Pawling v. United States - 8 U.S. 219 (1808)
U.S. Supreme Court
Pawling v. United States, 8 U.S. 4 Cranch 219 219 (1808)
Pawling v. United States
8 U.S. (4 Cranch) 219
Upon a demurrer to evidence, the testimony is to be taken most strongly against him who demurs, and such conclusions as a jury might justifiably draw the court ought to draw.
A bond may be delivered as an escrow by the surety to the principal obligor.
The bond upon its face purports to be delivered absolutely, and it is not to be doubted the obligees would be more secure against fraud if the evidence that the writing was delivered as an escrow appeared upon its face than by admitting parol testimony of that fact. But the law is settled otherwise, and is not to be disturbed by this Court.
If one of the obligors, at the time of executing the bond, in the presence of some of the other obligors, says "we acknowledge this instrument, but others are to sign it," this is evidence from which the jury may infer a delivery as an escrow by all the obligors who were then present.
When words are to be proved by witnesses who depend on their memory alone, the precise terms employed by the parties will seldom be recollected, and courts and juries must form their opinions upon the substance and upon all the circumstances.
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, sometime 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 favor 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 handwriting 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.