Martin v. Thomas

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 argued by Mr. Doolittle and Mr. Ewing for the plaintiffs in error, and by Mr. Reverdy Johnson, upon a brief filed by himself and Mr. Hipkins, 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 same was executed by them as sureties, Remington, their principal, 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.

III. 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, jun.

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. Y. Rep., 439; 3 Comsk. R., 188.

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

1 Coke's Rep., 60.

Mr. Justice McLEAN delivered the opinion of the court.