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If this decision is a denial of the application made in this country of the rule referred to, the English Court of Appeal in Chancery has evinced so much delicate consideration for the American courts that its line of departure from their rulings cannot be traced.
But since the decision of this court in the Deardorff case, the question there considered has been before the Supreme Court of the state of Maine, and has received a like solution: State v. Peck, 53 Maine 284. This decision, published in the year following the case in this court, reviewing as it does the same line of authority, supporting itself by the same decisions and arguments which approved themselves to us, renders it unnecessary that we should do more than quote the result reached. “A bond, perfect upon its face, apparently duly executed by all whose names appear therein, purporting to be signed, sealed, and delivered by the several obligors, and actually delivered by the principal, without stipulation, reservation, or condition, cannot be avoided by the sureties upon the ground that they signed it on the condition that it should not be delivered unless it should be executed by other persons, who did not execute it, when it appears that the obligee had no notice of such condition, and nothing to put him upon inquiry as to the manner of its execution, and also that he has been induced, upon the faith of such bond, to act to his own prejudice.”
Before passing from this portion of the case it may be well to add a remark to our comments made in the Deardorff case upon the decision in the Supreme Court of the United States in Pawling v. The United States, 4 Cranch 219. The action was upon an appeal bond given by Ballinger and signed by Pawling, Todd, Adair and Kennedy as his sureties, who pleaded that they delivered the same as an escrow to one Joseph Ballinger, to be safely kept upon condition that if Simon Ingleman and William Patton, named on the face of the bond, should execute the same as cosureties, then the bond should be delivered to the agent of the United States, otherwise not. There was an issue upon this averment of a delivery as an escrow, and the question was presented to the court upon a demurrer to the evidence introduced by the defendants. Without commenting upon the allegation that an instrument not fully executed was delivered as an escrow, we cite a paragraph from the opinion of Chief Justice MARSHALL: “It
is also of some importance that the defendant Todd had previously declared that he would not be apprehensive of becoming a security for Ballinger, provided others whom he named should also become securities, and that he inserted the names of the others in the bond in the presence of the witness."
When it is considered that this is the original decision upon which all the cases rest, which assume to release the surety from liability when the name of his co-surety does not appear on the face of the instrument, the entire want of authority to justify their departure from sound principle can be appreciated.
The evidence in the case in judgment did not authorize the finding that the sureties were released because others did not sign the bond as co-sureties.
There remain but two questions. Of these there can be nothing predicated on the fact that the bond was not accepted upon its first presentation to the board of commissioners. No formal action was taken by the board at that time, but it remained in session to act upon the bond when presented, and the names of the sureties were left blank in the body of the instrument for the very purpose of procuring names sufficient to satisfy the board. A party signing and delivering an instrument in this condition must be held as agreeing that the blanks may be thus filled after he has executed it, and the evidence introduced shows full authority given to the principal to procure such signatures as he secured: Inhabitants of South Berwick v. Huntress, 53 Maine 89; Smith v. Crooker, 5 Mass. 538; Hudson v. Revett, 5 Bing. 368; Eagleton v. Gutteridge, 11 M. & W. 466.
The rule as stated in 1 vol. Leading Cases in Equity 157, in the note to Dearing v. Earl of Winchelsea, is, “ that where a note with the names of certain persons upon it, who stood in the relation of co-sureties for the maker, has been offered for discount, and not being satisfactory, the name of another person has been procured, who also became a surety for the maker, all these persons are co-sureties with one another, and subject to mutual contribution, though the earliest sureties had no knowledge of the last becoming a surety.” The cases fully sustain this doctrine: Stout v. Vauze, 1 Robinson (Va.) 169; Warner v. Price, 3 Wend. 397; Nortor v. Coons, 3 Denio 130; s. C., 2 Selden 33; Woodworth v. Bowers, 5 Ind. 277; Sesson v. Barrett, 6 Barb. 199; s. C., 2 Com. 406; McNeil v. Sandford, 3 B. Monroe 11.
The cases 0. O'Neale v. Long, 4 Cranch 60, and of Harper v. The State, 7 Blkf. 61, if to be sustained, must rest on the fact that a perfect instrument had been delivered by the original sureties, fully executed and filled up, and that the names of other sureties were afterwards inserted in the body of the instrument without the consent of such original sureties. Here the space was left blank for the very purpose of inserting the names of all who might sign the bond.
The name of Grinkemeyer, however, was forged to the bond; but this was the last name signed except that of Witt, and as the signatures preceding Grinkemeyer were in no way procured by the forgery, they cannot be released thereby. The supreme confidence evinced by Witt in "county papers” will relieve him from any suspicion of having been influenced to sign by any preceding names. Indeed, there are cases which would hold him as affirming the genuineness of the preceding signatures : York Co. M. F. Ins. Co. v. Brooks, supra; Terry v. Hazlewood, 1 Duvall (Ky.) 104.
