and, on the final settlement, Holland and Newby's note of four hundred and twenty-five dollars was surrendered to them, some of Mulvany's accounts contracted during the delivery of the grain were charged off, and the balance was paid by a check, which was turned over to Mr. Gross and credited upon the note. The only controversy between the parties is as to what obligation Mulvany incurred with reference to the Gross note.

It is contended by counsel for the appellant that none resulted from his agreement to pay that paper. The contract is said to be within the statute of frauds, and therefore void. Such an agreement, however, has never been adjudged to be within the purview of these statutes. An agreement by a debtor to pay his creditor's obligation to a third party has never been regarded as a collateral promise, but wherever it is entered into upon a sufficient consideration and is accepted, by the party to whom the money is to be paid, it has always been deemed an original promise, and enforceable by the party who is entitled to its advantages. Thatcher v. Rockwell, 4 Colo. 375; Brown on the Statute of Frauds, Cap. on Guaranties.

There was ample consideration for Mulvany's agreement. Part of the purchase price of the oats was paid at the time the contract was made, and the oats themselves were subsequently delivered under the bill of sale. The subsequent performance would afford an ample consideration, and the agreement itself might be referred to for the purposes of determining what the convention was, although he never signed it. Cary v. McIntire, 7 Colo. 173.

The note and mortgage to Gross were clearly competent testimony, and the objections made to their introduction were untenable. These papers furnished strong corroborative testimony of the truth of Gross's narration of the occurrence between himself and Mulvany. Mulvany contended that he received the oats without knowledge of Gross's claim, and he sought to avoid the force and effect of his own agreement and the conversation which he had with

Gross, by stating that his only agreement was to pay any balance that might be left after paying all the other obligations named in the bill, and that the order of payment as expressed was purely an accidental one. The chattel mortgage, which was on record in the county covering this identical crop of oats, strongly tended to support the plaintiff's contention that he assented to the delivery of the oats to Mulvany only on Mulvany's promise to pay him the amount of the Holland and Newby obligation. It is hardly probable that a creditor holding ample security for the payment of his debt would consent to the sale of the chattels which were his sole security without some promise, which he deemed both equally binding and safe. The identity of the note, and the error in description, could only be shown by the production of the paper. Clearly, under all the circumstances, the objections to the introduction of these two instruments were not well taken. The contention that the verdict of the jury is unsupported by the testimony cannot prevail in this court. The case was tried and submitted to the jury under instructions which are not complained of. There is evidence enough in the case to support the verdict, and there is nothing to show that the jury were influenced by passion or prejudice. Under these circumstances their verdict upon the facts cannot be disturbed. Kinney v. Wood, 10 Colo. 270; Green v. Taney, 7 Colo. 278.

It is impossible to discover any error in the record that would warrant a reversal of the case, and the judgment of the court below is affirmed.

Affirmed.

E. W. CASE, APPELLANT, V. O. L. DANIELS, APPELLEE.

1. FORM OF APPEAL BOND.-It is not essential, in order to bind the obligors in an appeal bond, that it should be drawn in the specific form expressed in the statute; it is enough if the instrument substantially conforms to the statutory provisions.

2. LIABILITY OF SURETY IN APPEAL BOND.-The omission of the name of the surety from the face of an appeal bond and from its recitals does not release him from liability, where he signed the bond and justified as surety.

Appeal from County Court of El Paso County.

Mr. FRED BETTS, for appellant.

Mr. WALTER M. HATCH, for appellee.

BISSELL, J. In June 1888, the appellee, Daniels, brought an action against S. Y. Case before a justice of the peace in El Paso county, and recovered a judgment against him amounting to about one hundred and thirty-two dollars. The judgment debtor prayed an appeal to the county court, which was subsequently dismissed for reasons which it is unnecessary to state, and a procedendo issued. The present action was brought upon the bond given on the appeal taken to the county court, and resulted in a judgment against the appellant, E. W. Case, from which the present appeal was prosecuted.

In its general provisions the bond was executed according to the form prescribed by the statute. There was no material variance from the general statutory requirements, and it would be held sufficient in form to render the appellant liable according to its terms, unless the omission hereafter considered would operate to discharge him. It is not essential in order to bind the obligors that the bond be in the specific form expressed in the statute, but it is enough that the instrument substantially conforms to its provisions. This

has always been held adequate to make a binding obligation. Crane et al. v. Andrews et al., 10 Colo. 265; Schill v. Reisdorf, 88 Ill. 411.

the

The bond was incomplete in one particular, which it is insisted rendered it so absolutely defective as to entirely preclude a recovery. The instrument, as introduced in evidence, recites that" we, S. Y. Case, etc., are held, etc.; now, therefore, if the said S. Y. Case shall etc., the obligation to be void otherwise to remain in full force." It is thus evident that upon the face of the instrument, and in its recitals, the name of the appellant and surety was not inserted. But it appears that E. W. Case signed the bond, and he deposed in the form provided for this class of obligations,-that he was a householder and freeholder,-resided in Colorado Springs and was worth double the amount of the penalty of the bond, and he likewise acknowledged that the instrument was subscribed by him as his free act and deed for the uses and purposes therein set forth. The judgment was stayed upon bond, and the appeal was prosecuted until it was dismissed by the county court, to which the appeal had been taken. No good reason can be given for releasing the surety, Case, from the obligation which he assumed. According to the course of all the authorities this would be a good common law instrument, binding upon all persons who had signed and sealed it according to its terms and conditions. That this is a statutory instrument ought not, in the law, to absolve the surety from the contract into which he entered, unless there be found within the enactment some mandatory provision from which there is no escape. There is nothing in the statute which necessitates this conclusion; according to its terms it is only necessary that the bond be in substantial conformity to the prescribed form. The technical objection should not avail to discharge a contract into which a party has voluntarily entered. In a well considered case in Illinois, Neil v. Morgan et al., 28 Ill. 524, under a statute similar to the one which prevails in Colorado, it was expressly adjudicated that neither the omission of a name nor a mistake in it would

operate to relieve a bondsman from liability, when it appeared that he was the individual who had affixed his name to the obligation. The decision is in harmony with antecedent adjudications upon similar questions, and results in the enforcement of no obligation except that into which a party has voluntarily entered, and it must meet with the approval of the courts. Finding no error in the record the judgment must be affirmed.

Affirmed.

WILMOT BLAKESLEE, PLAINTIFF IN ERROR, V. JAMES K. DYE, DEFENDANT IN ERROR.

AUTHENTICATION OF WRIT TO TAKE DEPOSITION.-A dedimus issued by a court of record to take the deposition of a witness to be used on the trial of a cause is a writ, and must be authenticated by the officer issuing it by the seal of the court, like other writs. Without such authentication the writ is a nullity, and a deposition taken under it is inadmissible in evidence.

Error to County Court of Otero County.

Mr. JAMES HOFFMIRE, for plaintiff in error.

Mr. A. F. THOMPSON, for defendant in error.

BISSELL, J. Dye brought this action against Blakeslee, before a justice in Otero county, to recover one hundred and twenty-five dollars, which he claimed as a commission upon the sale of certain property belonging to Blakeslee. After a trial before the justice an appeal was taken to the county court, where the action was tried by a jury, which found a verdict of fifty dollars in favor of the plaintiff, on which the judgment was entered whereon error is assigned. During the progress of the litigation in the county court, the plaintiff, Dye, sued out a dedimus to take the testimony of