Speake v. United States

Absent. TODD, J. ERROR to the Circuit Court for the district of Columbia, in an action of debt for 8787 dollars upon a bond dated 14th 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 re-landed 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 the 9th of 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.' Vol. 9, p. 10. 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 pretence of an act of congress, entitled,' &c. (the act of January 9th, 1808, vol. 9, p. 10,) 'which said writing obligatory and the condition thereof were not taken by the said John Barnes, collector,' &c. 'pursuant to the said act of cougress, 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 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 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.' &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, 'because 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 conditions of the said writing obligatory, mentioned under the authority of an act of congress, entitled,' &c. (vol. 9, p. 10,) '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,' &c. '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,' &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 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 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 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 orOber, 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 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, 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 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, 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 them, that if they 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 Georgtown. 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 pursued.-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 vessel the power of the collector to take the bond ceased. The cases all show that such an averment may be made. 1 Lord Ray. 349, Pullein v. Benson. 2 Wils. 347, Collins v. Blantern. 2. The same argument applies to the 2d joint plea. The law authorizes a bond to be taken in only double the value of the vessel and cargo. If the officer requires 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. 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. 4 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 doctrine should prevail as is necessary to support this replication. There would be no safety in a sealed instrument, if the subsequent agreement, or even the understanding of the parties at the time of its execution, could be given in evidence by parol, to vary the instrument. JONES, contra. 1. As to the first plea. The law does not require the bond to be given before the departure of the vessel. By consent of the parties it may be given afterwards. The plea states that one of the obligors executed the bond after the vessel had sailed. There is nothing in the law to make the deed void for that cause. 2. As to the second plea. The obligors are estopped by their bond from denying the value of the vessel and cargo. The bond is their own voluntary act. They have agreed to the value. If the question of value were open after giving the bond, it would lead to endless litigation. 3. As to the erasure. There is no authority which forbids such an alteration by the consent of all parties. In the case in Croke, the alteration was made without consent of parties. It is immaterial whether the consent be prior or subsequent. February 16''th. Absent TODD, J.'' STORY, J. delivered the opinion of the Court as follows: