Bracken County Commissioners of Sinking Fund v. E. Daum, &C.
| Decision Date | 28 September 1882 |
| Citation | 80 Ky. 388 |
| Parties | Bracken County Commissioners of Sinking Fund v. E. Daum, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BRACKEN CIRCUIT COURT.
B. G. WILLIS, A. DUVALL AND WM. LINDSAY FOR APPELLANTS.
JOHN B. CLARKE, JOHN & J. W. RODMAN, AND W. P. D. BUSH FOR APPELLEES.
CHIEF JUSTICE HARGIS DELIVERED THE OPINION OF THE COURT.
This was an action on the bond of a sheriff against his sureties for the purpose of holding them liable for his default.
They interposed a special plea of non est factum, based upon the following facts: Ten persons, including the appellees, signed a power of attorney, authorizing the clerk of the county court to sign their names to the sheriff's levy bond.
Before the power of attorney was delivered to the clerk, the sheriff to whom it had been delivered erased from it one or two of the names of the sureties, but it is not clear when the third name was erased from the power.
The appellees alleged that these erasures were made without their knowledge or consent, and that they would not have signed the power of attorney if they had known that the three persons whose names are given were not to be bound on the bond; that the county judge, whose duty it was to take the bond and approve the sureties, erased or permitted the name of Thomas Hackett, one of the ten who had signed the power, to be erased from it on the day he accepted and approved the bond. They deny any knowledge of this action on the part of the county judge, or that they ever consented to or ratified his action.
Issue was joined upon the plea of non est factum and ratification.
On the trial, the court instructed the jury, in substance, that if the names were erased from the power without the knowledge or assent of the sureties, and with the knowledge or by the direction of the county judge, they should find for the sureties, unless the sureties subsequently treated the bond as an existing obligation, and thus ratified it.
The jury found a verdict for the sureties, and the commissioners of the sinking fund of the county have appealed.
We have purposely omitted all other questions than the one presented by the instructions on the issues named, as the settlement of that question disposes of the case.
Did the court properly instruct the jury? We think it did.
It was the duty of the county judge to take and approve the bond, and common prudence required of him, when the power of attorney was presented with three names erased in such a manner as any...
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