#### Ney, respondent, *v.*Orr, appellant.

Liability of sureties upon a bond not signed by the *principal*— estop-*pel.*N. obtained a judgment in tbe probate court against K. K. appealed and gave a bond, in tbe body of which bis name appeared as tbe principal and tbe appellants as tbe sureties, with tbe usual condition of a statutory undertaking on appeal. N. recovered judgment against K. in tbe district court and then commenced this action against tbe sureties on tbe bond. At tbe trial tbe sureties offered evidence showing that tbe bond was delivered to tbe probate judge with directions not to file tbe same until K. signed it; that tbe judge promised so to do but filed tbe bond without K.’s signature ; and that the sureties did not know it was filed until tbe appeal bad been determined. Tbe evidence was excluded by tbe court. *Held,*that tbe bond is not a statutory undertaking on appeal, and that tbe sureties are not liable thereon. *Held,*also, that N. had notice of tbe insufficiency of tbe bond on its face when it was filed, and that tbe evidence should have been admitted. *Held,*also, that tbe sureties are not estopped from denying tbe validity of tbe bond.

*Appeal from. Third District, Meagher Oounty.*

The case was tried by Wade, J., with a jury.

*560S. Obb, for appellant. •

The court erred in excluding tbe evidence offered by appellant. No bond, showing on its face,' or that is proved to have been signed by some parties on condition that others were to sign it before it should be used or delivered, is legal or binding on those signing conditionally. If the bond is in such a condition that a party cannot know from its appearance that it is incomplete, a principal may take advantage of an innocent party. *Nash*v. Fugate, 18 Am. Rep. 640. (24 Gratt. 202); *Wood*v. *Washburn,*2 Pick. 24 ; *Swan*v. *Stedman,*4 Mete. 548; *Sweetser*v. *Nan/,*2 Gray, 49 ; *Dillon*v. *Brown,*11 id. 179; *Sacramento*v. *Dunlap,*14 Cal. 421; *Beam,*v. *Pamker,*17 Mass. 591.

ChtjMasebo & ChadwicK, for respondent.

No motion for a new trial has been heard, and there is nothing before this court except certain exceptions to the ruling excluding evidence by appellant. The cases cited by appellant are not in point. They do not relate to appeal bonds.

An undertaking on appeal is a voluntary undertaking, not executed under legal compulsion. It differs from official bonds. It is a means of procuring a private benefit in the extension of time of payment. *Forest*v. *Ha/oens,*3s N. Y. 469.

An undertaking on appeal is an independent contract on the part of the sureties in which the principal need not imite. Civ. Pr. Act, §§ 381, 412 ; *Bellinger*v. *Gardiner,*12 How. Pr. 381; *Dore*v. *Covey,*13 Cal. 409; *Tidball*v. *Halley,*48 id. 713; *Dai/r*v. *United States,*16 Wall. 1.

The delivery of the bond to the probate judge did not affect the liability of the sureties. There was already a judgment against the principal. [Respondent was not liable for the act of this officer, who was the agent of appellant. Appellant has had the benefit of the bond, and respondent has been delayed in the collection of his debt against Kay.

One co-obligor may deliver a bond to another co-obligor as an escrow, but the delivery of an instrument to an obligee or payee, or the agent of either, is absolute in law. *Deardorff*v. *Fores-man,*24 Ind. 481; *Wébb*v. *Bawd,*27 id. 368.

*561"Wade, 0. J.

This action originated in that of respondent against Kay in the probate court of Meagher county. The respondent obtained a judgment and Kay appealed to the district court, where the respondent again recovered a judgment. To procure and perfect this appeal Kay caused to be executed a certain bond signed by the appellants as sureties, on which the respondent instituted this action and recovered a judgment against the sureties, who bring this appeal therefrom. The bond is in the following form:

> “ Know all men by these presents that we, Henry Kay, as principal, and Sample Orr and David P. Nankin, as sureties, are held and firmly bound unto William H. Ney in the sum of $616.20, lawful money of the United States of America, to be paid to the said William H. Ney, his executors, administrators or assigns, for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly, by these presents. Sealed with our seals and dated this 4th day of December, A. D. 1871.”

Then follows the usual condition in an undertaking for an appeal. The bond was signed by said On' and Nankin, but was not signed by said Kay. The form of this instrument made it a bond for all purposes, as distinguished from a statutory undertaking, and it was drawn to be signed by Kay, as the principal, and his name appears in the body of the bond. The instrument was not signed by said Kay, and showed upon its face that it was imperfect.

On the trial testimony was introduced by the appellants tending to show that the bond was signed by the sureties and delivered to the probate judge with express directions that the same be not filed until it was signed by said Kay; that the judge promised to heed these directions, but filed the bond without the signature of Kay; and that the sureties did not learn this fact until the appeal had been determined. On the. motion of the respondent this testimony was withdrawn from the jury as immaterial, and the appellants duly excepted by their bill of exceptions.

Was this testimony properly excluded? This question can be answered by determining whether the bond is of any validity without the signature of the principal obligor. This .bond was *562given to appeal a case to a bigber conrt in tbe place of tbe statutory undertaking, wbicb would bave answered every purpose, but it must be construed like any other bond. Tbe rights of tbe sureties are tbe same as if this was a common law or official bond wbicb bad not been signed by tbe principal.

