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"John Barnes, collector," &c." pursuant to the said SPEAKE "act of congress, but contrary thereto in this, viz. that & OTHERS "the said writing obligatory was not sealed or deliver"ed by the said Robert Ober until after the vessel in the U.STATES. "condition of the said writing obligatory mentioned "had received a clearance in due form from the said col- whether the consent be gil "lector, and after she had been allowed to depart and had ven before or "actually departed from the said port of Georgetown un- after the exe"der the clearance so as aforesaid granted to her, by rea"son whereof the said writing obligatory is void and of "no effect in law; and this, the said Defendants are "ready to verify wherefore they pray judgment if they "ought to be charged with the debt aforesaid by virtue "of the writing obligatory aforesaid.”

To this plea there was a general demurrer and joinder.

2d. Joint plea. That they ought not to be charged, &c." because they say that the said writing obligatory "was required and taken by one John Barnes," collector, &c. by color of his said office as collector and by "pretence of an act of congress," &c. (the act of 9th January, 1808) "which said writing obligatory and "the condition thereof were not taken by the said John "Barnes, collector as aforesaid, pursuant to the said "act of congress, but contrary thereto in this, to wit: "that the said writing obligatory was taken in a sum "more than double the value of the vessel and cargo in "the condition of the said writing obligatory mention"ed; by reason whereof the said writing obligatory be"came void and of no effect in law; and this, the "said Defendants are ready to verify; wherefore," &c.

To this plea also there was a general demurrer and joinder.

3d. Joint plea. The Defendants say that the Plaintiffs ought not to maintain their action against them, "bc"cause they say that on the 14th day of April, 1808, "at," &c. "the said writing obligatory was signed and "sealed by the said Defendants, Josias M. Speake, and "Robert Beverly and a certain Ebenezer Eliason and was "then and there delivered to one John Barnes," collector, &c. for the purpose of obtaining a clearance for "the vessel in the condition of the said writing obliga

cution of the




❝tory, mentioned under the authority of an act of con& OTHERS “gress, entitled," &c. (vol. 9, p. 10,) “ and the said "Defendants say that after the said writing obligatory U.STATES. “ was so executed and delivered as aforesaid, a clear"ance was granted in due form of law to the said ves"sel, and after she had departed from the port of "Georgetown, under the said clearance, and while the "said writing obligatory was in the custody and keep"ing of the said John Barnes," collector, &c. "the "said writing obligatory, by the authority, consent and "direction of the said John Barnes collector as afore❝ said, was materially altered and changed in this, to wit: that the name and seal of the said Ebenezer Eliason were cancelled and erased from the said "writing obligatory, and the name, signature and seal "of the said Defendant, Robert Ober substituted and "inserted therein, without the license, consent or au

thority of the said Defendant, Robert Beverly, where"by the said writing obligatory was of no force or ef"fect whatever as the joint deed of them, the said De"fendants, Josias M. Speake, Robert Beverly and Ro

bert Ober; and so the said Defendants say that the "writing obligatory is not their joint deed; and this they are ready to verify; wherefore they pray judgment if the United States ought to have or maintain their action aforesaid against them."


"That the said writing obligatory was so altered and changed," &c. with the assent and by the concur"rent license, direction and authority of all the said De"fendants and of the said Ebenezer Eliason, and not "without the license, consent and authority of the said "Josias M. Speake, Robert Beverly and Robert Ober in "manner and form," &c.

To this replication there was a general demurrer and joinder.

4th. Joint plea. This plea was exactly like the 3d, except that it did not aver that the substitution of Ober for Eliason was without the consent of any of the Defendants.

To this plea also there was a replication like that to SPEAKE the 3d plea and a general demurrer and joinder. & OTHERS


