Guild v. Thomas. the distinction between a deed and a bond in respect to conditional delivery. He says: "On the delivery of the deed of the grantor to the grantee, as and for the deed of the former, no matter what the verbal conditions, the title, co instanti, vests in the grantee, and can only be divested by process of law or by the voluntary execution of a deed by the grantee. A deed once delivered and accepted, its re-delivery by the grantee will not re-vest the legal title in the grantor. But a bond carries no title; it gives on its face only a right of action if the condition contained in it is not performed. Its return to the obligor as a matter of course destroys such right of action. While, therefore, a deed may not be given to a grautee in escrow, with verbal conditions, on the performance of which it is to take effect, a bond may be given with conditions to the obligee, because the obligee takes nothing by his bond but a right of action, which, to reuder available to him, he must enforce by action, and which may be resisted by the obligor, showing that the condition had not been performed, and therefore there was no debt-not urging the written contract, but showing that it never had any legal existence, having never in fact been delivered." Chief Justice DENIO, who also wrote an opinion in this case, seems to base his decision more on the principles of agency, holding that "until the deed is delivered to the party in whose favor it is intended to operate, or to some person in his behalf and for his immediate benefit, it is in the power of the parties who are eventually to be bound by it, although they have signed and sealed it, to withhold the delivery altogether, or to create an agency for its custody, and to direct its delivery upon any contingency or condition which they may not see fit to prescribe." The same principle was laid down in King v. Smith, 2 Leigh (Va.), 157, where A executed and delivered on condition that B should also execute, and B executed and delivered on condition that C should also execute but C did not execute; it was held that neither A nor B was liable. The same principle was also recognized in Tindall v. Bright, Minor (Ala.), 103. Bibb v. Reid, 3 Ala. (N. S.) 88, is consistent with the principal case, but is based to some extent on the Pawling Case. Tho court say, "we are satisfied, that on principle there can be no difference between a conditional delivery to a stranger or to a co-obligor; that in either case the deed"- this was the case of a boud -་་ cannot be operative until the condition is performed, and such is clearly the weight of authority at the present day." Perry v. Patterson, 5 Humph. 133, A. D. 1844, was the case of a note, delivered to the creditor, upon condition, and was decided harmoniously with the principal case, without much consideration, the court remarking, "The law upon this point is settled beyond controversy, and needs at this day no investigation." The same may be said of Sessions v. Jones, 6 How. (Miss. Rep.) 123, A. D. 1842, where a bond was delivered conditionally to the principal obligor, the court merely remarking: "It is shown that the bonds were absolutely void, and that Jones was not to be bound at all unless the bonds were also sigued by Stone." Clements v. Cassilly, 4 La. Ann. 380, A. D. 1849, holds that where in a bond on attachment three persons are named as principals and one as surety, and only one principal and the surety sign, the latter will not be bound in the absence of evidence to destroy the presumption that he expected the three persons named as principals to be bound as such, or that he would have any recourse against them, if he paid the amount. To this principle the court cite, Wood v. Washburn, 2 Pick. 24, where the same doctrine was held, without consideration, as to an administrator's bond, not signed by the administrator, the decision being that it was not a probate bond; and Bean v. Parker, 17 Mass. 591, which was the case of a bail bond not signed by the party arrested as principal. Guild v. Thomas. Some of the cases go even further, and hold that a discharge of one surety, by reason of an unfulfilled condition, operates to discharge others who have subsequently executed the same obligation unconditionally. Thus in Ward v. Churn, 18 Gratt. (Va.) 801, a joint bond, drawn with the names of the principal and four sureties inserted, was executed and delivered by all but the last-named surety, but the delivery by the first two sureties was on the condition that the other two named should execute it; it was held not only that the sureties so conditionally delivering were not bound, but that the surety delivering unconditionally was not bound, the bond being void as to the former was void also as to the latter. In Seely v. People, 27 Ill. 173, a joint and several bond was drawn for execution by Heaton, Seely, and Morrow: when presented to Seely, Heaton's name was signed to it, and Seeley suppsed he had executed it, but his signature was forged; held that Seely was not liable. Chief Justice CATON said: "By a fraud practiced upon the defendant by means of the commission of a high crime he was made to assume a different and a greater liability than he intended or supposed he was assuming when he executed the bond. It is not like the case where the surety when he signs the bond is assured and made to believe that others will afterward sign it. In that case he acts upon a simple assurance that another will do an act which he knows may be defeated or prevented by various accidents, and he must therefore take the risk of such assurance being fulfilled. But in this case he acted upon an apparent fact," etc. In Pepper v. State, 22 Ind. 399, a bond was drawn up with certain names inserted as obligors, and presented by the principal to one of those persons for signature. and he signed and delivered it unconditionally, there being several signatures previously attached; it afterward appeared that one of those previous names was a forgery, and that some of the other previous signers had executed upon conditions which were never fulfilled; it