State v. Martin , 56 Miss. 108 ( 1878 )

Campbell, J.,

delivered the opinion of the court.

The single question to be decided is, whether the bond sued on is the bond of Martin and the other defendants. At common law, signing by the obligor was not necessary. Sealing and delivery were all that was required. Sealing was the all-important thing. Delivery, without sealing, was not sufficient. At first, sealing consisted in impressing wax or wafer with the seal of the obligor, which contained some distinctive device peculiar to Mm, and wliich individualized- Ms act of sealing. Afterwards, it was permitted to many persons to use the same wax or wafer, if each made his own distinct impression upon it. Finally, it became settled that the seal might be affixed by the person preparing the writing, or by any one, and its adoption by the person executing the instrument made it his seal; but adoption was necessary, and intention to adopt was essential to adoption, though this might be inferred from ■circumstances, and did not require an express declaration.

We have no statute defining a bond, or changing the common law as to the essentials of a bond, except that which makes “ a scroll, or any printed impression intended as a seal,” the equivalent of a seal. 'Except in this respect, the common law as to bonds is in force here-, from which it results that a bond may be executed by sealing and delivery by the obligor. He need not sign, but he must seal and deliver it. “A scroll, or any printed impression intended as a seal,” will do for a seal; but if not made by the person, but by some one else, it must be adopted by the obligor as his seal. Adoption of the seal made by another is usually shown by the subscription of the . name of the obligor to the instrument, and delivery by him of the bond as his deed. It may be shown by other evidence of the purpose of the obligor to adopt as his the seal or substitute made by another, but it must satisfactorily appear that he made it his seal; and where the customary act of evincing a purpose to adopt such seal, by subscribing the name, is not done, the evidence of an adoption of the seal in some other mode should be unequivocal, and leave no doubt of the purpose of the person to adopt the seal as a means of executing the instrument.

We know precisely what occurred in reference to the paper sued on, in its alleged execution by Martin, and we are to decide whether it amounted to an adoption by him of the seal made by another for him, and opposite to which it was intended that he should write his name. He did not write the paper, nor read it, nor sign it, nor know what it was. He did not make the seal, nor see it, nor know what it was intended for. He took the oath of office, written on the same paper, and subscribed that; but that had no reference to the bond, as a bond. There was no declaration by Martin that he adopted the seal which had been prepared for him. There is no evidence of an intention by him to adopt the scroll at the end of the horizontal line left for his signature to the writing, as a substitute for his signing.

It is manifest that the bond was not completed according .to its form and the contemplation of the signers. It contains the usual formula, “ Signed, sealed, and delivered,” etc. It was subscribed by the sureties below the line left for the name of Martin, who was to be principal. It is the universal custom, at this day, to subscribe bonds. It is a just assumption that this paper was to be subscribed by Martin, and those who subscribed it as his sureties did so on the condition implied, though not expressed, that he should subscribe it, and that they would not subscribe it except with the understanding that he should do so, and thus make the instrument per se to •show that it was his bond.

In New Orleans Railroad Company v. Burke, 53 Miss. 200, the bond had two seals and three subscribers, and the question was whether the third subscriber had adopted the seal of one of the others, there being no seal against his name. It was held that it was not necessary for each obligor to have his own separate seal, but that one might adopt the seal of another, and that circumstances showed such adoption by the subscriber who had no seal against his name. In that case, there was the name subscribed without a separate seal. Here, there is a seal and a blank for the name, but the name is wanting.

In Bean v. Parker et al., 17 Mass. 591, it was held that bail are not liable unless the bail-bond be executed by the principal; and in Sacramentos. Dunlap et al., 14 Cal. 421, and The People v. Hartley, 21 Cal. 585, it was held that no recovery could be had on a bond purporting to be the joint bond of the principal and sureties, but signed bj the latter only. In this case, the bond is sued on as the obligation of all the defendants; and, unless it is the bond of all, it was not sufficient as evidence to maintain the declaration, and the variance is fatal. No other question is presented, and the judgment of the Circuit Court is affirmed.