People v. Brown

2 Doug. 9

Opinion

Goodwin, J.

delivered the opinion of the Court.

In the question presented in this case, two are in fact involved; — first, as to the validity of the bond under the plea of non est factum, in respect to those who signed it before the alteration made by the associate judges; and, second, its validity as to those who signed it afterwards.

1. First, then, as to the former: — The statute, (R. S. 1338, p. 45, §43,

*j requires that, “every sheriff elected shall execute to the people of this state, a bond, in such penal sum, and with such sufficient sureties, not less than three in number, as the judges of the circuit court shall direct and approve.” It seems, from the case, that the judges had not determined the amount of the penalty of the bond, until after it was prepared and signed by six of the obligors, and then, upon its being presented to them, instead of directing the penalty in the sum inserted in the bond, or approving it as drawn, which would be the same thing in effect, they altered it, reducing the amount of the penalty from $25,000 to $20,000. This was certainly a material alteration of it; and it cannot be said that a bond with a condition in penalty of $20,000, is the same with a bond in the penalty of $25,000. The alteration made it another and a different bond. It is such an alteration's if made after its execution by a party interested, would render it void. Pigot's case, 11 Coke, 27; Master v. Miller, 4 T. R. 320; Powell v. Divett, 15 East. 29; and Hunt v. Adams, 6 Mass. R. 519, are a few of the many cases deciding this point.

The judges were the officers of the law, appointed to determine as to the penalty and the sufficiency of the sureties, and they not approving the bond, but materially changing, before accepting and filing it, that which the six defendants executed was never delivered in contemplation of law, or had a legal existence, and the one which was approved and filed was not in fact their deed; consequently, as to them, has no validity. If they had assented to the alteration it would have been otherwise ; for then, when delivered, it would have been their deed. Speake v. United States, 9 Cranch, 28. The case of O’Neale v. Long, (4 Cranch, 60,) is analagous to the present. There a bond under somewhat similar circumstances was held void against the party signing before the alteration. It was where an appeal bond, being once rejected, another surety was inserted without consulting the former sureties.

It is insisted that the responsibility of the parties is not changed by the reduction of the amount of the penalty ; — that it is the condition which imposes the liability; and that the sureties are not prejudiced. Whether the sureties were prejudiced or not is wholly immaterial. Any alteration in the terms of their contract, by the parties to it, which changes their situation, without their consent, discharges them, when the contract has been actually made. Whether beneficial or not is for them, and them alone, to determine, — not for the other parties. They have the right to stand upon the terms of the contract; and, if varied without their consent, to say, non in hoc fcedus veni. Equally so, certainly, when the stipulations of their contract, after receiving their assent are varied by officers to whose approval it is required to be submitted before it is consummated.

It is argued that the bond was signed and sent to the judges by an agent of the defendants, with authority to alter it in this respect so as to meet their approval. No such facts appear in the case, and. certainly they cannot be implied from the fact that the approval of the judges was, by the law, required.

As to one of the six, (Love,) it appears from the case that he had a knowledge of the alteration, but as to any assent by him it is silent.

The position taken that, because the bond was filed, and remained in the proper office without any objection being made by the defendants in question, their consent is to be presumed, cannot be entertained. To whom should they make objection until sued ? They might suppose that they were not deemed liable, and that the bond was deemed sufficient without their names. Nay, it does not appear from the case that they were even informed of the alteration before the suit was brought.

2. A different question is presented as to the effect of the alteration upon the liability of the other seventeen obligors. They executed the bond, which it is to be observed is joint and several, as it is. Each has bound himself, in the penalty, to be void upon the performance by the sheriff of the condition. Can the fact, then, that other names appear in the body of the instrument, intended to be obligors, who never, after the alteration, executed it, and who therefore are not in fact parties to it, relieve them from its obligation? I know of no principle or case which would lead to such a conclusion. If, when they signed the bond, they had made it a condition that it should not be delivered until executed by the other parties whose names were inserted in it, and it was delivered to the principal or to an agent under this condition, a different question would be presented, — to wit: whether there were any legal and effectual delivery until the performance of the condition. The case of Cutter v. Whittemore, 10 Mass. 450, is in point. In that case an arbitration bond, drawn as the bond of three, was executed by two. The court held it valid as the bond of the two, remarking, “that if there had been any agreement or condition at the time, that it should not be delivered as their deed, unless the third person named as obligor should also execute it, this would show that it was only delivered as an escrow, and the defendant might have proved that fact under the plea of non est factum.” In Adams v. Bean, 12 Mass. 140, the same doctrine was held in a case where a lease to two lessees was written as if to be executed by both, but was executed by only one of them. In an action on a guaranty indorsed on the lease, the guarantor was held, — the jury finding that the lease was intended to be delivered to the plaintiff.

The case of Johnson v. Baker, 4 Barn. & Ald. 440, is in conformity with this view. There in an action of covenant, upon a special plea that the deed was delivered as an escrow, and on condition that it should not be delivered to the plaintiff, but be void unless executed by certain other creditors, the proof sustaining the plea, the deed was held void and the plaintiff not entitled to recover.

It is the opinion of this court, then, that as to the six defendants who signed the obligation before the alteration of the penalty by the associate judges of Berrien county, the bond is of no legal validity ; but that it is valid and binding upon the other seventeen who executed it afterwards.

Certified accordingly.

Vida R. S. 1846, p. 73, § 68.