#### SPEAKE AND OTHERS v. THE UNITED STATES.

*Msent...Tovp, J.*

A bond taken by vU-iiie of of the embargo law of January dot’ void’ at though , taken ^arues^R-N the ^vessel trio sanai.

m-e° Sopped to deny that Euob1’TMbS'id01 is doutue the true value of the vessel atm cargo.

The name of be'eSsed Rom a bond and a Eerted'if'coii" seut of ÍÍkiÍJ pañíes, withboidy'oR ¡1C such consent S%aroíIO'ví! deimc-i auu it i» immaterial *29*fr*after the-.exeof t,;* ’

*28ERROR to the Circuit Court for the district of Columbia, in an action of debt for 8787 dollars upon a Hated 14th April, 1808, talfen by the collector of the port, of Georgetown, w-lh condition to be void if the Active 44 should not proceed to any foreign port “ or place, and the cargo should be re-landed in some *"*P01^ °f ^ie United States.” The bond was executed ®y Speake. the master of the vessel, and by Beverly and Ober the owners of the cargo, in compliance with the lst section or the. act of congress of the. 9lh of January, 1808, entitled “ an set supplementary to the act. entian acf laying embargo on all ships and vessels “ io. the ports and harbors of the. United States.” *Vol.*9, *¶,*10. ■* '

The Defendants having pleaded severally, sundry Pleas’ uPon which issues in fact, weje joined, pleaded jointly, (after, *oyer,)*1st. 41 that they ought not to be ci|a,,S('<l with the debts aforesaid by vii-tue of the writing obligatory aforesaid, 'because they say that the « said writing obligatory was required and taken, by “ ofte John Barnes,” collector, *kc.*44 by color of his 44 said office as collector as aforesaid, and by pretence of *“*an art congress, entitled,” &c. (the act of Jamiary 9th, 1808, vol. 9, p. JO,) 44 Which said writing obligatory «t and the condition thereof were not taken by the said *29« John Barnes, cobertor,” *kc.*«ipursuan1 to the said « act of congress, but contrary thereto in rhis, viz. that « the said writing obligatory was not sealed or deliver- « ed 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 col- « lector, *and after she had been allowed to depart and had “ actually departed from the said port- of Georgetown un- “ der the clearance so as aforesaid granted to her,*by rea«son whereof the said writing obligatory is void and of « no effect in law; and this, the said Defendant': are « .ready to verify wherefore they pray judgment if t'iey 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 mention- *“ ed;*by reason whereof the said writing obligatory be- « came void and of no effect in- *law;*and tins, 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 oughtonot to maintain their action against, them, « be- « cause 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, Speakc,*and *“ Robert Beverly and a certain Ebeneaér Eliason*and was « then and there delivered to one John Barnes,” collector, &c. « fin* the purpose of obtaining a clearance for « the vess.el in the. condition of thé said writing obliga- *30« tory, mentioned under the authority of an act of con- « gress, entitled,” &c. *(vol.-9,p. 10,J*« and the said « Defendants say that after the said writing obligatory « wras so executed and delivered as aforesaid, a dear- « anee wás graiited in due form of law to the said Ves-' « sel, 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 keep«ing of the said John Barnes,” collector, &c. « the « said writing obligatory, by the authority, consent and « direction of the said John Barnes collector as afore«said, was materially altered and changed in tfiiá, to *wit:*that the name and seal of the said Ebenezef «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 au- « thority of the said Defendant, Robert Beverly, where- « by the said writing obligatory was of no force or effeet whatever as the joint deed of them, the said De- « fendants, Josias M. Speake, Robert Beverly and Rofffeert 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 judg- « ment 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 concur-: «rent license, direction and authority of all the said De-, ■ « fendants and of the said ‘ Khenezer Eliason,. and not « without the license, consent and authority of the said « Josias M. Speake, Robert Beverly anil 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.

*31To this plea also, there was.a replication like that to. the 3d plea and., a general demurrer and joinder.

The Court heloW 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 vmuld mot'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 thatónd Ebenezer Eliasofi should be added as the third obligor, and . that he should sign ,and sealthe obligation j 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„r,einain in the possession of tl^e collector for' some time to give an opportunity to Ober. to execute thé sanie; 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 shouM.be striken out, and that,of Ober should be signed in bis stead, ripi that his name should be inserted in the body of the, bond. Accordingly with this understanding, the bond was executed by Speake arid Beverly in, the forenoon, and in the afternoon of the same day Eliason, in the absence of Speake and Beverly, .but upon .the condition agreed ,upon- between the collector and himself, and $peake and Beverly, that his name should he 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 vtas filled with, his name when that of Eliason, with his seál, was erased.,* at which time neither Speake nor Beverly was present, nor had they given any ás-' gent 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 solé owner of the vessel, and resided in Washington county, *32in the district of Columbia, and that Beverly and Ober were the owners and shippers of the cargo.