The former decision in this case in 22 Ind. 399, is overruled for the reasons given in Deardorff v. Foresman, Blackwell v.
The State, Webb v. Baird, supra, and by the decision herein. It should have been regarded by our courts as overruled by the first two cases cited.
The judgment is reversed, with costs, and the cause
remanded for a new trial.
United States Circuit Court, District of Connecticut. SEMMES, ADMINISTRATOR OF LUCKETT, ~. CITY FIRE INSURANCE
The late rebellion was such a war as suspended the right of a citizen of Mississippi to sue on a policy of insurance in a Connecticut company.
In addition to this consequence of a state of war, the right to sue on such a policy was suspended by the Proclamation of the President, of August 16th 1861.
Where a policy contained an express provision that in any action under it commenced more than a year from the time of loss, the lapse of time should be conclusive evidence against the validity of the claim, the period of the war must be omitted in computing the year.
The condition of war existed as regards the state of Mississippi, at least from 16th August 1861, when the President, in pursuance of the Act of Congress of July
13th 1861, declared that state in insurrection. Whether the war commenced, in contemplation of law, before that date, not decided.
The legal period of the termination of the war depends not on the continuance or cessation of active hostilities, but on the acts of the departments of the govern ment to which political powers are intrusted. The Proclamation of the President of June 13th 1865, removing the restrictions on trade as to the states theretofore in insurrection, was a valid act of recognition by the executive department of the government of the termination of the war, and the right of plaintiff in this action, to sue, revived from that date.
This was a suit on a policy of insurance against fire issued to William R. Luckett, of Mississippi, dated August 3d 1860, upon a building situated at the Artesian Springs, Madison county, in that state. It was conceded that a total loss occurred on the 5th of January 1861, and during the life of the policy,—that the assured subsequently died,—and that the defendants are liable to his administrator in this suit, unless the right to recover is barred by lapse of time.
Suit was commenced October 31st 1866, and defendants pleaded the following condition of the policy: “It is furthermore expressly provided, that no suit or action of any kind against said company, for the recovery of any claim upon, or by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after any loss or damage shall occur; and in case any such suit or action shall be commenced against said company after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed conclusive evidence against the validity of the claim thereby so attempted to be enforced.”
Plaintiff replied (among other matters not important in the view taken by the court), that the assured, down to the time of his death, was a resident and citizen of the state of Mississippi, and that the plaintiff, during his whole life, has been and still is a resident and citizen of the same state. That from April 15th 1861, to April 2d 1866, a state of war between the so-called Confede rate States, including the state of Mississippi, and the United States, existed, whereby all right of the assured during his life, and of his administrator since his death, to maintain any action against the defendants, was by law suspended, during all that time.
This replication the defendants have traversed.
By stipulation the case was tried by the court instead of the jury.
William Hamersley f H. K. W. Welch, for plaintiff.
C. R. Chapman and A. P. Hyde, for defendants.
SHIPMAN, J.-[After stating the facts and disposing of some preliminary questions.]—The replication sets up the late rebellion, and alleges that a state of war existed between the organization known as the Confederate States, including the state of Mississippi, and the United States, from the 15th of April 1861, to the 2d of April 1866, whereby it is claimed that this contract and all right to sue upon it was, during all that time, suspended. There is no allegation that the courts of Mississippi, or the national courts in that state, were closed for any specific length of time, nor that the plaintiff, or his intestate, labored under any personal disability arising out of his actual participation in the war, nor that he was under the control of any vis major, beyond what the law implies from the state of war. The whole question, therefore, turns on the legal consequences of the war in their operation on this contract, and the length of time these consequences continued.
It is, of course, conceded that a state of war, recognised as such by and between the belligerent parties, suspends all contracts in existence between the citizens of the respective belligerents at the time the war commences. The authorities are uniform on this subject. The general rule is well stated by Mr. Justice Nelson in the Prize Cases, 2 Black 687. “The legal consequences resulting from a state of war between two countries at this day, are well understood, and will be found described in every approved work on the subject of international law. The people of the two countries become immediately the enemies of each other,-all intercourse, commercial or otherwise, between them unlawful, all contracts existing at the commencement of the war suspended, and all made during its existence utterly void.” This doctrine nas been repeatedly recognised and applied to our late civil war by the courts of this country, both state and national: Hanger v. Abbott, 5 Wall. 532; Tucker v. Watson, 15 Am. Law Reg. 22; Jackson Ins. Co. v. Stewart, Id. 732; Conn. Mut. Life Ins. Co. v. Hall, 16 Id. 606.