Case 36 — Action by Commonwealth against W. B. Roabk an» Othees as Sureties on a Bail Bond.

Oct. 9.

#### Commonwealth v. Roark, &c.

APPEAL FROM ALLEN CIRCUIT COURT.

Judgment for Defendants and Commonwealth Appeals.

Reversed.

Bail Bond — Discharge of Surety — .Release of Co-Surety — Waiver of Defects.

Held: 1. Where a surety acting under a power of attorney from his co-sureties executes a bait bond knowing that a co-surety had not properly executed the power, and that the official taking the ,, bond had'noi knowledge of the defective power, the- other sureties can not claim release from liability because such co-surety was not hound; since the bond having been, executed by their representative with knowledge of the' defective power, they waived: any informality in the ■ execution by the co-surety.

N. A. BORTER, for appellant.

In presenting a .power of attorney signed by three and falsely-purporting to have been signed by the fourth, "M. G. Brown,” W. B. Roark practiced, a fraud upon the court and he can not escape liability by his own fraud.

*397W. B. Roark’s knowledge of the fraud at the time of the execution of the bond is imputed to those who ha,ve authorized, him to act as their agent and none of them can escape.

To such as gave the unconditional power of attorney prior to the signature <-M. G. Brown,” the unauthorized name subsequently added was a mere nullity, neither conferring authority nor taking any already existing away.

Those subsequently ' signing to “M. G. Brown,” guaranteed the genuineness of M. G. Brown’s signature. Wheeler v. Traders’ Deposit Bank, 21 Ky.' Law Rep., 1416.

W. B. Roark claiming to act under a power of attorney, guarantees the genuineness of the signature thereto.

.This case distinguished from Goimmonwealth v. Belt, 21 Ky. Law Rep., 339.

¡This case is on all fours with Wheeler' v. Traders’ Bank, 21 Ky. Law Rep., 1416.

It does not lie in any principal’s mouth to claim a release by the fraud of his duly constituted ageht, and all- who (authorized W. B. Roark to act as their agent in the execution >of 'the bond guaranteed the gbod faith of their ascent and the (genuineness of every signature.

*SfT.*B. GAINES, FOR APPELLANT.

There are three reasons why the court should hold these sureties that did sign the, bond:

1. There being no condition) in the power of attorney that Brown should sign the bond, certainly as to'such of those sureties as signed before the name “M. G. Bnown” was signed, as 'to them the name of M. G. Brown, having been signed by W. B. Roark without authority was merely superfluous and of *-na>*binding authority on him, nor could its purporting to have been signed by M. G. Brown thereafter have had the effect to withdraw from W. B. Roark the unconditional authority given him previously. To such as signed after1 the name "M\ G. Brown,” the signing of the bond by them was a guaranty tnat those names appearing before theirs were genuine signatures, so that under any conditions no party to the power of attorney could plead any infirmity because of the name “M. G. Brown.”

2. This court has steadily refused to recognize any difference between the sureties to a bail bond and1 to any other obligation and the distinction between the case at bar1 and the Belt case, supra, was clearly drawn in Wheeler v. Traders’ Deposit Bank, 21 Ky. Law Rep., 1416, and there the case was (presented where the name above the appellant’s was a forgery. This court saiu: “Wheeler signed the note- as surety, and in doing so guaranteed *398to the hank that every preceding signature was genuine.” In this case the nalme of “M. G. Brown” was a forgery in tha ¡sense that it was a false. representation of fact, ,and| in fact was a fraud, though, perhaps, not so. intended Iby the hoy who signed it It was a forgery, but not punishable. The two cases cited recognize that principle of commercial 1/aw that while there is a warranty of soundness, if the) horse has only three legs and the buyer sees it, the warranty that he had 'four is unavailing. ¡So far as W. B. Roark is ooncerned there can be .no doubt if this case is followed he must be held.

