, that the said Robeson was engaged in framing some instrument of writing, though they could not tell what, but discovered that the said parties, Robeson and Jones, were anxious to conceal it that these parties expect to prove by a number of witnesses, whose knowledge of the matter has recently come to their ears, that the signature to the paper