Brown v. Colquitt

• Decision Date: 04 March 1884
• Parties: BROWN v. COLQUITT, governor.
• Court: Georgia Supreme Court

73 Ga. 59

BROWN v. COLQUITT, governor.

Supreme Court of Georgia.

March 4, 1884

February Term, 1884.

1. Where to a scire facias to forfeit a criminal recognizance a plea was filed by the surety, to the effect that he signed the bond when there was no obligee or penalty stated therein, and that the name of the obligee and amount of the bond had since been inserted, in his absence, such plea was not a general plea of non est factum, but a special plea; and the onus of sustaining it was on the defendant.

2. Where several criminal recognizances were to be given, and the same surety agreed to sign all of them, and did so, some of them being filled out at the time, and some of them having the name of the obligee and the amount blank, and the surety instructed the sheriff to fill such blanks, knowing the amount and the obligee, and thereupon left, and the blanks were filled accordingly, the bond was not invalid, but was binding on the surety.

( a. ) The ruling in 14 Ga. 173, will not be extended beyond case there determined.

Principal and Surety. Bonds. Contracts. Principal and Agent. Before Judge HUTCHINS. Walton Superior Court. August Term, 1883.

Reported in the decision.

JAMES F. ROGERS; RAY & WALKER, by J. H. LUMPKIN, for plaintiff in error, cited, Code, §§2851, 3831, 3454; 14 Ga. 173; 1 Whart Ev., §633; 1 Dan. Neg. Inst., 154; 30 Ga. 278; 55 Id., 45, 47; 23 Grat., 600; 41 Cal. 85; 6 Allen 305; 10 Am. R., 268; 13 Am. Dec., 629.

A. L MITCHELL, solicitor general, by HARRISON & PEEPLES, for defendant, 14 Ga., 173, and citations; 1 Mees. & W., 464.

BLANDFORD Justice.

This was a scire facias to forfeit a criminal bond upon which plaintiff in error was surety. He answered that he signed this bond when there was no obligee or penalty set forth; that the name of the obligee and the amount of the penalty were inserted therein in his absence. The facts shown were that the sheriff had arrested one Ball, upon six warrants, issued upon six bills of indictment; that plaintiff in error agreed to become his bail; that the sheriff had filled out several bonds, which he had signed; that plaintiff in error signed the sixth bond and instructed the sheriff to insert the name of the obligee and the penalty of fifty dollars, both of which he well knew, and left before the last bond had been filled out.

The court instructed the jury that, under this plea or answer respondent must make out his case; and further, that, the facts being true, the respondent was liable. These rulings are excepted to by respondent, and error is assigned here thereon.

1. The first error assigned is that the court erred in ruling that, under this answer of respondent, the onus was not changed, but that it was incumbent on defendant to sustain his answer. This was a special defence. The signing of the bond is admitted; but respondent insists that he is not bound thereby, for and on account of certain reasons which he sets forth. This is not a general plea of non est factum, but special; in such a case, the respondent is bound to sustain his plea by proofs. So the court did not err as complained of in this ground; and this could make no difference, as the proofs went to the jury and plaintiff in error sustained no harm from this ruling.

2. The next question is graver, and is environed with greater difficulties, which is, where a bond has been signed in blank, with the obligee's name and penalty not inserted, and the obligor directs an officer, who is authorized to take such bond, to insert the name of the obligee and penalty in such bond, in his absence, and this is done, such obligee's name and the amount of the penalty in the bond being known to the obligor when these instructions are given, and the instructions being in parol and not in writing, is such a bond void, or is it binding on the obligor?

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