3. While the law is being conceded against our contention, it must also be admitted in our favor, and it is as olid' as the eternal hills that the knowledge of tha agent is tha knowledge of the principal. It must be conceded that W. B. Roark was the agent of the sureties in the execution of this bond. It must be conceded that he knew that M. G. Brown did not sign the power of attorney. It inevitably follows, therefore, that at the time and before the execution ,of the bond tirase sureties knew that “M. G. Brown” did not sign the power of attorney. It must be conceded that the county judgei did not (know that M. G. Brown had not signed ini person. It .must be conceded that the defect in the instrument did' not appear upon its faca and was a latent defect and such, as the warranty of genuineness therefore covered. As .a matter of fact when W. OB. Roark presented that power of attorney1 to the county judge with “M. G. Brown” 'signed in writing thereto it was in law, in 'fact and In good morals a representation that the words “M. G. Brown” was the true and genuine signature of M. G. Brown.

AUTHORITIES CITE'D.

Terry *&*Bell v. Hazlewood, 1 Duvall, 104; Jones v. Shelfoyville, &c., Co., 1 Met., 58; Hall v. Smith, 14 Bush, 604; Com. v. Magoffin, 15 R., 775; Wilson v. Louisville, 16 R., 340; Com. v. Yarbro, 84 Ky., 496.

■W. C. GOAD, ATTORNEY FOR APPEULEE.

This is an appeal by the Commonwealth against W. B. Roark, *&c.,*from a judgment of the Allen Circuit Court, sustaining a response of sureties in the bail bond of one John Roark, on which a forfeiture was taken, and which bond iwas taken by the examining court by what purported to 'be a power of attorney.

The power of attorney contained the mame oil one Brown, whose name was signad and accepted! by the examining court as surety on said bond, and the response by him alleged that he was engaged at work at his mill when approached bo become *399surety on .salcl bond, and agreeing' to sign, same, with Roark’s father et ais.,. told his son, whoi was standing by, to sign his name to the power of attorney, which the son did in pursiuance to said verbal authority, and a forfeiture having been taken on said bond, so signed, Brown responded, claiming as -defense that he was not bound on the bond, as he di|:l not give the son nor any one written authority to sign his name to the power, of attorney or-the bond. The court having heard the proof, which amply sustained this contention, rendered judgment exonerating the sureties, and from that judgment this 'appeal is prosecuted.

It has been so nften held by this court that a surety is not bound upon his undertaking unless he either signs the instrument or the authority to an attorney- in fact, that I do not deem it necessary to cite any special case. This sligning, or this authority, as I understand the law, can. not be delegated to .another, except in writing, and as the record shows concl/usively that tha authority in this case was. never given to any one by Brown, surety, in writing, I respectfully ask that the judgment in this case of the court below, be affirmed.

Opinion of the cottet by

JUDGE O’REAR

Revebsins.

