People v. Hartley

Cope, J. and Norton, J. concurring.

The bond executed by Hartley and others embraces several distinct obligations. The principal and each of the sureties bind themselves in certain sums designated; and as we read the instru*589ment, not jointly and severally, but only jointly. The term “ severally,” as used in the instrument, applies only to the different sums which the parties respectively specify as the limit of the liability they assume. Being a joint bond, the signature of the principal was essential to its validity and binding force upon the sureties. As we said of the bond in the case of the City of Sacramento v. Dunlap, (14 Cal. 423) so .we may say of this: “ The liability of the sureties is conditional to that of the principal. They are bound if he is bound, and not otherwise. The very nature of the contract implies this. The fact that then signatures were placed to the instrument can make no difference in its effect. * * Some one must have written his signature first; but it is to be presumed upon the understanding that the others named as obligors would add theirs. Not having done so, it was incomplete and without binding obligation upon either.” (See Bean v. Parker et al., 17 Mass. 591; Wood v. Washburn, 2 Pick. 24; Sharp v. United States, 4 Watts, 21; Fletcher v. Austin, 11 Vt. 447; Johnson v. Erskine, 9 Texas, 1.)

The defects in official bonds, which may be cured upon their suggestion in a complaint, do not embrace the absence of the signature of the principal obligor. Without his signature the instrument is not his deed. There is no bond of his in which defects can be suggested and cured.

These considerations dispose of the case, and render it unnecessary to notice any of the other points discussed by counsel.

The judgment must be reversed and the Court below directed to enter judgment for the defendant upon the demurrer to the complaint ; and it is so ordered.