, 1872-07-11
3au department.
District Court Wafla WalIa Co.
May Term, 1872.
OPINION OF TIE CoVRJ


OPINION OF TIE CovRs.
In the case Of Walla Walla County rs.
Alpheus Kyger. Elisha Ping. J. T. Wise
man. A. A. Blanchard, and Lewis H.
Goodwin. being the civil snit instituted
for the recovery Of over $19. coo. stolen
from the county, Judge J. R. Lewis, Of
the District Court. ON Saturday. June
LIST. rendered the following decision
!. The statutes Of this Territory have
not defined the meaning Of the word
bond, nor determined the mode of
Its execution; hence as to what on
stitutes bond, and the manner in
which it must be executed. must be
sscertained by the rules of common
law.
2. A bond is deed whereby the obligor
obliges himself, his heirs. executors
and administrators to pay a certain
sum Of money to another ut day ap-
pointed; generally with condition
added that if the obligor do some act
the obligation will be void, and it
must be sealed and delivered.
3. There can be no good bond unless i,
sum certain be stated therein as pen
atty. And whereas in this case th.
instrument. when signed and sealed
contained no sum as a penalty, it Was
no bond. for the reason that there
Sas nothing cf substance contained
in il.
4. A bond executed in blank may be af-
terwards filed up by parnI authority
but ifs blank is filled up without au-
thority. and without the knowledge
or consent of the parties executing it.
the bond rs to them is void.
S. Filling blank space for a penalty
with the words, "forty thousand dol
lars, is material alteration and rem
dered the instrument void as against
the surettes not consentipg thereto,
and not afterwards ratlfying the set.
The defendant X ger, with the other
defendants. executed to plaintiff a bond
conditioned for the due performance on
the part Of Kyger of his duties as Treas
urer of said county. At the time of the.
signing of the said bond by the surelies
there were blank spaces Ill the bond as
to the amount Of the penalty, and the
date.
The amount of the penalty had not
then been fixed by the Board of Com
missioners. The sureties, however, at
the time they signed the bond read the
same over aad had full knowledge of the
object and purpose of the bund. Knew
there was 10 penal snm therein, and
signed the same with the intent aud pur-
pose of becoming bound therein. as
sureties for the said Kiger. as in the hnnd
set out. Ping, Blanchard and Wise
nan signed the same in June. 1870, not
in the presence of each other, and s+v-
erally returned the same to Kyger, who
ill January, 1871, presented it TO thu.
defendant. Goodwin. VIII with full
knowledge as to the object and purpose
of the bond. after reading th.. same. and
with full knowledge as t. said blanks.
signed the same with the intent to be-
come surety therein. and returned til.
same to Kyger. who, ut the May term
1871, requested said Board of CommiS-
sloners to fix the pena ty thereof, which
they did III the sun If $45,000. / h.
sum was then inserted III said ii'.t,5 II.
the presence uf tie Board hu' Wifh,.u;
knowledge on thei part as to ah,ther
;ne same was tle, sighea ky.r,.r foak
the bond away and a, il - .cifd tenn 1T
the Board, on the 18Th Of Iune 1874.
presented the bond 10 the Board for
their approval .-
At the time 1t was so prese nfe5. :hp
blanks were all filed and 'h,. bona w.-
complete, except the stamp, which Ky
ger then antho ized The C'erk of the
Board to procure and aifix and caaeel
and the bond WIS thereupou received.
accepted and filed as .ae ofaciai bond Of
the said Kyger.
The blanks were 6lIed withapi tt,-
knowledge or oouseut Of the sugeues
who neither # them saw the bona after
it was signed, until produeed in Court,
and had no kuowl, dge bat the sauie had
been delivered ana accepted by sa.,t
Board, o,her than he records IT the
proceedings Of the Board.
The said sureties. and neither of theln,
at any time gave to any person any spe-
ciai authority to Ill said blanks. nor ary
authority whatever. except such us may
be implied by their so signing the bond.
1t is admitted by counsel. that kyger
is liable on the bond. and of this there
is no doubt. The sureties claim that
they are not liable thereon. for the rea-
SON that the said bond has been altered
In material part since they signed it,
without their knowledge or consent. in
this. thut the blanks as to the penal sum
and the date have been so filled.
The statutes of 1863, page 553, section
2, provide for the execution of bond
by the County Treasurer elect. to wit !:
I" He shall give bond to the county, with
suretles in the penal sum. the amount
of which is to be fixed and the bond ap-
proved by the BOARD Of Commissioners"
and the bond is to be conditioned for
the faithful performance of his duties.