was held that the bond was void as to the surety who executed unconditionally, unless it were shown that he had knowledge of its invalidity as to the others at the time he signed it. The court Abserved: "As to those who signed without any false representations, promises or pledges having been made to them, we are clearly of opinion that the bond is of no binding force. Each man had a right to rely upon the fact which appeared before him on the bond, namely, that he was entering into a contract in which certain other men whose names were there signed, were jointly bound with him. When they are discharged it increases his liability, and in fact it is no longer his contract, and the contract which he supposed he was making." In Chamberlin v. Brewer, 3 Bush (Ky.), 561, a plea by the sureties on a joint official bond averred that when they signed it the name of B. as a surety was on it; that they signed it in the presence of the county court, which, together with the principal, represented that B. had signed the bond; whereas he had not signed it, and it was not his act, and he was not bound, and that it is not their act and they are not bound; held, that the plea set up a good defense of non est factum. One of the earlier cases holding a contrary doctrine to the principal case is Millet v. Parker, 2 Metc. (Ky.) 608, A. D. 1859. Here the delivery was to the principal obligor, and the decision proceeded on the ground that the delivery enabled him to apply the bond as it was applied. Of the Case of Pawling, it is here remarked: "It does not appear to whom the instrument was delivered, or who had the possession of it at the time of its conditional execution. The position contended for is not therefore sustained by any thing that was decided in that case." The court observed: "If, however, a surety be permitted to sign an instrument, and make a conditional delivery thereof to Guild v. Thomas. the principal obligor, with the effect of imparting to the writing the character of an escrow, the security against imposition, which is furnished by the rule that requires the conditional delivery to be made to a stranger, is completely removed, and there is no security against the perpetration of the most gross frauds. The principal obligor is the person who desires to use the instrument for his own purposes; the surety, by putting his name to the paper, and leaving it in the possession of his principal, enables him to make use of it, and impose on a person who is ignorant of the secret agreement between him and the obligors. In such a case the surety trusts to the promises of his principal; he does not deliver the writing to him as an escrow, but as his obligation, which he is not to use until he procure an additional surety. If, however, he violates the trust reposed in him, and makes use of the writing, the surety, although his confidence has been abused, is bound by the instrument. The most authoritative decision holding to the contrary of the principal case is Dair v. United States, 16 Wall. 1, A. D. 1872. The syllabus is as follows: "A bond, perfect, upon its face, apparently duly executed by all whose names appear thereto, purporting to be signed and delivered, and actually delivered without a stipulation, cannot be avoided by the sureties upon the ground that they signed it upon a condition that it should not be delivered unless it was executed by other persons who did not execute it, it appearing that the obligee had no notice ~ of such condition, and there was nothing to put him upon inquiry as to the manner of its execution, and that he had been induced upon the faith of such bond to act to his own prejudice." This decision is based on the doctrine of estoppel· in pais. The court concede that “if the name of Joseph Cloud appeared as a co-surety on the face of this bond, the estoppel would not apply, for the reason that the incompleteness of the instrument would have been brought to the notice of the agent of the government, who would have been put upon inquiry to ascertain why Cloud did not execute it," etc. The case of Pawling v. United States, 4 Cranch, 218, is distinguished by the circumstance that there the name of the co-surety, who did not sign, appeared on the face of the bond. The same doctrine had been previously held, and upon the same ground, in State v. Pepper, 31 Ind. 76, A. D. 1869. Of the Pawling Case it is here remarked: "When it is considered that this is the original decision upon which all the cases that assume to release the surety from liability, when the name of the co-surety does not appear on the face of the instrument, are based, the entire want of authority to justify their departure from sound principle can be appreciated." The court also distinguished Oneale v. Long, 4 Cranch, 60, and Harper v. State, 7 Blackf. 61, on the ground that the question there was simply one of alteration, the principal having inserted the names of other sureties, without the defendant's kuowledge or consent. In this decision much weight was attributed to State v. Peck, 53 Me. 284, A. D. 1865. This case gives the most learned review of the authorities of any which we have met. One peculiarity of this case must be remarked, namely, that "this conversation of Cummings was with a co-surety and co-defendant, and, so far as appears, never communicated even to Peck, the principal in the boud." The cases cited and commented on here are: Duncan v. United States, 7 Peters, 435; Wells v. Dill, 1 Martin, 592; Scott v. Whipple, 5 Me. 336, cases of apparent incomplete execution; Huskins v. Lombard, 16 Me. 140, where the bond was so written that it seems to have been contemplated by the parties that it should be signed by several, and so the oral condition was held effectual; Fertig v. Bucher, 3 Barr. 308, and Quarles v. Governor, 10 Humph. 