Monfort Wells v. Thomas O. Moore and another, Executors, 3 Rob. 156

Martin, J. The defendants are appellants from a judgment against tiie estate of their testator, Richard Winn, on two twelve months’ bonds executed by him as surety, but retained by his principal until after his, the testator’s, death; and their counsel contend, that there is no evidence that he bound himself, nor that the bonds were accepted by the sheriff.

The record shows that, after the sale, the principal named to the sheriff the defendant’s testator as his surety ; that the sheriff then gave him two blank bonds partially filled up, in order that they might be executed by both the principal and surety, which was accordingly done. It is urged that judgment was correctly given against the estate, Winn haVing been accepted as surety by the sheriff, and having afterwards bound himself, by his signature, to the bonds.

It is objected, that there was no acceptance of the bonds, and, therefore, no completion of the contract of suretyship, during the life of the testator; and that the delivery of the blank bonds, partially filled up by the sheriff, was not an acceptance oí the surety, who ought to have been accepted, not by the sheriff, but by the plaintiff in the execution ; that the sheriff, when the bonds were handed to him after the testator’s death, at first refused to receive, but after-wards took them. It appears to us that the court did not err.

The acceptance of the surety must precede his execution of the bond, for it would be in vain to execute it before the surety was approved.

The refusal of the sheriff at first, to take the bonds, when they were presented to him after the surety’s death, cannot be considered by the court as a circumstance destroying the evidence of his acceptance of the surety resulting from his having handed to the principal blank bonds, partially filled up, to be executed by the testator ; and his retaining the bonds afterwards, and filling them up, destroys the presumption which is attempted to be drawn from his refusal at first.

The sheriff is the agent of the plaintiff in the execution, in taking the defendant’s bond, and is liable to the former if he accepts an insufficient surety, and to the latter if he refuses a solvent one ; he is, therefore, the proper judge of the sufficiency of the surety, and, consequently, the person who is to exercise his judgment on the acceptance of the bond. Judgment affirmed.