entitled to pass with his horse, leaving a narrow margin at the sides, along one of which the plaintiff attempted to lead his horse, in doing which the horse fell into the ditch and was killed. There was no controversy as to these facts; but the court, being unable to determine whether a person of ordinary prudence would have attempted to lead his horse through the alley under the circumstances, properly left that question to the jury. On the other hand, in Fleming v. W. P. R. R. Co., we held that, on the facts admitted by the plaintiff, it was perfectly apparent that a person of ordinary prudence would not have acted as he had done, and hence we decided, as a matter of law, that he was guilty of contributory negligence. These two cases will elucidate the question under review; and we deem it unnecessary to attempt a collation of the numerous authorities on the point. There can be no possible doubt, we think, both on reason and authority, of the correctness of the rule here announced.

As was said by Mr. Justice Johnson, in Ireland v. O. H. and S. Plank Road Co., 3 Ker. 533, "It by no means necessarily follows, because there is no conflict in the testimony, that the court is to decide the issue between the parties as a question of law. The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as a matter of law. On the contrary, it is almost always to be deduced as an inference of fact from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their weight and force considered. In such cases the inference can not be made without the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement which is consistent throughout. Presumptions of fact, from their very nature, are not strictly objects of legal science, like presumptions of law." In Kellogg v. N. Y. C. R. R. Co., 24 How. Pr. 177, Mr. Justice Mason, after quoting approvingly the foregoing opinion of Mr. Justice Johnson, adds: "What constitutes negligence in such cases, is determined by an inference of the mind from the facts and circumstances of the case, and as minds are differently constituted, the inference from a given state of facts and circumstances will not always be the same. I admit the facts may be so clear and decided that the inference of negligence is irresistible, and in every such case it is the duty of the judge to decide; but when the facts, or the inference to be drawn from them, are in any degree doubtful, the only proper rule is to submit the whole matter to the jury, under proper instructions." So in Gaynor v. O. C. and N. R. Co., 100 Mass. 21, Colt. J., in delivering the opinion of the court, said: "Courts must take notice of that which is matter of common knowledge and experience and when the plaintiff's case fails to disclose the exercise of ordinary care, as judged of in the light of such knowledge and experience, h. shows no right to a recovery. Ordinarily, however, it is to be settled as a question of fact in each case as it arises, upon a consideration of all the circumstances disclosed, in connection with the ordinary conduct and motives of men, applying as the measure of ordinary care the rule that it must be such care as men of common prudence usually exercise in positions of like exposure and danger. When the circumstances under which the plaintiff acts are complicated, and the general knowledge and experience of men do not at once condemn his conduct as careless, it is plainly to be submitted to the jury. What is ordinary care in such cases, even though the facts are undisputed, is peculiarly a question of fact, to be determined by the jury under proper instructions. It is the judgment and experience of the jury, and not of the judge, which is to be appealed to."

We think these cases, and many others of like import, which might be cited, state the rule correctly; and the conclusion to be drawn from them is that, if it clearly appears from the undisputed facts, judged of in the light of that common knowledge and experience of which courts are bound to take notice, that a party has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger, negligence, in such a case, is a question of law to be decided by the court. In all other cases, the question must be submitted to the jury, under proper instructions.

In support of these views we refer also to the late work of Mr. Field on the Law of Damages, who, at page 519, states the rule to be that, "to justify a nonsuit on the ground of contributory negligence, the evidence against the plaintiff should be so clear as to leave no room to doubt; and all material facts must be conceded or established beyond controversy." The rule we have announced is also supported by the following recent adjudications: Johnson v. Bruner, 61 Penn. St. 58; Quick v. Holt, 99 Mass. 164; B. C. P. R. Co. v. Wilkinson, 30 Md. 226; Barton v. St. L. and I. M. R. Co., 52 Mo. 253; Rudolphy v. Fuchs, 44 How. Pr. 155; Sexton v. Zell, 44 N.. Y 430; Perkins v. Decker, 21 Ohio St. 212.