The Court below decided all the demurrers in favor U.STATES. of the United States. At the trial of the issues of fact, a bill of exceptions was taken by the Defendants, which stated that the attorney for the United States produced the bond in the declaration mentioned and proved its execution by the subscribing witness, who, being crossexamined by the counsel for the Defendants, testified, that the Defendants, Speake and Beverly, came to the collector's office and executed the bond, but the collector would not grant a clearance without another obligor, when the name of the Defendant, Ober, was mentioned by the other Defendants, but as he was then absent, they proposed that one Ebenezer Eliason should be added as the third obligor, and that he should sign and seal the obligation; but that a blank should be left in its body to be filled afterwards with the name of Eliason or Ober, and that it should remain in the possession of the collector for some time to give an opportunity to Ober to execute the same; and it was understood and agreed between the parties aforesaid, that upon the return of Ober, if he should execute the same, the name and seal of Eliason should be striken cut, and that of Ober should be signed in his stead, and that his name should be inserted in the body of the bond. Accordingly with this understanding, the bond was executed by Speake and Beverly in the forenoon, and in the afternoon of the same day by Eliason, in the absence of Speake and Beverly, but upon the condition agreed upon between the collector and himself and Speake and Beverly, that his name should be erased from the bond, upon Ober's executing the same. After the bond was so executed, a clearance was granted, and after the vessel had sailed, the Defendant, Ober, came to the office and executed the bond, and the blank in the body of the bond was filled with his name when that of Eliason, with his seal, was erased; at which time neither Speake nor Beverly was present, nor had they given any assent to the said transaction other than what had taken place at the time of their execution of the bond. The witness farther testified that it appeared from the papers in the collectors office, that Speake was the sole owner of the vessel, and resided in Washington county,

SPEAKE in the district of Columbia, and that Beverly and Ober & OTHERS were the owners and shippers of the cargo.


Whereupon the counsel for the Defendants prayed the Court to instruct the jury, that if they should believe that the bond aforesaid was executed and erased at the periods and under the circumstances stated by the witness on his cross-examination, and that at the time of such execution, Speake was the sole owner of the vessel, and the other Defendants, Beverly and Ober, the owners and shippers of the cargo, th y ought to find the issues for the Defendants on the joint and several pleas of non est factum; which instruction the Court refused to give as prayed; but at the instance of the attorney of the United States, instructed them, that if they should find from the evidence that the erasure of the signature and seal of Eliason and the substitution of the signatureand seal of Ober, and the insertion of his name in the body of the obligation, was done with the assent and in pursuance of the request and agreement of all the parties to the bond, expressed and well understood at the time they respectively executed the same, then the jury ought to find all the issues of non est factum, joined in this cause, for the United States. notwithstanding it should appear that such alteration of the bond was not made till after the vessel had cleared out and sailed from Georgetown. To which refusal and instruction the Defendants excepted, and brought their writ of error.

SWANN and C. LEE, for the Plaintiffs in error.

1. As to the first joint plea, that the bond was not executed by Ober, until after the vessel had sailed.

The collector was bound to take the bond before the sailing of the vessel. When an officer is authorized by law to do an act he can only do it as the law requires. The law must be construed strictly, and strictly pursned.-3 Call. 421. If the defect had appeared upon the face of the bond this case would be clearly in our favor. Our case is analagous to that of a sheriff who may take bail before the return of the writ, but not afterwards. 2 Chitty's pleading, 478. So in the case of a sheriffs bond in England, if not taken according to the statute it is void-2 Saund. 60. After the departure of the ves

sel the power of the collector to take the bond ceased SPEAKE The cases all show that such an averment may be made. & OTHERS 1 Lord Ray. 349, Pullein v. Benson. 2 Wils. 347, Col- v. lins v. Blantern.

to the 2d joint plea.
taken in only double
If the officer requires

2. The same argument applies The law authorizes a bond to be the value of the vessel and cargo. a bond in a larger sum, he exceeds his authority and the bond is void.

3d. The third joint plea and the bill of exceptions, present a question of great importance; shall a parol agreement authorize an officer to make a material alteration in a sealed instrument? The consequences of such a doctrine would be most dangerous. If one party can be thus substituted for another, why may not the sum be altered? Why not the whole instrument be changed? Why may it not be discharged by parol? Why may not an entirely different contract be substituted. It is in direct hostility to the rule of law that a sealed contract cannot be denied, nor varied, nor discharged by parol. The bond was not delivered as an escrow. It was delivered to the only agent of the United States authorized to receive it. It then became completely executed. No material alteration could be made even by the consent of all the parties, if that consent was evidenced merely by parol. Even if it had been expressly delivered as an escrow, yet if delivered to the collector, it could not be as an escrow. A bond cannot be delivered to the oligee as an escrow. Riddle v. Moss, ante, vol. 5. p. 351.

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By the delivery it became absolute and binding upon all the parties. A discharge of one was the discharge of all. 9 Co. 137, Thoroughgood's case. Co. 27, Henry Pigot's case. It is of no consequence whether the name of Eliason were material or not. An immaterial alteration by the obligee avoids the bond. No parol understanding or agreement of the parties can prevent a material alteration from making the deed void. Cro. Eliz. 627, Markham v. Gonaston. The replication admits the erasure and alteration, but relies on the fact that it was done by the consent of all the parties. No subsequent parol consent can vary a written instrument under seal. There would be no safety if such a docVOL. IX.




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