These sureties contracted a conditional obligation only by tbe instrument they signed. They bound themselves jointly and severally with Kay, their principal, and in no other manner, and entered into no independent undertaking for themselves. They made a joint and several promise with Kay, but no promise with-' out him. They undertook to pay any judgment tbe district court might render against Kay, be being liable with them upon tbe bond, if be did not pay it. This appears upon the face of tbe bond. Without Kay’s signature, as the principal obligor, an inspection of tbe instrument shows it to be incomplete. When this bond was filed and tbe cause appealed thereby, Ney was charged with notice of this defect. Tbe fact that Kay was liable' upon tbe judgment, after its rendition in tbe district court, does not change tbe rights of tbe sureties. This judgment did not render Kay liable upon tbe bond with tbe sureties. If a judgment should be entered against appellants for tbe amount of tbe judgment in tbe district court, and they should be compelled to pay it, their remedy would be an action against Kay to recover tbe amount so paid. But they took upon themselves no obligation to do any thing of the kind. They promised to pay whatever should be recovered upon tbe bond against Kay, if be did not pay it, and under such circumstances, tbe judgment against their principal would belong to them. Tbe sureties enter into tbe obligation with express reference to their rights and their principal’s responsibility.

Tbe authorities seem to uphold these views. In *Sacramento*v. *Dunlap,*14 Cal. 421, tbe defendant was required to give a bonfor tbe faithful performance of official duty. Tbe instrument, on wbicb tbe suit was brought, was filed and approved as such bond. Tbe court says: “ It (tbe bond) purports to be tbe joint bond Dunlap, as principal, and of Gass and Tucker as. sureties, but is only signed by tbe sureties. It bears neither tbe signature nor tbe seal of Dunlap, and tbe question for determination is whether tbe *563intended principal, or tbe sureties, are bound by it. We are clearly of opinion that they are not. As Dunlap has never put his signature to it, the instrument is not his deed. * * * The liability of the sureties is conditional to that of the principal. They are bound if he is bound, and not otherwise. The very nature of the contract implies this. The fact that their signatures were placed to the instrument can make no difference in its effect. It purports on its face to be the bond of the three. Some one must have written his signature first, but it is to be presumed, upon the understanding, that the others named as obligors would add theirs. Not having done so, it was incomplete and without binding obligation upon either.”

The supreme court of Massachusetts in *Bean*v. *Parker,*17 Mass. 604, says : “We think it essential to a bail bond that the party arrested should be a principal; it is recited that he is; and the instrument is incomplete and void without his signature. The remedy of the sureties against the principal would wholly fail or be much embarrassed, if such an instrument as this should be held binding.” See also *Wood*v. *Washburn,*2 Pick. 24; *Sharp*v. *United States,*4 Watts, 21; *Fletcher*v. *Austin,*11 Vt. 447; *Johnson*v. *Erskine,*9 Tex. 1. In *Russell*v. *Annable,*109 Mass. 72, the court says: “ It was essential to the bond that the principals should be parties to it; it is recited that they are so, and the instrument is incomplete and void without then signatures. * * * The sureties on a bond are not holden, if the instrument is not executed by the person whose name is stated as the principal therein.”

It may be considered as settled that a bond perfect on its face and 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 on condition that it should not be,delivered unless it was executed by other persons who did not execute it — where it appears that the obligee had no notice of such condition, and there was nothing to put him on inquiry about the manner of its execution, and that he had been induced upon the faith of such bond to act to his own prejudice. *Dair*v. *United States, 16*Wall. 1; *Nash*v. *Fugate,*18 Am. Rep. 640 (24 Gratt. *564202); *Tidball*v. Halley, 48 Cal. 610; *Deardorff*v. *Foresman,*24 Ind. *481; Webb*v. Baird, 27 id. 368.

These authorities are not applicable to this case. Here the bond was imperfect on its face, a bond of two sureties without a principal, and the obligee must have had notice thereof. Sufficient appeared upon the face of the bond to put him on inquiry about its execution.

From the opinion delivered in the district court, which is in the transcript, this case seems to have been there tried, as if this bond, having performed the office of appealing the case, must therefore be taken and held a statutory undertaking for that purpose. If this view could be upheld, the decision of the court below would be correct, for the contract of the sureties to a statutory undertaking is an original independent contract, to which the signature of the principal is not essential. *Cutis*v. *Richards,*9 Cal. 33. The instrument sued on is a common-law bond and the rights of the parties must be determined accordingly.

The respondent contends that Kay has had the benefit of this bond and secured an appeal thereby, and that therefore the sureties are estopped from denying its validity. If this principle applies to Kay, we fail to see its application to the sureties. The appeal was taken under a bond, which is void on its face, and the respondent might have caused the appeal to be dismissed, but he preferred' a new trial in the district court. Therefore, the bond operated as much in his favor as in that of Kay. The appellants stand upon the letter of their bond. Having signed an obligation, void upon its face, and this being the extent of them action in the premises, we cannot see how they are estopped from denying the validity of their bond.

The judgment is reversed.

*Few 1/rial granted.*