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eBook details

• Title: Pawling and Others v. the United States
• Author : United States Supreme Court
• Release Date : January 01, 1808
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

ERROR to the district court for the district of Kentucky, in an action of debt upon an official bond given by Ballinger, as collector of the revenue, and signed and sealed 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 co-sureties, then the bond should be delivered to James Morrison, supervisor, on behalf of the United States, as their deed, and not otherwise; and that the same never was executed by Ingleman and Patton; yet Ballinger delivered it to Morrison, on behalf of the United States, and so not their deed. The delivery as an escrow being traversed by the United States, issue was thereupon joined; in the trial of which the United States demurred to the evidence produced on the part of the defendants, which consisted of the depositions of T. T. Davis, W. G. Bryant, one of the subscribing witnesses, Elijah Stapp, another subscribing witness, John P. Wagnon, another subscribing witness, and a letter from Morrison, the supervisor, to Ballinger. The deposition of Davis states a conversation, between Ballinger and Pawling, some time before the signing of the bond, in which the former told the latter that Todd, Kennedy, Shelby, Knox, Ingleman, Logan, Lewis, and Adair, had agreed to be security for him; upon which Pawling also agreed to become his surety, but upon the express condition that the other persons also should join in the bond. It also states a subsequent conversation between the deponent and Todd, before signing the bond, in which the latter denied that he had agreed to become Ballinger's surety, but said that he should not be apprehensive of danger, if all the men whom Davis had named would join in the bond.–The deposition of Bryant states that he saw Pawling, in the presence of Ballinger, sign the bond, on condition that Kennedy, Todd, Adair, Davis, and others, whom the witness did not recollect, should also sign the bond; and he understood that Pawling was to be exonerated if they did not. The deposition of Elijah Stapp states that he saw Pawling, in the hearing of Ballinger, acknowledge the bond as his act and deed, upon condition that others mentioned should also sign it. The deposition of Wagnon states, that when Todd, Adair and Kennedy signed the bond, Todd, in the presence of the other two, after inserting in the bond the names of other persons who he said were to sign it, called upon the witness to take notice that others were to sign it, and said, 'We acknowledge this instrument of writing, but others are to sign it.' The letter from Morrison to Ballinger says, 'I have received your favour by Mr. Davidson, who carries back your bond; not that I require more securities, but that you appeared anxious to have more; those who have already signed are very sufficient.' It was admitted by the attorney for the United States, that the names of Thomas Kennedy, John Adair, Simon Ingleman, and William Patton, inserted in the body of the bond as obligors, were in the hand-writing of the defendant, Todd. This evidence, upon the demurrer, was by the court below adjudged insufficient. The defendants, the sureties, took a bill of exceptions to the refusal of the court to suffer Ballinger, the principal obligor, to be examined as a witness for them, they having severed in their pleas. But as that question was not decided by this court, it is deemed unnecessary to state the arguments of counsel on that point. Pope, for the plaintiffs in error.

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