Fertig v. Bucher

Sergeant, J. It would certainly make a great difference to the defendant whether he was bound in company with eleven others in this bond of indemnity, or with a less number. In the one case,- his loss, if the parties continued solvent, could not exceed, according to the condition of this bond, one sixteenth of the whole; in the other case,' it would, unnecessarily, be more. ■ If the defendant, in executing the bond, expressly stipulated- that it should not be delivered up until twelve names were obtained, and the plaintiff’s agent so provided; the bond was in his hands but in the nature of an escrow, and if the condition was not performed, it was never legally delivered, and so was never the defendant’s deed. This is a stronger case than that of Sharp v. United States, 4 Watts, 22, when it was held that a bond containing in its body two names as sureties, was not binding on one who signed it, unless it were shown that he dispensed with the execution of it by the other. It was to be deemeá conditional. Here the condition is proved to have been expressly stipulated; and we see nothing in the evidence that shows the defendant subsequently dispensed with the condition. - Judgment affirmed.