Mitchell, J.1
Upon the agreed statement of facts in this case there are two questions of hrw to bo passed upon : First, whether the instrument declared on ever was a valid bond? Second, if it was, did its obligation extend to those moneys received by Young on account of purchase-money of school and university lands?
The defendants urge that the instrument in question never had any force as against them ; because : (1) When signed and sealed by them it did not express any penal ■sum, and this was afterwards inserted at the direction of the board of county commissioners, without authority; ■ and (2) if executed at all, it was executed on Sunday.
In support of their first proposition, defendants insist that this instrument being a deed or instrument under seal, therefore authority to fill a blank therein with material matter could only be conferred by an instrument of equal solemnity — that is to say, one Under seal.
Whatever may formerly have been the rule, or may still be the holding of some courts, upon this question, we think [557]*557the better opinion, both on principle and authority, is that parol authority is adequate and sufficient to authorize an addition to, or alteration of, even a sealed instrument. At the present day, the .distinction between sealed and unsealed instruments is arbitrary, meaningless, and unsustained by-reason. The courts have, for nearly a century, been gradually doing away with the former distinctions between these two classes of instruments, and if they have not yet wholly disappeared, it simply proves the difficulty of disturbing a rule established by long usage, even after the reason for the rule has wholly ceased to exist. We therefore hold that parol authority is sufficient to authorize the filling of a blank in a sealed instrument, and that such authority maybe given in any way by which it might be given in case of an unsealed instrument. Drury v. Foster, 2 Wall. 24 ; Inhabitants of South Berwick v. Huntress, 53 Me. 89 ; Woolley v. Constant, 4 John. 54; Ex parte Kerwin, 8 Cow. 118; Wiley v. Moore, 17 S. & R. 438 ; Field v. Stagg, 52 Mo. 534 ; Vliet v. Camp, 13 Wis. 198 ; Smith v. Crooker, 5 Mass. 538. Therefore, in our view, tlie only question is whether the facts, as stipulated in this case, establish parol authority from defendants to the board of county commissioners to. insert a penal sum in the blank left in this instrument.
There is no claim that any express authority Avas given ;• but this is not necessary. Such authority may bo implied from circumstances. It may be implied from the facts, proved, AAdien these facts, all taken together and fairly considered, justify the inference. In the case at bar, wo think that all the circumstances, as they appeared to the board at the time they received the bond, established an apparent implied authority, from the sureties to the board, to fill the blank Avith such penal sum as they deemed sufficient and proper.
It is stipulated, as facts in the case, that the sureties “did knoAV, Avhen they sigued and sealed the said instrument, that the same was intended by the said Young to be used [558]*558as the official bond of the said Young for his term, commencing March 1, 1872; and they severally signed and sealed the same as and for such his official bond; and, at the time of signing and sealing said instrument, the said sureties intended to be bound that said Young, as such treasurer, should perform the condition thereof.” The instrument was fully completed, except the insertion of the penal sum. It is evident that the sureties neither stipulated nor expected that the instrument would be returned or afterwards exhibited to them, before its delivery for use. When the bond was presented to the board, they had a right to presume the existence of the facts thus stipulated. The board would also have a right to presume (certainly, in the absence of something affirmative to show the contrary) that the signers knew the contents of the bond when they executed it; also, that they knew the requirements of the law, to wit, that the instrument, to bo a complete bond, must contain a penal sum, and that the amount thereof had to be fixed by the board. This was the apparent and presumptive state of facts, as they appeared to the board when the instrument was presented them for their official action.
Now what did these facts imply, and what had the board a right to presume that they implied ? Why, clearly this : “We (the sureties) have executed this instrument as the official bond of Young. We intend it to be used and delivered as such; but, inasmuch as we do not know at what amount you will fix the penal sum which the law requires you to fix, we have left this blank, which you can fill Avith such sum as you may determine.” We think all the circumstances, fairly considered, imply all this almost as clearly as if expressed in Avords. The nature of the blank to be filled, also, was calculated to raise a presumption of implied authority to fill it. The condition of a bond is the essential feature of it. The penal sum is, in a certain sense, almost a matter of form. In this case, the sureties intended to execute a bond to secure the state from loss by [559]*559.any default of Young. This was the whole substance of their agreement. No penal sum, however large, could extend this liability. The insertion, therefore, of a penal sum, operated simply to perfect the bond according to the original understanding of the signers, Avithout injuriously affecting them, or in any manner changing the contract from what they intended it to be. It was in one sense, therefore, Avholly immaterial to them Avhat the penal sum should be. The nature of the blank itself Avas, therefore, a circumstance or fact that tended to shoAV an implied authority to the board to fill it. Cases are to be found in the books Avhere implied authority to fill blanks has been held to exist, Avithout any evidence of assent on the part of the maker beyond the instrument itself. We think, therefore, that all these facts and circumstances clearly implied an authoritj' to the board to insert a penal sum in this blank, AA'hich authorized them to act m the matter by so filling it.
It is urged by defendants that this authority could not be implied, because the sureties did not in fact knoAV of the existence of the blank. It. is undoubtedly true that in most, if not all, of the cases cited it does appear that the parties .signing the instrument actually knew of the existence of the blank ; and the kuoAvledge of that fact, at the time an instrument is delivered for use, being a strong circumstance tending to establish an implied authority to the other parly to fill the blank, it is undoubtedly true that the courts lnwo, in such cases, put great stress upon this circumstance. But Ave find no case expressly holding that actual knowledge of the existence of the blank is indispensable, and Avithout which authority can never be implied. The correct rule seems to be that this authority aatII be implied whenever it is fairly and legally inferrible from all the circumstances of the particular case under consideration. Moreover, in this case, as Ave have already said, the board had a right to presume that the sureties knew of the existence of this [560]
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Mitchell, J.1
Upon the agreed statement of facts in this case there are two questions of hrw to bo passed upon : First, whether the instrument declared on ever was a valid bond? Second, if it was, did its obligation extend to those moneys received by Young on account of purchase-money of school and university lands?
The defendants urge that the instrument in question never had any force as against them ; because : (1) When signed and sealed by them it did not express any penal ■sum, and this was afterwards inserted at the direction of the board of county commissioners, without authority; ■ and (2) if executed at all, it was executed on Sunday.
In support of their first proposition, defendants insist that this instrument being a deed or instrument under seal, therefore authority to fill a blank therein with material matter could only be conferred by an instrument of equal solemnity — that is to say, one Under seal.
Whatever may formerly have been the rule, or may still be the holding of some courts, upon this question, we think [557]*557the better opinion, both on principle and authority, is that parol authority is adequate and sufficient to authorize an addition to, or alteration of, even a sealed instrument. At the present day, the .distinction between sealed and unsealed instruments is arbitrary, meaningless, and unsustained by-reason. The courts have, for nearly a century, been gradually doing away with the former distinctions between these two classes of instruments, and if they have not yet wholly disappeared, it simply proves the difficulty of disturbing a rule established by long usage, even after the reason for the rule has wholly ceased to exist. We therefore hold that parol authority is sufficient to authorize the filling of a blank in a sealed instrument, and that such authority maybe given in any way by which it might be given in case of an unsealed instrument. Drury v. Foster, 2 Wall. 24 ; Inhabitants of South Berwick v. Huntress, 53 Me. 89 ; Woolley v. Constant, 4 John. 54; Ex parte Kerwin, 8 Cow. 118; Wiley v. Moore, 17 S. & R. 438 ; Field v. Stagg, 52 Mo. 534 ; Vliet v. Camp, 13 Wis. 198 ; Smith v. Crooker, 5 Mass. 538. Therefore, in our view, tlie only question is whether the facts, as stipulated in this case, establish parol authority from defendants to the board of county commissioners to. insert a penal sum in the blank left in this instrument.
There is no claim that any express authority Avas given ;• but this is not necessary. Such authority may bo implied from circumstances. It may be implied from the facts, proved, AAdien these facts, all taken together and fairly considered, justify the inference. In the case at bar, wo think that all the circumstances, as they appeared to the board at the time they received the bond, established an apparent implied authority, from the sureties to the board, to fill the blank Avith such penal sum as they deemed sufficient and proper.
It is stipulated, as facts in the case, that the sureties “did knoAV, Avhen they sigued and sealed the said instrument, that the same was intended by the said Young to be used [558]*558as the official bond of the said Young for his term, commencing March 1, 1872; and they severally signed and sealed the same as and for such his official bond; and, at the time of signing and sealing said instrument, the said sureties intended to be bound that said Young, as such treasurer, should perform the condition thereof.” The instrument was fully completed, except the insertion of the penal sum. It is evident that the sureties neither stipulated nor expected that the instrument would be returned or afterwards exhibited to them, before its delivery for use. When the bond was presented to the board, they had a right to presume the existence of the facts thus stipulated. The board would also have a right to presume (certainly, in the absence of something affirmative to show the contrary) that the signers knew the contents of the bond when they executed it; also, that they knew the requirements of the law, to wit, that the instrument, to bo a complete bond, must contain a penal sum, and that the amount thereof had to be fixed by the board. This was the apparent and presumptive state of facts, as they appeared to the board when the instrument was presented them for their official action.
Now what did these facts imply, and what had the board a right to presume that they implied ? Why, clearly this : “We (the sureties) have executed this instrument as the official bond of Young. We intend it to be used and delivered as such; but, inasmuch as we do not know at what amount you will fix the penal sum which the law requires you to fix, we have left this blank, which you can fill Avith such sum as you may determine.” We think all the circumstances, fairly considered, imply all this almost as clearly as if expressed in Avords. The nature of the blank to be filled, also, was calculated to raise a presumption of implied authority to fill it. The condition of a bond is the essential feature of it. The penal sum is, in a certain sense, almost a matter of form. In this case, the sureties intended to execute a bond to secure the state from loss by [559]*559.any default of Young. This was the whole substance of their agreement. No penal sum, however large, could extend this liability. The insertion, therefore, of a penal sum, operated simply to perfect the bond according to the original understanding of the signers, Avithout injuriously affecting them, or in any manner changing the contract from what they intended it to be. It was in one sense, therefore, Avholly immaterial to them Avhat the penal sum should be. The nature of the blank itself Avas, therefore, a circumstance or fact that tended to shoAV an implied authority to the board to fill it. Cases are to be found in the books Avhere implied authority to fill blanks has been held to exist, Avithout any evidence of assent on the part of the maker beyond the instrument itself. We think, therefore, that all these facts and circumstances clearly implied an authoritj' to the board to insert a penal sum in this blank, AA'hich authorized them to act m the matter by so filling it.
It is urged by defendants that this authority could not be implied, because the sureties did not in fact knoAV of the existence of the blank. It. is undoubtedly true that in most, if not all, of the cases cited it does appear that the parties .signing the instrument actually knew of the existence of the blank ; and the kuoAvledge of that fact, at the time an instrument is delivered for use, being a strong circumstance tending to establish an implied authority to the other parly to fill the blank, it is undoubtedly true that the courts lnwo, in such cases, put great stress upon this circumstance. But Ave find no case expressly holding that actual knowledge of the existence of the blank is indispensable, and Avithout which authority can never be implied. The correct rule seems to be that this authority aatII be implied whenever it is fairly and legally inferrible from all the circumstances of the particular case under consideration. Moreover, in this case, as Ave have already said, the board had a right to presume that the sureties knew of the existence of this [560]*560blank, and, in view of this and all the other circumstances-of the case, there ivas an apparent implied authority to the' board, upon which they had a right to act, and, having thus-acted, the sureties cannot now be heard to say that they did not know of the existence of the blank. In other words, they are now estopped from denying the existence of the apparent and presumptive state of facts which they,' by their conduct, have authorized the board to believe and act upon; and now the apparent authority with which- they clothed the board must be held to be the real authority.
As to when authority to fill blanks in written instruments will be implied from circumstances, see Inhabitants of South Berwick v. Huntress, 53 Me. 89 ; Hunt v. Adams, 6 Mass. 519.
It is further urged that the bond in question is void, because it ivas signed and sealed on Sunday.
It will be noticed that, although actually signed on Sunday, it bears date on Monday ; that it was not delivered to nor accepted by the board until Thursday ; that, when presented to and accepted by the board, they were not aware of the fact that it had been signed on Sunday. The mere statement of these facts is, we-think,, a sufficient answer to the point made by defendants. The- objection is not well taken for two reasons: First. The sureties having, by their own act in dating the bond on Monday, represented to the board that it was in fact executed on that day, and they, in reliance upon that representation, having acted upon it, and accepted the bond, and allowed Young to enter upon the duties of his office, the sureties are- now estopped from denying the truth of such representation,, or slioAving that it Avas executed upon Sunday instead of the day it bears date. BigeloAV on Estoppel, 480 et seq.; Vinton v. Peck, 14 Mich. 287. Second. It is- almost an elementary principle, laid doAvn in all the books, that a bond is not “executed” until it is delivered, for delivery is of the essence of a deed.. It takes- effect only from execution, on [561]*561delivery, and, until delivery, it is not a contract, and is of no further value than the paper upon which it is written. This bond not having been delivered until the following Thursday, the mere signing of it on Sunday does not affect its validity. In the proper and legal sense of the term, it. was not “ executed” on Sunday, but on Thursday. Com. v. Kendig, 2 Penn. St. 448 ; Bloxsome v. Williams, 3 B. & C. 232 ; Lovejoy v. Whipple, 18 Vt. 379 ; Clough v. Davis, 9 N. H. 500 ; Hill v. Dunham, 7 Gray, 543; Pierce v. Richardson, 37 N. H. 306. The fact that everything that was done by the sureties in reference to the bond was done on Sunday, does not affect the validity of the implied authority to the board to fill the blank. This authority was implied from a continuing state of facts, which still continued to exist on the day when the board filled the blank and accepted the bond. Therefore the original authority was renewed or continued on each succeeding secular day on which such state of facts was permitted by the sureties to continue to exist.
We are therefore of opinion that the instrument declared on in this case was a valid bond. But we are also of opinion that its obligation does not, as to the sureties, extend to moneys collected by the principal, Young, on account of purchase-money of school and university lands.
' It was a general county treasurer’s bond, given'in accordance with the provisions of Gen. St. c. 8, § 126. While the condition of such a bond is, perhaps, broad enough in its terms to include proceeds of the sales of school and university lands that may be collected by a county treasurer, yet it must be read as relating only to those moneys which are treated of in the same connection — that is, moneys which a county treasurer is authorized to collect as county treasurer. This is all that the parties to the bond can be considered as having in view in executing it. It is all that the county board could take into account in fixing the amount of the bond, or in determining its sufficiency.
[562]*562The management of school and university lands is, by Gen. St. c. 38, entrusted to a separate department of the state government, the head of which is called commissioner of the land office. , And although certain county officers, as, for example, county treasurers, are brought into connection with the land department, and, under certain circumstances, are required to perform certain duties, still such duties are entirely distinct from the ordinary duties of the .offices which they hold. The office of county treasurer, and the office of collector of purchase-money of school and university lands, although filled by the same person, are in reality two distinct offices. Although the sanie person must perform the duties of both offices, he is required to give separate bonds. The duties in each case are entirely distinct. The conditions of the two bonds are different. For the special duties imposed upon a county treasurer by Gen. St. c. 38, only his sureties on the separate bond required by section 39 are answerable. This bond is in no sense merely cumulative, or intended as additional security. Therefore the sureties on the general bond of a county treasurer are not liable for his failure to pay over moneys collected by him on account of school and universitj'' lands, under the provisions of Gen. St. c. 38. State v. Johnson, 55 Mo. 80.
The judgment of the court below must, therefore, be reversed, and judgment entered in this court, in favor of the plaintiff against all the defendants, for that part of the money claimed by the state which was collected and received by Young, as county treasurer, from taxes levied for state purposes, and also that collected by him for special liquor licenses, under Laws 1873, c. 10, amounting in all to the sum of $3,484.22, with interest thereon from December 23, 1873, and a penalty of 10 per cent, thereon, together with costs of both courts.
Ordered accordingly.