At the trial, the Court, on the request of the defendant, instructed the jury that "the gravamen of this action is negligence of defendant, and plaintiff can not recover if he contributed in any degree to the injury sustained by him." The instruction is erroneous, in that it omits the important qualification that, in order to defeat a recovery, the negligence of the plaintiff must have contributed proximately to the injury. Counsel contends that the instruction as given was authorized by the language of the opinion of this Court in Gay v. Winter, 34 Cal. 153, and in Needham v. S. F. and S. J. R. R. Co., 37 Cal. 409.

There are some isolated expressions in these opinions which, if separated from the context, might lend some countenance to the proposition contended for; but taking the opinions as a whole, it is perfectly plain that there is nothing in them to justify the conclusion drawn from them by the counsel. A question was raised at the argument, whether the plaintiff had reserved exceptions at the trial to the instructions of which he complains. But though the language is somewhat ambiguous, we think, it sufficiently appears that the exceptions were reserved.

Judgment and order reversed, and cause remanded for a new trial. McKinstry. J., not having heard the argument, expressed no opinion.

NOTE. For several comparatively recent cases, in each of which the court declared, as a matter of law, that the plaintiff had been guilty of contributory negligence, and, therefore, could not recover, see Fleming v. W. P. R. R. Co., 49 Cal. 253; Deville v. S. P. R. R. Co., 49 Cal. 383; P. & C. R. R. Co. v. McClurg, 56 Pa. St. 294; Delaney v. M. & S. R. W. Co., 33 Wis. 67; Nicks v. Town of Marshall, 24 Wis. 139; Langhoff v. M. & P. R. R. Co., 23 Wis. 43; Rothe v. M. & S. R. W. Co., 21 Wis. 256; Lewis v. B. & O. R. R. Co., 38 Md. 579; P. & C. R. R. Co. v. Andrews, 39 Md. 329; Haight v. N. Y. C. R. R. Co., 7 Lans. 11; Gonzales v. N. Y. & H. R. R. Co., 38 N. Y. 440; Wilcox v. R. W. & O. R. R., 39 N. Y. 359; Morris v. Haslan, 33 N. J. L. 147. The case of Fernandez v. Sac. City Railway Co. must be regarded as overruling some prior opinions expressed by the same court. In Gay v. Winter, 34 Cal. 163, Mr. Justice Sanderson, delivering the opinion of the court, said: "The gravamen of the action is the negligence of the defendant, and, as a general proposition, it follows therefrom, that the plaintiff can not recover if it appears that his own negligence contributed, in any degree, to the injury which he has sustained." Language, substantially identical, was used by the same judge in pronouncing the judgment of the same court in Needham v. S. F. & S. J. R. R. Co., 37 Cal. 419. The counsel for the defendant in the Fernandez case, in preparing his in

structions, but copied the language]of the Supreme Court of his own state. This practice is generally safe. In this particular case it proved unsafe; for the court now maintains that it is not sufficient that the negligence of the plaintiff should have contributed, in some degree, to his injury. The negligence of plaintiff must have, proximately, contributed to his injury, or it will not preclude his recovery. The doctrine expressed by Mr. Justice Sanderson, in the earlier California cases, is in harmony with the decisions of some of the other states. Gonzales v. N. Y. & H. R. R. Co., 38 N. Y. 441; Artz v. C. R. I. & P. R. R. Co., 38 Iowa, 293: Johnson v. Tillson, 36 Iowa, 89; Hurch v. C. R. R. Co., 9 Foster, 9; Kellogg v. Steamboat, 19 La. Ann. 304. But the conclusion now announced in the Fernandez case is better supported by the authorities. Wharton on Negligence, secs. 326 to 331. A. C. F.

1. CURATOR'S BOND-CONDITIONAL SIGNING.-A curator's bond, perfect on its face, can not be avoided at the instance of a surety, upon the ground that he signed it under a conditional agreement, made with his principal, that the latter was not to deliver it until the signature of a certain person was also obtained, although in violation of such agreement the bond was delivered.

2. BOND CONTEMPORANEOUS PAROL AGREEMENT.Testimony concerning a contemporaneous parol agreement is always objectionable, but in instances like the present, doubly obnoxious, where the agreement is kept sedulously concealed from the other contracting party.

3. ESTOPPEL.-In such cases, the doctrine of estoppel in pais is fully applicable, and effectually precludes the surety from asserting anything to the contrary of that denoted by the face of the bond.

4. PUBLIC POLICY-PATRIMONY OF ORPHANS. - Public policy forbids that a surety, in cases of this sort, should defend and defeat an action brought in the bond; because it concerns the state that the patrimony of orphans, confided to the protection of her courts, should not suffer loss.

ERROR to Pettis Circuit Court.

SHERWOOD, J., delivered the opinion of the court: We are to determine whether a curator's bond, regular in form, can be avoided at the instance of a surety, upon the ground that he had signed it under a conditional agreement, made at the time with the principal, that the latter was not to deliver the bond until the signature of a certain person had also been obtained, and that, notwithstanding such agreement, and in violation of it, the bond was delivered.

The question has been one prolific of litigation, and the conclusions reached by different tribunals have frequently exhibited no inconsiderable lack of uniformity. But it is thought that many decisions which, at first blush, appear incapable of being harmonized, will be found, on more narrow examination of the controlling facts incident to each, to bear a closer resemblance than casual observation would, at the outset, lead us to suppose. In intimate connection with the subject under discussion, we are asked to review some of our former decisions, in order that it may be ascertained whether they will bear the test of a closer and more deliberate examination than heretofore bestowed; an examination commensurate, both with the importance of the topic involved, and with the greater facilities now afforded for such investigation, in consequence of recent and elaborate adjudications, some of which were not accessible, or else were

overlooked, at the time our own, now sought to be reexamined, were rendered.

In the case of the State v. Sandusky, 46 Mo. 377, the point in hand was not involved; there were neither the proper averments in the answer, in respect of a conditional delivery of the bond; nor, if there had been such averments, was there any evidence adduced which could have been offered in their support; "the only real defense" was a denial, by the defendant, of his signature. Any remarks, therefore, in that case, relative to the matter now before us, can not be held as possessing authoritative value. And the same may be said of Cutter v. Whittemore, 10 Mass. 442, referred to in the case just cited. So far as Gasconade County v. Sanders, 49 Mo., 192, has relevancy to the present case, it is an authority favoring the position of the beneficiaries in this action; for the point is there conceded in argument, that, "where the principal in a a bond, or other person not acting as the agent of the creditor, fraudulently procures the names of sureties to a bond, and the creditor takes the bond and loans his money without any knowledge of the fraud practiced on the sureties, he can not be made to suffer by such fraud. Their remedy is against the party who defrauded them, and not against the creditor;" and the judgment of the trial-court was reversed, because of failure to recognize the validity of the defense, that the defendant's signature was procured by the fraud and forgery of the agent of the county. Linn County and. State to use, etc., v. Farris, 52 Mo. 75, gives full recognition to the doctrine of the condition or delivery of a bond by one conditional obligor to another, and of invalidity of such delivery, when violative of previously imposed conditions. From the meager statement, it does not appear whether or not the officer who received the bond was cognizant of the facts afterward relied on as a defense. There, however, the name of one of the apparent sureties was forged; but in the line of remark pursued in the opinion, no particular stress is laid on the forgery, only so far as its existence showed a failure of compliance with antecedent requirements; and the decision is altogether based on the idea that, in consequence of the terms imposed by the surety not having met with performance, no valid execution of the bond had occurred, although, curiously enough, a remark of similar import to that already quoted from Gasconade County v. Sanders, is indulged in. Now, if these episodal observations assert the true rule in relation to the rights of an ordinary creditor, who is not aware of, nor a participant in, the fraud practiced by the principal on his surety, would it not seem to follow that a like rule should prevail where, under similar circumstances, the officer appointed for that purpose is the recipient of either an official bond or of one for the direct payment of money? May it not be asked, with much pertinence, wherein the attitude of the county or state differs from that of a private individual in this regard, and may not those who assert the existence of an attitudinal difference in this respect, be called on to establish, by something more than mere assertion, why the creditor should not "be made to suffer by such fraud" on the one hand, while the county or state is "made to suffer" on the other?

In Ayers v. Milroy, 53 Mo. 516, a division of opinion occurred as to the method pursued in the discussion of that case, the majority opinion proceeding on the theory of conditional delivery to a co-obligor, while that of the minority concurs in the result upon the peculiar facts. There the suit was on a non-negotiable note, signed by the surety on the express condition, which was not complied with by the principal, that he would obtain the signature of another surety, before delivering the note to the creditor. And it was held that these

facts constituted a valid defense, and that the same rule was applicable to all instruments, not negotiable, whether notes or bonds. The conclusion reached was a correct one, whatever may be thought of the reasons on which it was based; for it was conceded throughout the whole case, that the plaintiff was apprised of the condition on which the surety was to be bound. Knowing this, the plaintiff acted in bad faith in his acceptance of the note, and therefore should have been denied a recovery on that ground alone, regardless of other considerations; and this last ground was the one which induced the concurrence of those who, disapproving of the reasoning employed, joined in the approval of the result. In both of the two preceding decisions, it will be observed that the sole basis of the ruling is a lack of power in the co-obligor to make the delivery of the instrument in question. Other authorities, relied on by defendant as sustaining the action of the court below, will now be noticed, including those on which the cases just cited were based.

Pawling v. United States, 4 Cranch, 219, is to the effect that, if a surety signs an official bond, and delivers it to his principal, on condition that others, whose names were inserted in the body of the bond, should also sign it, this delivery of the bond only made it an escrow, and if the requisite signatures were not obtained, that the surety was not bound. In Duncan v. United States, 7 Pet. 435, the bond also lacked completeness in a similar manner. It does not appear whether there was any defect, or irregularity in the bond in suit, in the case of the Uniled States v. Leffler, 11 Pet. 86, and the only point considered was as to the competency of certain witnesses, respecting the conditional execution of the bond. The circumstances under which the evidence was held competent are not set forth; and, in all probability, the facts were like those of Pawling v. United States, supra, and it was controlled by that decision. Seely v. People, 27 Ill. 173, holds, that where a party signs his name to a bond as co-surety with another, and such other's signature had been forged, the surety, supposing the signature to be genuine, will not be liable. But the case also, arguendo, condemns in pointed terms the doctrine which it is cited as upholding, and evidently proceeds upon the theory, that to the surety not the slightest negligence was attributable. In Leaf v. Gibbs, 4. C. and P. 466, the surety was to sign, upon condition that his mother should do the same; but she refused, and, as the plaintiffs were informed of the terms on which the son's signature was obtained, he was held not liable, unless, knowing the facts, he had waived the objection. Perry v. Patterson, 5 Humph. 133, was, in its salient features, similar to the one just mentioned. A compromise was effected between a debtor and the attorney of his creditor, whereby it was agreed that two sureties should sign a note with the debtor, and that this note, when signed by sureties who were named and agreed to be received, should be accepted, and operate as a stay, for twelve months, of the judgment, for the amount of which the note was to be given. A blank note was accordingly prepared with three seals, which was signed by one of the sureties, on condition that the other intended surety should sign also. This the latter refused; but the attorney to whom the note had been delivered by the principal, never received the note in payment of the judgment, as he still insisted on having the two sureties, as per agreement. And, besides, the note was not delivered to the attorney in execution of the agreement," but merely lodged with him, till such time as the surety could be induced to sign it." So that the note was incomplete; it was never delivered, and the attorney with whom it was "merely lodged," knew all about the attending facts. The head-notes of this decision are inaccurate, and well calculated to mislead; there was no "ignorance of the creditor" of the cir

cumstances, unless the knowledge of the attorney is to be deemed the ignorance of his employer. The remarks, therefore, as to the effect of the creditor's ignorance, are wholly outside of the case, since the proof shows nothing of the sort. Carter v. McClintock, 29 Mo. 464, simply declares that no delivery of a note occurs where the payee surreptitiously obtains possession thereof, and that he can not maintain an action thereon. Pidcock v. Bishop, 3 Barn. and Cress. 605, holds merely that, where a creditor and his debtor have made a secret arrangement which, without the knowledge of the surety, increased his responsibility, this was a fraudulent concealment, of which the creditor could not take advantage, and which accomplished the surety's exoneration.

The gist of the decision in Lloyd v. Howard, 1 Eng. L. and Eq. 227, is that, if a bill of exchange be delivered by A to B for a specific purpose, which the latter does not accomplish, but retains the bill till overdue, and then delivers it to C without value, C is not a bona fide holder, and can not maintain an action against A as indorser. Palmer v. Richards, in the same vol. p. 529, was based on a different state of facts. The bill was indorsed by A in order to have it discontinued, and delivered to B for that purpose, who applied it to his own purposes, by depositing it prior to maturity, as a security for money advanced, and held that the indorsement of A bound him. Awde v. Dixon, 5 Eng. L. and Eq. 512, seems to establish that, if a blank in a negotiable note be (contrary to a previous stipulation with a surety, that another surety shall sign before delivery), filled with the name of the party as payee, who advances the money on it, the surety is not bound. The note there, however, would appear to have been incomplete, as a blank space was left where the intended surety was to sign. But if this circumstance was not taken into account, the decision is clearly contrary to the decisions of this court, and of other American tribunals. 1 Pars. N & B. 111, and cases cited. 10 Jur. N. S. is not accessible; but if we may rely on a report of the case of Swan v. Australasian Co., Id. 102, the facts were substantially these: A was induced by his broker to send him blank forms of transfer, which the broker filled up with numbers and descriptions of shares different from those of the company intended by A, being shares in the defendant's company, and by means of a duplicate key, which he had procured to be made without the knowedge of A, obtained certificates from a box of A's necessary to perfect the transfer, and also forged the names of the attesting witnesses; and held, in action against the company for damages, and for a mandamus to restore the plaintiff's name to the registry, that the acts of the plaintiff were not such as estopped him from showing that the deed of transfer was a forgery. In short, the ruling goes only so far as to assert that the combined acts of larceny and forgery, on the part of the agent, did not estop the plaintiff from the assertion of his rights; and it would have been strange, indeed, had the ruling been otherwise, since it is plain to see that merely trusting blank forms of transfer to the agent did not enable him to perpetrate a fraud upon a third party, but, in addition thereto, required a contemporaneous conjunction of two crimes, in order to the fraud's consummation.

In Preston v. Hull, 23 Gratt. 600, the bond was incomplete on its face, lacking the name of the payee, and the single point decided was, that parol authority would not authorize any one to fill the blank left, in the absence of the principal. Johnson v. Baker, 4 B. and Ald. 440, shows the instrument, a compositiondeed, to have been incomplete when delivered to one of the creditors to procure the signatures of the others therein named. Fletcher v. Austin, 11 Vt. 447, discusses the point of delivery; but there the bond dis

