A bond taken by virtue of the first section of the Embargo Law
of January 9, 1808, is not void, although taken by consent of
parties after the vessel had sailed.
The obligors are estopped to deny that the penalty of such a
bond is double the true value of the vessel and cargo.
The name of an obligor may be erased from a bond and a new
obligor inserted by consent of all the parties without making the
bond void; such consent may be proved by parol evidence, and it is
immaterial whether the consent be given before or after the
execution of the deed.
On the plea of
non est factum, the present validity of
the deed is in issue, and every circumstance that goes to show that
it is not the deed or contract of the party is provable by parol
evidence.
The fact that there is an erasure or interlineation apparent on
the face of the deed does not, of itself, avoid it; to produce this
effect, it must be shown to have been made under circumstances that
the law does not warrant; parol evidence is let in for this
purpose, and the mischief, if any, would equally press on both
sides.
Error to the Circuit Court for the District of Columbia in an
action of debt for $8,787 upon a bond dated 14 April, 1808, taken
by the collector of the port of Georgetown with condition to be
void if the brig
Active "should not proceed to any foreign
port or place, and the cargo should be relanded in some port of the
United States." The bond was executed by Speake, the master of the
vessel, and by Beverly and Ober, the owners of the cargo, in
compliance with the 1st section of the Act of Congress of 9
January, 1808, entitled "An act supplementary to the act entitled
An act laying an embargo on all ships and vessels in the ports
and harbors of the United States.'"
The defendants having pleaded severally sundry pleas upon which
issues in fact were joined, pleaded jointly (after oyer) 1st,
"That they ought not to be charged with the debts aforesaid by
virtue of the writing obligatory aforesaid, 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 as
aforesaid, and by pretense of an act of Congress entitled," &c.
(the Act of January 9, 1808, vol. 9, 10),
"which said writing obligatory and the condition thereof were
not taken by the said
Page 13 U. S. 29
John Barnes, collector, . . . pursuant to the said act of
Congress, but contrary thereto in this,
viz., that the
said writing obligatory was not sealed or delivered by the said
Robert Ober until after the vessel in the condition of the said
writing obligatory mentioned had received a clearance in due form
from the said collector and after she had been allowed to depart
and had actually departed from the said port of Georgetown under
the clearance so as aforesaid granted to her, by reason 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 pretense of an act of Congress,"
&c. (the Act of 9 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 mentioned; by reason whereof the said
writing obligatory became void and of no effect in law, and this
the said defendants are ready to verify, wherefore. . . ."
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
"because they say that on 14 April, 1808, at . . . 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
conditions of the said writing obligatory,
Page 13 U. S. 30
mentioned under the authority of an act of Congress entitled, .
. . and the said defendants say that after the said writing
obligatory was so executed and delivered as aforesaid, a clearance
was granted in due form of law to the said vessel, 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
keeping of the said John Barnes,"
collector, &c.,
"the said writing obligatory, by the authority, consent and
direction of the said John Barnes collector as aforesaid, 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 authority of the said defendant,
Robert Beverly, whereby the said writing obligatory was of no force
or effect whatever as the joint deed of them, the said defendants,
Josias M. Speake, Robert Beverly and Robert 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."
Replication.
"That the said writing obligatory was so altered and changed . .
. with the assent and by the concurrent license, direction and
authority of all the said defendants 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. . . ."
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.
Page 13 U. S. 31
To this plea also there was a replication like that to the 3d
plea and a general demurrer and joinder.
The court below decided all the demurrers in favor of the United
States. At the trial of the issues of fact, a bill of exceptions
was taken by the defendant 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
cross-examined 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 stricken
out 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 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
further 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,
Page 13 U. S. 32
in the District of Columbia, and that Beverly and Ober were the
owners and shippers of the cargo.
Whereupon the counsel for the defendants prayed the court to
instruct the jury that if it 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, they 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 it that if
it should find from the evidence that the erasure of the signature
and seal of Eliason and the substitution of the signature and 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.
Page 13 U. S. 34
STORY, J. delivered the opinion of the Court as follows:
This is an action of debt brought upon a bond given under the
first section of the Embargo Act of 9 January, 1808. After oyer of
the bond and condition, various pleas were pleaded by the
defendants, but it is unnecessary to consider any others than those
upon which questions have been argued at the bar.
