Ex parte Kerwin
New York Supreme Court
One Polly appealed from the judgment of a justice against him, (P.,) at the suit of the relator, to the 0. P. of Washington county. The appeal bond was drawn in blank as to the recital of the judgment, and executed by Polly and his surety, the former giving parol authority to his surety to ascertain from the justice the amount of the judgment, fill up the blank accordingly, and deliver the bond for both, which was done.
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One Polly appealed from the judgment of a justice against him, (P.,) at the suit of the relator, to the 0. P. of Washington county. The appeal bond was drawn in blank as to the recital of the judgment, and executed by Polly and his surety, the former giving parol authority to his surety to ascertain from the justice the amount of the judgment, fill up the blank accordingly, and deliver the bond for both, which was done. On motion to the C. P., to quash the appeal, upon the ground that the bond was not fully executed, the court refused to interfere. A motion was now made for a mandamus,…
1Opinion of the Court
Curia.
We think the. bond was regularly executed upon competent authority. This is much like' the case, before Ld. Mansfield, of Texira v. Evans, cited by Wilson, J., in 1 Anstr. 228. There the defendant - wishing to borrow money, executed a bond with blanks for the obligee and sum, giving his agent power to insert the name of the lender and sum lent, both of which were then uncertain. This was done, and the bond held good on non est factum pleaded. That case is recognized as law, in Woolley v. Constant, (4 John. Eep. 60,) by Thompson, J., delivering the opinion of the court. [1]
Motion…
2Cases cited1 opinion
- Gibbs v. FrostSupreme Court of Alabama · 1843
3Cited by10 opinions
- State v. YoungSupreme Court of Minnesota · 1877
- Chauncey v. . ArnoldNew York Court of Appeals · 1862
- Lockwood v. BassettMichigan Supreme Court · 1883
- Simms v. HerveySupreme Court of Iowa · 1865
- State ex rel. Goddard v. DeanSupreme Court of Missouri · 1867
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