played its own incompleteness in the lack of signatures corresponding with the names inserted in its body, and there the court expressly says: "If the bond contains the names of other obligors, and is delivered without the signatures of all, the obligee must inquire whether those who have signed consent to its being delivered without the signatures of the others." Now, if the duty of inquiry on the part of the obligee has its origin in palpable omissions in the bond, would it not seem to follow, with conclusiveness, that no inquiry is requisite where no defect exists? The bond mentioned in State Bank v. Evans, 3 Greene, N. J. 155, was incomplete, in that it lacked the signature of Olden, one of the named obligors. In Lovett v. Adams, 3 Wend. 380, the only point in judgment was the propriety of the rejection of two co-obligors as witnesses; but the occasion was improved to the discussion of other points. Besides, the report of the case clearly shows that nine sureties signed a bond for the payment of a certain sum of money, and sent the bond to be delivered to the plaintiffs on condition that previously arranged terms were complied with, whereby such sureties would be indemnified against the risk incident to their suretyship. The plaintiffs refused acceptance of these terms, and subsequently, by a new and different arrangement, entered into with five of the obligators (without the knowledge or consent of the remaining four), accepted the bond and then brought suit, not against the five who had, but against the four who had not consented to such an arrangement. In Bronson v. Noyes, 7 Wend. 188, the sheriff, the recipient of the bond, was cognizant of the conditions upon which the surety signed, and in effect promised that those conditions should either meet with compliance, or else bail should be procured. In Herdman v. Bratten, 2 Harrington, 396, the bond was plainly incomplete. That case was decided, however, on another point-the alteration of the bond, by the erasure of certain names which were in the body of the bond, at the time the signing in question occurred; and, moreover, the sheriff, to whom the replevin bond was executed, was apprised of the express condition on which the surety signed, and afterwards, it seems, erased the names of those whose signatures he was to procure. In Bibb v. Reid, 3 Ala. 88, the administrator's bond was lacking in nothing, and it was held that it was capable of delivery to a co-obligor as an escrow, and was invalid unless on performance of conditions; and some of the same authorities already examined were cited in support of the position.

The People v. Bostwick, 32 N. Y. 445, is based on a portion of the authorities heretofore noticed. There was no infirmity patent on the face of the bond, and the case was discussed on the theory both of the delivery of the bond to a co-obligor as an escrow, to await the fulfillment of prior requirements, and on that of estoppel, and the conclusion reached favoring the former view and relying on it, and opposed to the latter.

A result, diametrically opposed to the one just announced, has been reached in Indiana, where, after an exhaustive examination and discussion of the authorities, it is held, not only that one surety is incapable of delivering a bond or other instrument of like nature to his co-obligor, as an escrow, but that the surety was bound, regardless of the giving or disobedience of secret instructions, if the instrument was perfect on its face, and the co-obligor clothed thereby with apparent authority to deliver it. And the case of Pepper v. State, 22 Ind. 399, has been expressly overruled in Pepper v. State, 31 Ind. 76, where the cause came the second time before the supreme court. Similar rulings had been also made in Deardorff v. Foresman, 24 Ind. 481; Blackwell v. State, 26 Ind. 204, and Webb v. Baird, 27 Ind. 368.

Bagot v. State, 33 Ind. 262, does not militate against

these rulings, though the case is very loosely and obscurely reported, and a great deal of unnecessary matter introduced. The substance of the case, and of the point in judgment, is this: That parol authority is insufficient to authorize one having no connection with an official bond to sign the name of a third person to such bond, unless the signing takes place in the presence of him giving the verbal authority. The opinion was delivered by Fraser, J., who was on the bench with Ray and Gregory. JJ., when all the cases subsequent to Pepper v. State were decided, and who had delivered an emphatic opinion on petition for rehearing in State v. Pepper, in which he explicitly concurred with his associates in upholding the doctrine announced by them in 24, 26 and 27 Ind., supra, and who were still his associates when Bagot v. State was decided. Under these circumstances, the assumption is a very bold one that the judge who delivered the decision in the case last cited, or those who concurred with him therein, intended to announce any doctrine variant from their prior conclusions. The rule thus enunciated is this: "That, where the surety places the instrument, perfect upon its face, in the hands of the proper person, to pass it to the obligee, the law justly holds that the apparent authority with which the surety has clothed him shall be regarded as the real authority; and, as the condition imposed upon the delivery was unknown to the obligee, therefore, the benefit of such condition shall not avail the surety." And, to use the language of Fraser, J., in delivering the opinion of the court on motion for re-argument in State v. Pepper, "the subject had been examined by all the judges in consultation, to the extent of a critical inspection (to a considerable extent repeated) of the cases cited, and of those referred to by all other courts, as supporting the ruling of this court in this cause when formerly here. The result has been, not only a clear conviction on the part of the whole bench, as expressed in the opinion in this and the Deardorff case, but also a wonder how, upon a thorough examination of the subject, any other conclusion could be arrived at."

It has doubtless been observed that, in nearly all the cases relied on by defendant, of which I have given the gist, the judicial utterances were mere obiter dicta, or else, there was something apparent on the face of the bond evincing incompletion, or some attendant circumstance showing knowledge, or its equivalent, on the part of the recipient of the bond or other instrument, that its delivery was not to occur, except other signatures were first obtained, or other antecedent acts done of equal importance. This is true of every case instanced from other states, except that of People v. Bostwick, and Bibb v. Reid, supra, the latter of which discusses only, and very briefly, the question of conditional delivery by one co-obligor to another; and that is the ground whereon the decision in People v. Bostwick is chiefly based; and our own adjudications, as above seen, are exclusively based on that ground.

Did we care to press the point, it might not, perhaps, in a manner at all consonant with rudimentary definitions, be easy to explain how an instrument could be deemed an escrow unless delivered as such to a third person; nor how, if an escrow, it could be incomplete. But we are content to waive the point, since it is not plainly necessary to the proper disposal of this case, being desirous of placing that case on broader grounds than those incident to a narrow technicality.

An estoppel in pais is said to arise when an act is done, or statement made, by a party, which can not be contradicted without fraud on his part, and injury to others, whose conduct has been influenced by the act or admission. Lickbarrow v. Mason, 2 T. Rep. 63, 70. Here, the surety, who defends this action, had invested the principal with an apparent authority to

deliver the bond, and there was nothing on the face of the bond, or in any of the attending circumstances, to apprise the official who accepted it, that there was any secret agreement which should preclude the acceptance of the bond, and the surety is alone in fault in the matter, as, but for his unwarranted trust in Turley, the latter would never have had it in his power to occasion the loss which the beneficiaries of this bond must suffer, if the defence made by the surety is successful. Surely, then, a more opportune application of the language of Lord Holt, in Hern v. Nichols, 1 Salk. 289, could not occur, than to the case before us, that, "seeing that somebody must be a loser by this deceit, it is more reason that he that employs and puts trust and confidence in the deceiver should be a loser, than a stranger." If the doctrine of estoppel would not apply here, might not the significant query well be asked: To what state of facts would it apply?

Now, the rule is well settled that, if I stand by, and without objection see another dispose of my property, I can not be afterward heard to assert ownership in it; and this in accordance with the maxim: "That he who did not speak when he should have spoken, shall not be heard now that he should be silent." In such instances the question of power to make the sale and pass the title, is one not worthy of a moment's consideration. The only proper inquiry is: Did I, by my silence, give the purchaser reason to infer that his vendor had the right to dispose of the property? If so, then, upon every principle of fair dealing, the true basis of such estoppels, I am estopped to assert anything to the contrary of what my silence might naturally be inferred to indicate, and the hypothetical case is by no means stronger than the real one under discussion. For the officer, to whom was committed the duty of taking the bond, had literally conformed to that duty, by the acceptance of an instrument, perfect in every particular, and emanating from the proper custody; and he had, therefore, the right to infer, and it was the defendant's conduct which gave origin to this reasonable inference, that the delivery of the bond was in conformity to the usual course of such transactions.

A stronger case of estoppel could not well be conceived than this, where a surety, after standing by for years, and allowing the patrimony of orphans to be squandered, now steps in, at this late day, and asserts that, owing to a hitherto undisclosed arrangement, he, although apparently bound for any default of his principal, was not, in fact, bound. This subject of estoppels, and under what circumstances they arise, considered with reference to bonds, has recently undergone discussion in the National Supreme Court, and the same result been reached as above; and the ruling made in Pawling v. United States, which is the basis of all subsequent kindred decisions in this country, is explained on grounds entirely satisfactory, and similar to those already adverted to. Dair v. United States, 16 Wall. 1. To the same effect are exhaustive and elaborate discussions in Virginia and Maine. State v. Peck, 53 Me. 284; Nash v. Fugate, 24 Gratt. 202.

But there are other elements which also enter into a proper consideration of this cause, and which, on that account, should not be ignored. Are not sureties sufficiently solicitous about escaping from what they regarded, when signing, as remotely contingent possibilities, without opening new avenues to facilitate their eager escape? And would it not be acting in flagrant violation of one of the most familiar rules of evidence, and of the very spirit of the law itself, to permit formally executed securities to be annulled by testimony of some contemporaneous parol agreement? If, under ordinary circumstances, such testimony would be objectionable, would it not be doubly ob

noxious in cases like this one, where the agreement is kept sedulously concealed from the other contracting party? There is but one answer-an emphatic affirmative-that can be returned to these questions.

Again, it concerns the state, that the heritage of the helpless, confided to the protection of her courts, should not suffer detriment. The consequences would be fraught with disaster, and it would be subversive of the plainest dictates of public policy, if sureties in such cases were permitted, by means of some "ill-remembered conversation," or some occult understanding, never disclosed but under the shadow of impending loss, to escape liabilities which their own solemn deed and recorded specialty announces them to have incurred.

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These reasons appear to us conclusive that the following declaration of law asked by plaintiff, should have been given: Although the court may believe, from the evidence, that the defendant, Jabez H. Potter, may, at the time of his signing the bond sued on, have had the agreement with James M. Turley, the principal in said bond, that said Turley was not to file said bond, or deliver the same, until Wm. E. Bothrick also executed said bond as surety; yet, if said bond was afterwards, in violation of said agreement, filed by said Turley, in the County Court of Pettis County, Missouri, and was approved by said court, and said bond was, when so filed and approved, complete and regular upon its face, and the officers of said court had no notice of said agreement between said Turley and said Potter, then such agreement constitutes no defense to this suit, and the court must find for the plaintiff," and that the one of a contrary effect should have been refused.

In so far as our former decisions are in opposition to this view, they are overruled. Judgment reversed, and cause remanded. Judge Wagner absent; Judges Napton and Hough concur.

NOTE.-There seems to be a growing disposition in the courts of this country to extend the doctrine of estoppels in pais considerably beyond its original scope, in its application to both negotiable and non-negotiable instruments. In this movement the Supreme Court of the United States has taken and maintained the lead, many of the state courts following very reluctantly. The statement of this doctrine in the foregoing opinion is, certainly, conservative enough to meet the approbation of the most old-fashioned lawyer. The language of the court is: "An estoppel in pais is said to arise when an act is done, or statement made, by a party, which can not be contradicted without fraud on his part, and injury to others, whose conduct has been influenced by the act or admission." Such is, we believe, the present, as well as the ancient, English doctrine. The application of this rule, however, to the facts of the foregoing case, is not so clearly obvious. The plea of the surety did not involve an admission of fraud on his part; at most, he was guiltly of negligence merely. It does not appear that he knew that the bond had been delivered by his principal until suit was brought. If, knowing that the bond had been delivered in violation of the condition imposed by him, the surety had stood silently by and permitted obligations to be incurred on the faith of it, the estoppel would be unquestionable.

The famous remark of Lord Holt, that, "seeing that somebody must be a loser by this deceit, it is more reason that he that employs and puts trust and confidence in the deceiver, should be a loser than a stranger," is, doubtless, a very well established and a very just rule; but it does not settle much here, for the reason that the main controversy is, whether the surety did employ and put trust in his principal, and whether the party to whom the instrument was delivered, was under any obligation to see that the instrument had been properly executed. The party to whom a non-negotiable instrument is delivered, must, of course, accept it, believing that the party delivering it was authorized to do so; if that belief is a mistaken one, he is deceived by one in whom he put confidence, and, according to the rule, must suffer the consequences of his misplaced confidence. The rule is not valuable in such a case