SMITH V. UNITED STATES, 69 U. S. 219 (1864)

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U.S. Supreme Court

Smith v. United States, 69 U.S. 2 Wall. 219 219 (1864)

Smith v. United States

69 U.S. (2 Wall.) 219


1. Where several persons sign a bond to the government as surety for a government officer, which bond, statute requires shall be approved by a judge, before the officer enters on the duties of his office, an erasure by one of the sureties of his name from the bond -- though such erasure be made before the instrument is submitted to the judge for approval, and therefore while it is uncertain whether it will be accepted by the government, or ever take effect -- avoids the bond, after approval, as respects a surety who had not been informed that the name was thus erased, the case being one where, as the court assumed, the tendency of the evidence was that the person whose name was erased signed the bond before or at the same time with the other party, the defendant.

2. Any unauthorized variation in an agreement which a surety has signed, that may prejudice him, or may substitute an agreement different from that which he came into, discharges him.

An act of Congress, relating to marshals of the United States, [Footnote 1] provides, that "before" the marshal enters on the duties of his office, he shall become "bound" for the faithful performance of the same, before the judge of the District Court of the United States, jointly and severally, with sufficient sureties, "to be approved by the district judge."

With this act in force, Pine was appointed marshal and gave bond on which the name of Smith and others had been signed, and appeared as sureties. Suit having been brought against the marshal, Smith, and the others, his sureties, in the circuit court for the Northern District of Illinois, upon this bond, Smith pleaded that the bond was not his deed.

On the trial the United States offered the bond in evidence. The instrument showed on the face that it had been signed by a certain Hoyne as one of the sureties, but that his name was now erased. The defendants, accordingly, objected to the admission of the bond in evidence, on the ground that there was an erasure and alteration thereon, which it was the duty of the plaintiff to explain. The plaintiff then called the district judge, who had approved the bond. The learned justice testified that when it was brought

Page 69 U. S. 220

to him for approval, it presented the same appearance exactly as it did now at the trial, except that the names of the sureties were inserted by him in the first part of it; that it was brought either by one McGill or by the defendant, Pine; that Pine had difficulty in getting sureties, and had, some time before, told him, the witness, that Hoyne had objections to having his name on the bond, and Hoyne afterwards told him the same thing. The judge had not then seen it. Afterwards it was brought to him, with Hoyne's name erased. Not knowing the signatures of all the parties, he held the bond several days, and all the sureties came in and acknowledged the execution of it before him, except the defendant, Smith. He then approved the bond, and being personally acquainted with Smith's writing, certified to the genuineness of the signatures. The bond was then admitted in evidence, under objection.

At a subsequent stage of the trial the defendant, Smith, called the district judge as a witness, when he testified that some time before the approval of the bond by him, Hoyne stated to him that he had signed the bond, with others, for Pine, but that he had become dissatisfied, and that McGill and Pine had both agreed that his name should be taken off -- that he wanted it off, and was not willing it should remain on the bond. The witness said, further, that when the sureties who acknowledged the execution of the bond appeared before him, he might have called their attention to the erasure of the name of Hoyne, but was not positive; was inclined to think he did; thought he handed it to each one of them, and asked them if they signed it; he didn't know that they read it.

Hoyne himself testified that "he signed the bond -- which was circulated for signatures -- with others;" but that soon after, and before its approval, he became dissatisfied, and requested McGill and Pine to have his name erased; and that they promised to do this. Not being able himself to get the bond to do it, and knowing that it would have to be approved by the district judge, he went to that officer and informed him of his wish; said he had signed it, and wanted

Page 69 U. S. 221

to have his name erased &c. The judge told him, that in justice to the other signers, he should tell them that he wanted his name off; that accordingly, in a very short time, he, the witness, spoke to all the parties who had signed, except Smith, who was absent, and told them that he wanted his name off. A few days after, in response to his inquiry, the judge told him that his name had been erased. When it was done, and by whom, he did not know.

On this state of facts, the counsel of the defendant, Smith, requested the court below to charge, among other things, as follows:

1. That if the jury believed, from the evidence, that the name of Hoyne was erased from the bond in suit, without the knowledge or consent of him, the defendant, Smith, and that he, Smith, did not acknowledge the bond as his, subsequently to such erasure, the jury should find in his favor.

2. That the law places the burden of proving such consent upon the plaintiffs, and if they have failed to make such proof, they are not entitled to a verdict.

The court refused so to charge, and the defendants excepted. Verdict and judgment having gone for the United States, the defendants took this writ of error.

Page 69 U. S. 226

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