The second separate plea of the defendant Robert Ober and the
first joint plea of all the defendants alleges in substance that
the bond was taken by the collector of the customs at Georgetown by
color of his office and by pretense of the act of Congress
aforesaid,
Page 13 U. S. 35
and that the bond and condition were not taken pursuant to the
act of Congress, but contrary thereto in this, to-wit, that the
bond was not sealed or delivered until after the vessel in the same
condition mentioned had received a clearance in due form, and after
she had actually departed from the port of Georgetown under the
clearance, by reason whereof the bond is void.
To this plea there was a general demurrer and joinder in
demurrer, on which the court below gave judgment for the United
States.
It is argued by the plaintiffs in error that the Act of Congress
of 9 January, 1808, sec. 1, having declared that no vessel licensed
for the coasting trade shall be allowed to depart from any port of
the United States or shall receive a clearance until the owner,
&c., shall give bond to the United States in a sum double the
value of the vessel and cargo, &c., the time of giving the bond
is of the essence of the provision, and that if the bond be not
taken until after the clearance or departure of the vessel, it is
illegal and void.
We cannot yield assent to this argument. In our opinion, the
statute, as to the time of taking the bond and granting a
clearance, is merely directory to the collector. It is undoubtedly
his duty to comply with the literal requirements of the statute. If
he neglect so to do, it is an irregularity which may subject him to
personal peril and responsibility. If the state of facts has
existed to which the statute provision is applicable, the authority
to require and the duty to give the bond attaches, and by the
voluntary consent of the parties it may well be given
nunc pro
tunc. Upon any other construction, the owner of the vessel
might be involved in great difficulties. If the collector be not
authorized to receive the bond after a clearance, neither is he
authorized to grant a clearance before he has received the bond. A
clearance, therefore, granted before such bond should be given
would be illegal and void, and a departure from port under such
void clearance would subject the owner, vessel, and cargo to the
forfeiture inflicted by the third section of the act. There is no
error in the judgment of the court below in this plea.
Page 13 U. S. 36
The second joint plea of the defendants alleges that the bond
was not taken pursuant to the act of Congress, but contrary
thereto, in this, that the bond was taken in a sum more than double
the value of the vessel and cargo, whereby the bond became void. On
demurrer to this plea and joinder in demurrer, the court below gave
judgment for the United States, and we are of opinion that the
judgment so given ought to be affirmed. There is no allegation or
pretense that the bond was unduly obtained by the collector,
colore officii, by fraud oppression or circumvention. It
must therefore be taken to have been a voluntary
bona fide
bond. The value was a matter of uncertainty, and the ascertaining
of that value was the joint act and duty of both parties. When once
that value was ascertained and agreed to by the parties and a bond
executed in conformity to such agreement, the parties were estopped
to deny that it was not the true value. If an issue had been taken
upon the fact, the evidence on the face of the bond would have been
conclusive to the jury, and if so it is not less conclusive upon
demurrer. It would be dangerous in the extreme to admit the parties
to avoid a sealed instrument by averring that there was an error in
the value by an innocent mistake, or by accident, or by
circumstances against which no human foresight could guard. A
mistake of one dollar would be as fatal as of ten thousand dollars.
Suppose the double value were underrated, could the United States
avoid the bond, and thereby subject the party to the penalties of
the third section? Where the law provides that the penal sum of a
bond shall be equal to the double value, and the parties
voluntarily and without fraud assent to the insertion of a given
sum, it is as much an estoppel as if the bond had specially recited
that such sum was the double value.
The third joint plea in substance alleges that after the
execution of the bond and after the clearance and departure of the
vessel and cargo, the bond was, by the authority, consent, and
direction of the collector, materially altered and changed in this,
that the name of Ebenezer Eliason was cancelled and erased from the
bond and the name, signature, and seal of the defendant Robert Ober
substituted and inserted therein without the license, consent, or
authority of the defendant
Page 13 U. S. 37
Robert Beverly, whereby the bond became of no force. To this
plea the United States replied that the bond was so altered and
changed with the assent and by the concurrent license, direction,
and authority of all the defendants and of the said Ebenezer
Eliason, and not without the license, consent, and authority of the
defendants, and prayed that the same might be inquired of by the
country. To this replication there was a general demurrer and
joinder in demurrer, on which the court below gave judgment for the
United States, and we are of opinion that the judgment was right.
It is clear, at the common law that an alteration or addition in a
deed, as by adding a new obligor, or an erasure in a deed, as by
striking out an old obligor, if done with the consent and
concurrence of all the parties to the deed, does not avoid it. And
this principle equally applies whether the alteration or erasure be
made in pursuance of an agreement and consent prior or subsequent
to the execution of the deed, and the cases in the books in which
erasures, interlineations, and alterations in deeds have been held
to avoid them will be found on examination to have been cases in
which no such consent had been given.
It has been objected that this principle of letting in parol
evidence to prove alterations in a deed to be made by consent
exposes to all the mischiefs against which the statute of frauds
was intended to guard the public. If this objection were valid, it
would equally apply to such alterations when made before the
execution of the deed, for if not taken notice of by a memorandum
on the deed itself, they must be proved in the same manner. But it
is to be considered that the parol evidence is not admitted to
explain or contradict the terms of the written contract, but only
to ascertain what those written terms are. On
non est
factum, the present validity of the deed or contract is in
issue, and every circumstance that goes to show that it is not the
deed or contract of the party is provable by parol evidence. It is
of necessity, therefore, that the other party should support it by
the same evidence. The fact that there is an erasure or
interlineation apparent on the face of the deed does not of itself
avoid it. To produce this effect, it must be shown to have been
made under circumstances that the law does not warrant. Parol
evidence
Page 13 U. S. 38
is let in for this purpose, and the mischief, if any, would
equally press on both sides. The principle, however, which has been
already stated is too firmly fixed to be shaken by any reasoning
ab inconvenienti.
The decision upon the third joint plea renders it unnecessary to
examine the bill of exceptions taken at the trial on the issue of
non est factum. That bill presents the same point as the
third joint plea, with this difference only -- that the alteration
in the deed by the addition of a new obligor was in fact made in
pursuance of an agreement entered into between the parties prior to
the original execution of the deed.
On the whole, the majority of the Court is of opinion that the
judgment of the court below must be
Affirmed.
LIVINGSTON, J.
In dissenting from the Court in its judgment on the issue of law
arising out of the third joint plea, I can only say that I am not
prepared to admit that every alteration whatever in a deed, after
its execution, for such is the extent of the opinion just given,
may be proved by parol testimony. After perfecting a deed in one
form, no material alteration should be set up unaccompanied by a
new delivery and a note or memorandum thereof; otherwise a bond,
which is proved by a subscribing witness to have been actually
given for only one hundred dollars may be converted into one for as
many thousand if the obligee can only produce a witness who will
say that he understood the obligor as assenting to it. The only
case which I have been able to find of those cited, such is the
difficulty of procuring books in this place, is the one in Levinz
11, 35, which establishes that after the delivery of a bond, a new
obligor may be added in this way -- not that the name of one may be
struck out and another substituted in his place. Without denying
the authority of the case, my answer to it is that such addition
might he of benefit, but could not injure the first set of
obligors, and therefore the court might feel less difficulty in
admitting such fact to be proved. It is therefore no interference
with this decision to say that no change whatever in a sealed
instrument after its execution which may increase the liability or
be in any way to the prejudice of the party whose deed it is (and
such
Page 13 U. S. 39
is the case here) should be palmed on him by parol testimony,
and so,
vice versa, that no alteration which may be in any
way injurious to the grantee or obligee should be set up by the
other party, but that the terms in which the deed is originally
executed should alone be binding until alterations are introduced
into it by the same solemnities which gave existence to the first.
Such, in my opinion, is the salutary rule of the common law, and
therefore I think that the judgment of the circuit court ought to
be reversed.
MR. CHIEF JUSTICE MARSHALL, was rather inclined to think that
the plea was good, which stated that the bond was given for more
than double the value of the vessel and cargo. If the bond was
given for more than double that value, he thought it was void in
law.
He should not however have intimated his opinion on this point
if a dissenting opinion had not been given on another point in the
cause, and his silence might have been construed into an assent to
the entire opinion of the Court as it had been delivered.