122, where the agreement was by the agent of the obligee, etc. People v. Bostwick was strongly disapproved, and Millet v. Parker was approved. McCormick Guild v. Thomas. v. Bay City, 23 Mich. 457, A. D. 1871, is also hostile to the principal case. The court say: "It was in his power to insert the names of the desired sureties and to make the bond joint and not several. He took none of these precautions. On the other hand he put it in the power of the principal debtor to get as many or as few sureties as he chose, and to deliver the bond in a shape and under circumstances raising no suspicion." The case of People v. Bostwick must be considered as shaken if not overruled by Russel v. Freer, 56 N. Y. 67. Here a bond was prepared, executed by H. and F., and delivered to C., the name of J. appearing as co-obligor, and C. telling them that J. would also sign it, and they signing it with that expectation, but it not appearing that they made his signing a condition of delivery. The name of J. was subsequently stricken out of the bond, without their knowledge or consent, and the bond was thus delivered to the obligee, who had no knowledge or notice of these facts. Held, that H. and F. were liable. The court say: "The appellants, by executing the bond, and leaving it with Dolson, the principal, placed it in his power to deliver it as a valid and complete instrument," etc. Of People v. Bostwick they say: The facts do not bring the case within the principle" of that case, assuming that that case was well decided, which may well be questioned. But in that case stress was laid and the judgment was based upon the fact that the agent of the principal was directed by the sureties who executed the bond not to deliver it to the auditor unless it should first be executed by Dickerson as co-surety, and that he did deliver it without doing this. No such fact is found in this case." The court in this case cite with approval the cases of Dair v. United States, State v. Peck, State v. Pepper, and McCormack v. Bay City. The same doctrine was laid down in Webb v. Baird, 27 Ind. 368. The latter case followed the Maine case and the case of Deardorff v. Foresman, 24 Ind. 481. This last case, however, was one of commercial paper, which is manifestly governed by different rules, and was distinguished for that reason by the court in its opinion from the case of Pepper v. State, supra. See, to the same effect, State v. Garton, 32 Ind. 1. In all these cases which are cited above as holding a different doctrine from the principal case, the bonds were executed by all the obligors whose names were recited in the body, and the obligees had no knowledge or notice of the conditional delivery. If these facts, or either of them, had been otherwise, it was conceded that the rule would be the contrary. We think ourselves warranted in drawing from the foregoing cases the following conclusions: 1. In the absence of all evidence of a conditional delivery by an obligor who has signed a bond, the presumption of law is that he has consented to the delivery to the obligee; whether the bond is executed by all the persons named in it as obligors or not; but this presumption may be rebutted; and it would seem that it does not apply to statutory bonds required to be executed by the principal and not so executed. 2. Where a bond is not executed by all the persons named in it as obligors, and it is proved to have been delivered by some of the persons executing it upon the condition that the others named as obligors should also join in the execution, it is void as to those so executing it. 3. The mere faith on the part of the obligor signing the bond, and the assurance to him by others, that other persons named or not named in the bond are also to execute it, is not enough to release him in case this assurance is not fulfilled; there must at least be a delivery by him upon the express condition that the others shall also execute it. 4. If an obligor signs and delivers a boud to a co-obligor, with the expressed Woolsey v. Cade. oral condition that others, not named in the bond, are also to execute it, and the condition is not fulfilled, the bond is valid, not only as to the obligor so signing and delivering, but also as to other obligors subsequently siguing and delivering without condition. 5. If for any reason a bond is held invalid as to one of the obligors, it is also invalid as to other obligors subsequently executing it. 6. If, in au action by the obligee, one of several obligors is discharged from liability by reason of the invalidity of the instrument as to him, he is not liable in contribution to other obligors who have been held liable. We think there can be no doubt of any of these conclusions except the fourth, and that, although opposed to the principal case, in our judgment is supported by the great weight of authority. In coming to this conclusion we have been much influenced by the evident present disapprobation of the dootrine of People v. Bostwick, in this State. Whan a statute has received a known and authoritative judicial construction, and is substantially re-enacted, the legislature is presumed to adopt such construction. The United States Supreme Court having held that the language of the bankrupt act of 1841, excepting from discharge debts "created in consequence of any defalcation as a public officer," " or while acting in any other fiduciary capacity," related to cases of express trust, and did not embrace cases of mere agency, the same construction must be given to the equivalent expressions in the bankrupt act of 1867. A debt due from a factor, for the proceeds of goods sold, is barred by his dis. charge in bankruptcy.* A CTION on an account stated, between one Jemison, and the firm of Woolsey, Walker & Co., of which the defendant Woolsey was a member, which account had been transferred to the plaintiff, Cade. Woolsey pleaded in bar his discharge in bankruptcy, and the plaintiff replied that the debt was created in a fiduciary character. It appeared on the trial that the defendant's firm had been cotton factors and commission merchants, who had made advances. and furnished supplies to Jemison, who was a planter, under an agreement that he was to consign his crop to them for sale, and *See Lemcke v. Booth (47 Mo. 385), 4 Am. Rep. 326; Banning v. Bleakley (27 La. Ann. 257), 21 id. 554; Cronan v. Cotting (104 Mass. 246), 6 id. 232. |