Jolm Roark, being in custody before the county judge of Allen county charged with a felony, was admitted to bail by that magistrate for his appearance before the Allen circuit court to answer any indictment that might be found against him growing out of tbe charge. Appellee, W. B. Roark and others undertook as his' hail, in a bond executed before the county judge, that he would so appear; but he defaulted. In a suit upon the forfeited bail bond, one of tbe sureties, M. G. Brown was discharged, because it was conclusively shown that lie did not in person sign the bond, or by a writing signed by him authorize another to sign his name to it. Section 482, Kentucky Statutes, 1899; Billington v. Com., 79 Ky., 400, 3 R. 19. The other answering; sureties, appellees W. B. Roark and J. M. Braswell, claim that they were released because Brown was not bound. The circuit court discharged them. The facts are, so far as necessary to understand the point to be decided, that *400W. B. Roark was by a written power of attorney, apparently signed by all the other sureties, and in fact so signed1 except by Brown, authorized as such attorney in fact to sign the names of the sureties to the bail bond. W. B. Roark was present when M. G. Brown agreed to sign the bond as a surety. But instead of signing his name to the paper (the power of attorney), he requested his son, who was present, to sign it for him, which was done. This was' known to W. B. Roark. None of the sureties except W. B. Roark appear to have been present when the bond was; executed before the county judge. It was not shown that the county judge knew that M. G. Brown had not in person signed his name to the power of attorney. Now, can it be that W. B. Roark and the other sureties, whom he was representing as their agent in that matter, are released from liability because Brown was not bound? There is a line of cases decided by this court, notably Com. v. Magoffin, 15 R., 775, 25 S. W., 599; Wilson, Rec’r, v. Linville, 96 Ky., 50, 14 R., 150, 16 R., 340, 27 S. W. 857; Com. v. Yarbrough, 84 Ky., 496, 8 R., 483, 2 S. W., 68; and Com. v. Belt, 21 R., 339, 51 S. W., 431 — which go to the extent that where the county judge or other official representing the Commonwlealth, knowingly permits an incomplete bond to .be accepted, as where some of the sureties’ names were signed by others without written authority from such obligors, none of the sureties will be bound. And this, too, notwithstanding that all the sureties were present, and saw the bond executed as it was, and notwithstanding that in law it is competent for a surety to waive the execution of the bond by .one who had been named therein as his co-surety. In all of those cases the officer representing the Commonwealth knew that some of the sureties named in the bond had not signed it, or knew that some whose names were signed by *401others had not written authority to do so; at least knew that no such authority was exhibited or filed. Nothing appears in those cases to show that the sureties signing in,tended to waive the due execution of the bond by the others named in it, or that they were aware that the official had. not fully complied with the law in requiring the due execution of the bond. From those facts the court, argued that the other sureties had a right to presume that the official taking the bond had proper assurance that those signing it for others had legal authority to do so, so as to bind them. None of these cases hold, of course, that any one can presume anything to the contrary of his own actual knowledge. But this case goes beyond anything in any of those cited. The sureties here, excepting Brown, had by a valid paper appointed another to act in their stead and for them in this transaction. Under "familiar and salutary principles of the law of agency, when one elects to act by an agent, the knowledge of the latter, acquired or in mind, in that transaction, is conclusively imputed, to such principal. Otherwise, it would be safer to the principal to always act by agent, for the agent’s guilty knowledge — perhaps the scienter of an action based on the contract made by him— would not affect the principal, though he might profit by the agent’s act. Trimble v. Ward, 97 Ky., 748, 17 R., 508, 31 S. W., 864. This matter is well stated by Lord Brougham in Kennedy v. Green, 3 Myl. & K., 699, who says that the reason of this rule is that the “policy and safety of the1 public forbid a person to deny knowledge while he is sc> dealing as to keep himself ignorant, . . . and yet all the while let his agent know, and himself perhaps profit by that knowledge.” W. B. Roark knew exactly how the power of attorney was executed by Brown; the county judge did not know. ¡W. B. Roark appears to have con*402ceal'ed from the county judge the truth as to how the paper was executed, or, what amounts to the same thing, had presented it as genuine when he knew it was not. His act, being for himself and his co-surpties, was equivalent to a representation by each of them that the paper was the genuine signature of Brown, or, at least, they were willing to waive his executing the bond otherwise. They could have waived Brown’s signature altogether. They can estop themselves, too, from denying that his signature to the power of attorney was genuine. When one surety says to the official taking the bond, “I know all the facts relating to the signing of the power of attorney by my proposed co-surety. • I assure you that he has signed the power of attorney, and request you to accept the bond under that signature of his and of my own, made with full knowledge of. the circumstances, and thereupon to release the prisoner,” such surety has waived any informality in the execution of the bond by his co-surety. It is also, if acted upon, a good estoppel against his afterward denying the validity of his co-surety’s signature. The action of W. B. Roark was tantamount to such assurance.

The judgment is reversed, and cause remanded for a new trial, under proceedings consistent herewith.

Chief Justice Burnam dissents. Judge Paynter not sitting: