STORY, Circuit Justice.
It has been intimated at the bar, that the demurrer by mistake extends to the sixth count, and therefore I pass over all observations as to that count, for - it is clear that so far the demurrer cannot be sustained. And before proceeding to the principal point in controversy, it may be well to dispose of some other objections spread upon the record, as causes of special demurrer. One of these is, that there is no profert of the condition of the writing obligatory, although it is set forth in the declaration. To this it is a sufficient answer, that when a [1279]*1279profert is made of any such instrument, the whole is before the court, and it is unnecessary to make a separate profert of the condition. If the defendant wishes oyer of the whole instrument, he may pray it; but oyer of the obligatory part is not oyer of the condition; each must be prayed for, if each is wanted. Another objection is to the want of particularity in the statement of the certificate, and in what respects it is false and fraudulent. It appears to me, that it would have been more correct to have stated, generally, that the mutilation of the instrument was occasioned by fraud and imposition prac-tised upon the collector of Bristol, leaving the special facts to be made out in evidence. And it may be, that the averment is not sufficiently pointed and exact in its present terms, at least in not stating the party, by whom the false certificate was produced. But this is the less necessary to be considered, because, if upon the merits of the more general question, the United States are entitled to relief, the court would not find any difficulty in granting leave to amend. The question therefore, to which the opinion of the court will address itself, is, whether any suit can be maintained at law upon an instrument mutilated like the present, where that mutilation has been produced by fraud and imposition, practised upon a public officer in the discharge of a public duty by a party bound by the instrument.
The bonds given in the present case are the customary-bonds required by law^Act March 2, 1799, c. 128, § 75 [1 Story’s Laws, 636; 1 Stat. 680, c. 22], et seq., and particularly section 81) to be given upon the exportation of merchandise, entitled to drawback, in order to enable the party to obtain the common debenture. Certain proofs are required to be produced to the collector of the port of the fact of relanding the merchandise in a foreign country, upon the production of which the bonds may be cancelled. The law, of course, supposes the certificates and proofs to be genuine, and not fraudulent, and upon this presumption, and this only, authorises a cancellation of the bonds. If the cancellation be by mistake or fraud, the collector is acting beyond the authority confided to him by law, and his act cannot bind the government. But I should be sorry, that it should be supposed, that there is any principle applicable' to this case, which would not equally apply to suits between private citizens. Nothing is more clear than that deeds procured by fraud are void, and may be set aside on non est factum pleaded, upon due proof of the fraud (Thompson v. Rock, 4 Maule & S. 338; Skip v. Huey, 3 Atk. 91, 93; Com. Dig. “Fait,” B, 2; Shep. Touch. 60); and grants of the government are not, in this respect distinguishable from those of individuals (Com. Dig. “Grant” G, 8, 9). It would seem to follow as a natural conclusion from this doctrine, that deeds cancelled by fraud and imposition are to be considered as still existing and in full force. If a deed be avoided by fraud in its concoction, it would seem almost absurd to say, that after its legal execution it should be destroyed by fraud practised upon the obligee.
The old cases proceeded upon a very narrow ground. It seems to have been held, that a material alteration of a deed by a stranger, without the privity of either obligor or obligee, avoided the deed; and by parity of reasoning the destruction or tearing off the seal either by' a stranger or by accident. Pigot’s Case, 11 Coke, 27; 1 Rolle, 39; 1 Rolle, Abr. “Fait,” X, 1-3; Perk. §§ 135, 136; and cases cited in Cutts v. U. S. [Case No. 3,522]; Com. Dig. “Fait,” F, 2; Mathewson’s Case, 5 Coke, 23; Dyer, 59, and note 12; Shep. Touch. 67. A doctrine so repugnant to common sense and justice, which inflicts on an innocent party all the losses occasioned by mistake, by accident, by the wrongful acts of third persons, or by the providence ofi Heaven, ought to have the unequivocal support of unbroken authority, before a court of law is bound to surrender its judgment to what deserves no better name than a technical quibble. It appears to me to be shaken to its very foundation in modern times; and every ease, which upholds a remedy at law, where the deed is lost by time and accident is decisive against it. The case of Read v. Brookman, 3 Term B. 151 (and see Bolton v. Bishop of Carlisle, 2 H. Bl. 259), is directly in point, and is reasoned out by Lord Kenyon with vast force and ability, upon principles of eternal justice. Mr. Justice Buller, in Master v. Miller, 4 Term B. 320, 339 (and see Waugh v. Bussell, 5 Taunt 707; Totty v. Nesbitt; and Matison v. Atkinson, cited in 3 Term E. 153, note c; Henfree v. Bromley, 6 East, 309), said, and he is a great authority, “It is not universally true, that a deed is destroyed by an alteration, or by the tearing off the seal. In Palmer, 403, a deed which had erasures in it, and from which the seal was torn, was held good, it appearing, that the seal was tom off by a little boy. So in any case, where the seal is torn off by accident, after plea pleaded, as appears by the cases quoted by the plaintiff’s counsel. And in these days I think, even if the seal were tom off before the action brought, there would be no difficulty in framing a declaration, which would obviate every doubt upon that point by stating the truth of the case. The difficulty, which arose in "the old cases, depended very much on the technical forms of pleading, applicable to deeds alone. The plaintiff made a profert of the deed under seal, which he still must do, unless he can allege a sufficient ground for excusing it When that is done, the deed or the profert must agree with that stated in the declaration, or the plaintiff fails. But the profert of a deed without a seal will not support an allegation of a deed with a seal.” There is so much sound sense and legal propriety in this doctrine, that one is persuasively urged [1280]*1280to adopt it, and it stands supported by the authority of other cases. But however this may be, it is clear that a divulsion of the seal by the obligor himself, or by his connivance, without the assent of the obligee, does not avoid the deed. Totty v. Nesbitt, 3 Term R. 153, note c; Shep. Touch. 67. And it has been so decided by this court. Cutts v. U. S. [supra]. And X have no hesitation in declaring, that if the seal is tom off with the assent of the obligee, either by mistake, or by fraud and imposition practised • by the -obligor, it may still be declared on as a deed, making the proper averment of the facts upon the proferí, and the party will be entitled to a recovery. The case of Matison v. Atkinson, cited in a note in 3 Term R. 153, fully supports this doctrine; and if it were of the first impression, I should not hesitate to adopt it Dealing with this case, therefore, as I am bound to do according to the admitted facts, I must take it to be a case, where the obligors to the bonds have procured the destruction of the seals by the obligee, not merely by a mistake of the facts, but by gross fraud and imposition. See, also, Perrott v. Perrott, 14 East, 423. We may readily see, how this doctrine stands in equity, from what fell from Lord Hardwicke in Skip v.
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STORY, Circuit Justice.
It has been intimated at the bar, that the demurrer by mistake extends to the sixth count, and therefore I pass over all observations as to that count, for - it is clear that so far the demurrer cannot be sustained. And before proceeding to the principal point in controversy, it may be well to dispose of some other objections spread upon the record, as causes of special demurrer. One of these is, that there is no profert of the condition of the writing obligatory, although it is set forth in the declaration. To this it is a sufficient answer, that when a [1279]*1279profert is made of any such instrument, the whole is before the court, and it is unnecessary to make a separate profert of the condition. If the defendant wishes oyer of the whole instrument, he may pray it; but oyer of the obligatory part is not oyer of the condition; each must be prayed for, if each is wanted. Another objection is to the want of particularity in the statement of the certificate, and in what respects it is false and fraudulent. It appears to me, that it would have been more correct to have stated, generally, that the mutilation of the instrument was occasioned by fraud and imposition prac-tised upon the collector of Bristol, leaving the special facts to be made out in evidence. And it may be, that the averment is not sufficiently pointed and exact in its present terms, at least in not stating the party, by whom the false certificate was produced. But this is the less necessary to be considered, because, if upon the merits of the more general question, the United States are entitled to relief, the court would not find any difficulty in granting leave to amend. The question therefore, to which the opinion of the court will address itself, is, whether any suit can be maintained at law upon an instrument mutilated like the present, where that mutilation has been produced by fraud and imposition, practised upon a public officer in the discharge of a public duty by a party bound by the instrument.
The bonds given in the present case are the customary-bonds required by law^Act March 2, 1799, c. 128, § 75 [1 Story’s Laws, 636; 1 Stat. 680, c. 22], et seq., and particularly section 81) to be given upon the exportation of merchandise, entitled to drawback, in order to enable the party to obtain the common debenture. Certain proofs are required to be produced to the collector of the port of the fact of relanding the merchandise in a foreign country, upon the production of which the bonds may be cancelled. The law, of course, supposes the certificates and proofs to be genuine, and not fraudulent, and upon this presumption, and this only, authorises a cancellation of the bonds. If the cancellation be by mistake or fraud, the collector is acting beyond the authority confided to him by law, and his act cannot bind the government. But I should be sorry, that it should be supposed, that there is any principle applicable' to this case, which would not equally apply to suits between private citizens. Nothing is more clear than that deeds procured by fraud are void, and may be set aside on non est factum pleaded, upon due proof of the fraud (Thompson v. Rock, 4 Maule & S. 338; Skip v. Huey, 3 Atk. 91, 93; Com. Dig. “Fait,” B, 2; Shep. Touch. 60); and grants of the government are not, in this respect distinguishable from those of individuals (Com. Dig. “Grant” G, 8, 9). It would seem to follow as a natural conclusion from this doctrine, that deeds cancelled by fraud and imposition are to be considered as still existing and in full force. If a deed be avoided by fraud in its concoction, it would seem almost absurd to say, that after its legal execution it should be destroyed by fraud practised upon the obligee.
The old cases proceeded upon a very narrow ground. It seems to have been held, that a material alteration of a deed by a stranger, without the privity of either obligor or obligee, avoided the deed; and by parity of reasoning the destruction or tearing off the seal either by' a stranger or by accident. Pigot’s Case, 11 Coke, 27; 1 Rolle, 39; 1 Rolle, Abr. “Fait,” X, 1-3; Perk. §§ 135, 136; and cases cited in Cutts v. U. S. [Case No. 3,522]; Com. Dig. “Fait,” F, 2; Mathewson’s Case, 5 Coke, 23; Dyer, 59, and note 12; Shep. Touch. 67. A doctrine so repugnant to common sense and justice, which inflicts on an innocent party all the losses occasioned by mistake, by accident, by the wrongful acts of third persons, or by the providence ofi Heaven, ought to have the unequivocal support of unbroken authority, before a court of law is bound to surrender its judgment to what deserves no better name than a technical quibble. It appears to me to be shaken to its very foundation in modern times; and every ease, which upholds a remedy at law, where the deed is lost by time and accident is decisive against it. The case of Read v. Brookman, 3 Term B. 151 (and see Bolton v. Bishop of Carlisle, 2 H. Bl. 259), is directly in point, and is reasoned out by Lord Kenyon with vast force and ability, upon principles of eternal justice. Mr. Justice Buller, in Master v. Miller, 4 Term B. 320, 339 (and see Waugh v. Bussell, 5 Taunt 707; Totty v. Nesbitt; and Matison v. Atkinson, cited in 3 Term E. 153, note c; Henfree v. Bromley, 6 East, 309), said, and he is a great authority, “It is not universally true, that a deed is destroyed by an alteration, or by the tearing off the seal. In Palmer, 403, a deed which had erasures in it, and from which the seal was torn, was held good, it appearing, that the seal was tom off by a little boy. So in any case, where the seal is torn off by accident, after plea pleaded, as appears by the cases quoted by the plaintiff’s counsel. And in these days I think, even if the seal were tom off before the action brought, there would be no difficulty in framing a declaration, which would obviate every doubt upon that point by stating the truth of the case. The difficulty, which arose in "the old cases, depended very much on the technical forms of pleading, applicable to deeds alone. The plaintiff made a profert of the deed under seal, which he still must do, unless he can allege a sufficient ground for excusing it When that is done, the deed or the profert must agree with that stated in the declaration, or the plaintiff fails. But the profert of a deed without a seal will not support an allegation of a deed with a seal.” There is so much sound sense and legal propriety in this doctrine, that one is persuasively urged [1280]*1280to adopt it, and it stands supported by the authority of other cases. But however this may be, it is clear that a divulsion of the seal by the obligor himself, or by his connivance, without the assent of the obligee, does not avoid the deed. Totty v. Nesbitt, 3 Term R. 153, note c; Shep. Touch. 67. And it has been so decided by this court. Cutts v. U. S. [supra]. And X have no hesitation in declaring, that if the seal is tom off with the assent of the obligee, either by mistake, or by fraud and imposition practised • by the -obligor, it may still be declared on as a deed, making the proper averment of the facts upon the proferí, and the party will be entitled to a recovery. The case of Matison v. Atkinson, cited in a note in 3 Term R. 153, fully supports this doctrine; and if it were of the first impression, I should not hesitate to adopt it Dealing with this case, therefore, as I am bound to do according to the admitted facts, I must take it to be a case, where the obligors to the bonds have procured the destruction of the seals by the obligee, not merely by a mistake of the facts, but by gross fraud and imposition. See, also, Perrott v. Perrott, 14 East, 423. We may readily see, how this doctrine stands in equity, from what fell from Lord Hardwicke in Skip v. Huey, 3 Atk. 91, 93, whose language meets the present case in its material features. “There are many cases,” says his lordship, “where equity will set up debts extinguished at law against a surety, as well as against a principal; as where a bond is burnt or cancelled by accident or mistake, and much stronger, if a principal procure the bond to be delivered up by fraud, in such a case the court would certainly set it up, because he shall not avail himself of the. fraud of any of the debtors.” Now it appears to me clear, that the doctrine is the same at law as in equity in this respect, whenever, from the nature of its proceedings, a court of law can administer relief.
And this leads me, to what has been the principal objection urged at the bar, viz. that the proper remedy in this case is in equity, and not at law. That effectual relief might be administered, in a case like the present, in equity cannot be doubted (1 Ves. 387, 392, 393. See Atkins v. Farr, 2 Eq. Cas. Abr. 247, 1 Atk. 287, pl. 155; Anon., 2 Atk. 61; Ex parte Greenway, 6 Ves. 812); and it is as certain, that until a comparatively recent period it was supposed, that the remedy was exclusively in equity. Such was certainly the supposition of Lord Hardwicke, as appears in Whitfield v. Fausset, 1 Madd. Ch. Prac. 22, 23 [1 Ves. Sr. 387]; East India Co. v. Donald, 9 Ves. 275; and something of the same lurking doubt of the jurisdiction at law yet lingers in the court of chancery. Ex parte Greenway, 6 Ves. 812; East India Co. v. Boddam, 9 Ves. 464. But whatever difficulties there may have been in the original question, it is now so firmly established, that a remedy exists at law on a bond lost by time and accident, and by parity of reasoning, on a bond destroyed or cancelled by fraud, that it is too late to disturb it. It must be admitted, that the jurisdiction in equity is in general more salutary and less, liable to abuse; .but the reasoning, that en-deavours to establish a concurrent jurisdiction at law, is extremely cogent, and impressive. Read v. Brookman, 3 Term R_ 151. I content myself therefore with holding the law' on this subject, as I find it, not meaning to doubt, that it would have been equally competent for this court to have sustained a suit for relief on the equity side of its jurisdiction.
A suggestion has been thown out at the bar of the insufficiency of the breach assigned in the declaration. But it appears to me, that this objection is unfounded, for the breach is a direct negative in the very words of the condition. It is certainly good, according to the current of authorities. Heyford v. Reve, Yel. 40; Com. Dig. “Pleader,” 0, 45; Procter v. Burdet, 3 Lev. 170; Lee v. Johnson, 1 Lutw. p. 115, pl. 326-329. Leave is given to the plaintiff to amend, and to the defendant to withdraw his demurrer, as it is now too broad.