Stephens and others vs. Crawford, Gov'r. covenants with the State; he voluntarily undertakes with her agents; the State is as competent to contract with him as a citizen; the bond is not against public policy, it is not in contravention of public law, it is not opposed to public morality; it is founded on a sufficient consideration, and it is executed according to the meaning and intent of both parties; and why should it not bind the parties to it? The position now taken, and taken also in the previous case on this bond, is sustained by authority. The case of The United States vs. Tingy, was an action on a bond made payable to The United States, and executed to the Secretary of the Navy, by a purser in the Navy. To this suit, among other things, it was plead, that the bond was not taken in pursuance of the laws of the United States, and was void as a statutory bond; that it was not binding at common law, and was void for extortion. The last plea was sustained, the court determining that the Secretary of the Navy had no authority to require such a bond as a condition precedent to the purser's entering upon the duties of his office. Yet the court also held that, but for extortion, the bond would be good at common law; Mr. Berrien, for the United States, then the Attorney General, contending that a bond is not less voluntary because it has been required by a public officer, but not contrary to law. Mr. Story, in delivering the opinion of the court, asserts the right of the United States, as an incident to its sovereignty, to contract with a citizen-to take a bond in cases not previously prescribed by law; and says, "We hold that a voluntary bond, taken by authority of the proper officers of the Treasury Department to whom the disbursement of the public moneys is entrusted, to secure the fidelity in official duties of a receiver or an agent for disbursing of public moneys, is a binding contract between him and his sureties and the United States; although such bond may not be prescribed or required by any positive law." Running a parallel between the case of the The United States vs. Tingy and the case at this bar, it will be seen that they are very similar; in that case the bond was made to the United States; in this to the Governor; in that the bond was taken by a public officer, to wit, the secretary of the navy; in this by public officers, to wit, the justices of the Inferior court; in that the bond was held void as a statutory bond; so also in this; it was held in that case good at common law, but for its being extorted; so also we hold that it is good at common law in this case, there being no Stephens and others vs. Crawford, Gov'r. evidence of extortion. In that case there was no pretence that the bond was not executed because not delivered to the payees, the United States; it was not there insisted that the aid of the statute was invoked to keep out the requirements of the common law, as to delivery; it was there claimed that the bond was not the less voluntary because required by a public officer, and the claim was allowed by the court. The great principle was there settled, that one may execute a bond to a State or its public agents, as binding upon him, according to the rules of the commou law, as if executed to a private individual; and that is precisely what is now, and what has heretofore been asserted by this Court. So also in the case of Thomas, Judge of Probate vs. White, reported in 12 Mass. 368; an action of debt was brought upon a bond given to the judge of probate; the defendant objected that the bond was not a probate bond, although given to the judge of probate, because it was not such a bond as he was authorized or required to take virtute officii. Parker, Chief Justice, said, “we are all clear, that the objection is fatal to the action; for this bond is not technically a probate bond, it not being necessary, if at all proper, that it should be given to the judge of probate." The action was dismissed upon the ground that the bond not being required by the statute, the court had no jurisdiction. Chief Justice Parker further says, "It is not therefore a probate bond, and so can not be sued originally here; for this court has no original jurisdiction of civil actions between party and party, unless it is given by statute. No objection is made to the validity of the bond; it is undoubtedly good at common law, for the obligor has by his deed consented to make the obligee trustee for the persons interested in the sum secured." Here, again, we have a bond executed to a public officer, in a case (as we hold in this case) where the officer had no authority to take it, pronounced good at common law, and the reason given is, that the obligor had by his deed consented to make the obligee trustee for the persons interested in the sum secured. He contracted with an officer, and consented to be bound according to the exigencies of his contract, to such persons as according to law were interested in the penalty. So we hold that Stephens has consented by his deed to make C. J. McDonald and his successors, trustees for the persons interested in the faithful execution of his duties as sheriff; and upon just such reasoning as this, were the question now an open one, I should be strongly inclined to hold him liable Stephens and others vs. Crawford, Gov'r. to all persons injured by his breach of this bond, to the same extent that he would be liable, if it was good under the statute, The principle in this case is again settled, that a bond is not the less voluntary because executed to a public officer. I again assert, that any delivery which, in such a case, is in accordance with the understanding and intent of the parties, is a good delivery. The radical vice of the reasoning of the counsel for the plaintiff in error, is found in the assumption, that this bond is in the nature of a contract between the obligor and his sureties and Charles J. McDonald in his individual character. The argument assumes this; and if it was so, then indeed a delivery to him, or proof of what would amount to a delivery to him, would be necessary to its validity; as for example, a bond in which A. covenants under a penalty to pay to B. a specific sum of money, or to do, or not to do, a specific thing. Such are not, however, the only bonds known to the common law. Bonds are capable of being enforced at common law, having conditions of continuous liability and embracing variant liabilities; so also such as grow out of, and have relation to, official duties. Hence the necessity of looking "to the circumstances under which and the character in which" the parties contract, in order to determine not only what are the rights and obligations of the parties, but also what, in each case, constitutes a delivery. Here is a bond which recites that the obligor Stephens, was duly elected sheriff of Baldwin county; the conditions are, that he shall "well and truly do and perform all and singular the duties required of him in virtue of said office of sheriff, according to law and the trust reposed in him;" it is delivered to the person authorized to receive it. Now, it is not at all apparent to my mind, that this bond is to be delivered as though it was a bond to C. J. McDonald. I have stated that a bond payable to the Governor is payable to the office. 1 Kelly R. 583; 2 Bailey R. 378; 1 McCord R. 568; 2 Bailey R. 13. If it be said that although this be true, yet it ought to be delivered to the incumbent, as the trustee and agent of the people, the reply is at hand, the laws of the State have directed that this bond shall be delivered to another; the clerk of the Superior court is the appointee of the law to receive it. The voluntary undertaking of Stephens has reference to that fact; and acting outside of any statutory obligation, he consents to be bound in reference to the duties which the statute imposes; he consents to the validity of such a delivery too as the statute is his invoking the statute That a bond is not RAIS TEIei m a pablie officer, see AV DERDE IS extention, in deference Trats ied, but it is not 30 person shall be per- € that then sendered in evidence ay be mired by the breach of ELSER, Jerse ne record of it has not TAL, THE "DARE me be but one recovery upon » KSČM YCMBced. I magic boid a differ MMÌ 18:29 3 the question mare ne affem; bends, when not con‐ eurs dien though they may be *SUBPOSÈ MY according to the rules Bus 3 Der. R. 86: Justices er, 1 Hen. R. 271; me vs Eiringles, HOT & FUNİnd for a rebearing, upon the I SUSIng the demurrer to the teter NovET. Carter and wife rs. Buchannon. No. 68.-JOHN W. CARTER, and Wife, plaintiffs in error, vs. GEORGE F. BUCHANNON, defendant in error. [1.] Res gestæ are the circumstances, acts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character. [2.] Declarations of a party, to be admitted as part of the res gestæ, must be at the time of the transaction they are intended to explain; must be calculated to unfold its nature and quality, and must harmonize with it. [3.] Declarations of the donor, made on the evening of the same day on which the alleged gift was made, but after it was made, going to show that there was a gift, and the manner of it, are not admissible as parts of the res gesta. [4.1 The admissions of a third person, from whom title emanates which affects his interest, made whilst in possession of property, or before he parts with title to it, are admissible in evidence against all who claim under him.. [5,] Evidence of possession of a slave, derived from the donor, in the father of a young child to whom it is alleged it was given, is not of itself proof of a gift, but is admissible as proving possession. [6.] Evidence that there was a gift from A to B, without stating the manner and form of the gift, not admissible to prove a gift. [7.] Statements made by a third person in the presence of a party, and not contradicted, are admitted with great circumspection and caution, but only when the party adducing the evidence first proves, that the person to whom the statements were made, assented to them either expressly or by his silence. 66 [8.] When A is in possession of property, and being about to make his will, and is in consultation with B about it, inquires of B," what shall I do with Jenny?" (the property in possession,) and B answers, you can do nothing with Jenny, because I have given her to your daughter Esther;" held that both the question and the answer should be admitted, that the jury may judge of the intention of A in propounding the question. Trover for a slave. Tried before Judge SAYRE. In Wilkes Superior Court. September Term, 1847. Upon the trial below, the plaintiffs attempted to prove a gift of Jenny, the mother of Jerry the slave in dispute, to Mrs. Carter, when she was quite a child, by her grandfather Jacob Bull. In the progress of the trial, the plaintiffs proved possession of Jerry in the defendant for several years, and that he purchased him from the administrators of Jones Kendrick, who was the father of Mrs. Carter, and the son-in-law of Jacob Bull. It was further proven that Jerry was the son of Jenny, and was born in the possession of said Kendrick, and continued in his possession until his death, he exercising acts of ownership over him all the time. Jerry's value, and the value of his hire, and some other facts not going to prove title, and therefore immaterial, were proven. . |