Martin v. Thomas ex rel. Rogers — 65 U.S. 315

Majority — McLEAN J.

p. 315

John T. Martin, Andrew Proudfit, and John Keefe, Plaintiffs in Error, v. William H. Thomas and Robert A. Baker, Administrators of Major J. Thomas, deceased, use of George T. Rogers.

Syllabus

Where- there was an action of replevin in Wisconsin, by virtue of which the property was seized by the marshal, and a bond was given by the defendant in replevin, together with sureties, the object of which was to obtain the return of the property to the defendant; which bond was afterwards altered, by the principal defendant’s erasing his name from the bond, with the knowledge and consent of the marshal but without the knowledge or consent of the sureties, the bond was thereby rendered invalid against the sureties.

This case was brought up by writ of error'from the District Court of the United States for the district of Wisconsin.

The facts of the case are stated in the opinion of the court.

It was ai’gued by Mr. Doolittle and Mr. Ewing for the plaintiffs in error, and by Mr. Severely Johnson, upon a brief'filed by himself and Mr. Hopkins, for the defendants.

The counsel for the plaintiffs in error made the following points:

I. The bond- upon which judgment was recovered was invalid as against the defendants, because.after the satne was' executed by them as sureties, Remington, their principál, without their knowledge: or consent,, and with the consent of the marshal, erased his name from the bond.

Hunt’s Adm. v. Adams, 6 Mass., 521 . '

Speake et al. v. U.. S'., 9 Cranch, 35 , ■

Miller v. Stewart,. 9 Wheaton, 702, 703.

II. After the execution of’the bond by the defendants to be' delivered to the marshal, it- was refused and- disagreed to by him', and it thereby became void. Any subsequent alteration would .create a new deed, requiring a new execution, or positive assent to-the same, to give it validity against the defendants.

O’Neale v. Long,- 4 Cranch, 60 , 62.-

See Sheppard’s Touchstone, 70, 394,-as to the effect of disagreement.

p. 316

TTT. There was no breach of the condition of the bond.

The obligors undertook to deliver the property in question to the marshal, if such delivery were adjudged, and to pay him such sum as might for any cause be recovered, against the defendants, Henry W. Remington and John T. Martin, jün.

The return of the property was not adjudged, and there was no recovery of any sum of money against the defendants. The recovery was against one only.

See Miller v. Stewart, 9 Wheaton, 702, 703, and the cases ' ’ . cited..

The counsel for the defendants in error maintained that the alterations of the bond were immaterial, and cited:

15 John., 293 ; 1 Wend.,'659; 10 Conn., 192 .

18 Pick'., 172; 5 Mass., 538 ;. 2 Barb. Ch’y. R.* 119.

16 N. T. Rep., 439; 3 Comsk. R., 188.

1 Greenleaf, (Maine Rep.,) Hale v. Russ.'

1 Coke’s Rep., 60. .

delivered the opinion of the court.

This is a writ of error to the district court of the United States for the district of Wisconsin.

The action was replevin; the pleadings being, filed, a jury was called, who rendered a verdict in damagés for nine thou- " sand seven ‘hundred and eighty dollars and ninety-six cents, with costs.

In the course of the trial a bill of exceptions was filed, on which the questions of law were raised. Be it remembered,, that at the trial of-the above-entitled action, the plaintiff produced au instrument in writing in the words and figures, and with interlineations and erasures following, to wit:

Know all men by these presents, that we and John T. Mar- ■ tin, and John Keefe, and Andrew Proudfit, are held and firmly bound unto Major J. Thomas, marshal of the United States for the Wisconsin district, in the sum of twenty thousand dollars, to be paid, &c.

Whereas the defendants have required the return of property replevied by the marshal, at the suit of George T. Rogers against Henry M. Remington and John T. Martin, jun.; now,

p. 317

the condition of this obligation is such, that if the said defendants in said suit shall deliver to the marshal said property, if such delivery b.e adjudged, and shall pay to him such sum as .may for any cause be recovered against the defendants, then this obligation to be void.

The bond upon which judgment was recovered was void, as against the.defendants, because, after the same was executed by them a.s sureties, Remington, their principal, without their knowledge or consent, and with the consent; of the marshal, erased his name from the bond.

In Miller v. Stuart, 9 Wheat., 702 , Mr. Justice Story said, nothing can be clearer, both upon principle and authority than the doctrine that the liability of a surety is not to be ex tended, by implication, beyond the terms of his contract. To the extent, and in the manner, and under the circumstances, pointed out in the obligation, he.is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may be for his benefit.' He has a right to stand upon the very terms of his contract; and if he doe.s not assent to any variation of it, and an alteration of' it is made, it is fatal.

Hunt’s Adm. v. Adams, 6 Mass., 521 .

2. After the execution of the bond by the defendants, to*be delivered to the marshal, it was refused and disagreed to by-him, and it thereby became void. Any-subsequent alteration would require a new deed or positive assent to the same, to make it valid against the defendants. .

Sheppard’s Touchstone, 70,. 394.

The judgment is reversed.