Whereupon the counsel for the Defendants prayed Court to instruct the jury, that if they should believe that the bond aforesaid was executed and erased at the periods arid under the circumstances stated by the witness or. 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 ofthe cargo, tí. y ought to find the issues for the,Defer,denis on the joint and several píéas of *non est factum ;*which instructr-n the Court refused to give as prayed *;*but at the instance of the attorney of the United Statfes, instructed them, that if t hey should find from the evidence that the erasure of the signature and seal of Eliason and the substitution of (he 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 liad cleared out and sailed from Georgetown. To which refusal and instruction the Defendants .excepted, and brought their writ of error.

■ Swann *and*C. Lee, *for the:£laintijfs in error.*

1. As to the first joint plea, that the bond was not executed by Obpr, until after the vessel had sailed.

The collector was bound to take the bond before the saiiing pf 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. — 8 *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 *Chilly's*pleading, 478-. -So in the case-of,a sheriffs bond hi. England, if not taken according to the statute it is void — 2 *Sound.*00. After the departure of the ves*33sel 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, *Fullein v.*Benson. 3 *Wiis.*347, *Col lins v. Blantem.*

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, presenta question of great *importance;*shall* a parol agreement authorize an officer to make a material alteration in a sealed instrument? The consequences of such adoctrine 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 niay 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 tor the collector, it could not be as an escrow. A bond cannot be delivered .to the oligi-e as an.escrow. *Riddle v. Moss, ante, yol. 5. p.*351.

By the delivery it became absolute and binding upon ájí the parties. A discharge of one was the discharge 'of all. 9 *Coi*137, *Thvroughgood’s easel'*4 *Co:*27, *Henry PigoVs case.*- It is of no consequence whether the name of Eliason were materiál or not. An immaterial alteration by the obligee avoids the bond. No parol understanding or agreement of- tjie parties can prevent a material alteration from making the deed void. *Cro¡ Étiz.*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 ho safety if such a doc-. *34trine should prevail as is necessary to support this replication. There would be no safety in a scaled instrument, if the subsequent agreement, or even the understanding qf the parties at the time of its execution, couid given irt 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 tlic obligors executed <he bond after the vessel had sailed. There is nothing in the law tó 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 hond, 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 tiie case in Croke, the alteration was made without consent of parties. It is immaterial whether the consent be prior or subsequent.

*February 16th*

....Msent Todd, *J.*

Store, *J.*

delivered the opinión of the Court as follows:

This is an action of debt brought upon a bond given under the f rst. section of the embargo act of the 9th of Jan. 1803. h. 8. 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 Gfyer, 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 pretence of the act of congress aforesaid, *35and 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 tiie same condition mentioned had received a clearance in due form, and át'ter 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 errors that the act of congress of the 9th of January, 1808, sec. 1, having declared that no vessel licensed for the coasting trade shall be allowed to depart fr,om any port of the United States, or shall receive a clearance until the owner, *Sec,*shall give bond to the United States in a sum double the value of the vessel and cargo. *Sec.*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 yoid.

We cannot yield ássent tov 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 jv giect 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 he involved in great difficidiies. . If the collector be not authorized to receive the bond after a clearance, neither is he authorized to grant a cleara ce before be 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 pf the Court beiow in this plem

*36The 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 suni more than double the value of the vessel and whereby the'bond became, void. .On demurrer to this plea" and joinder in. demurrer, the Court below gave judgment for the United States 5 and wc are of opinion that the judgment so given ought-to be affirmed. There is no allegation or pretence that the bont[ was unduly obtained by the collector, *colore officii,*by fraud: oppression or circumvention. It must, therefore, be taken to. have been a voluntary *bona Jidc*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 dangeroiis 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 chuld guard. A mistake of one dollar Would be as fatal as often 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'soction ? - Where the lav? provides that the penal sum'of a bond shall'be equal, to. the double value, anti; the parties voluntarily and without. fratid assent to the1 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, fay the' authority, consent and direction of the collector, materially altered and changed, iff’ this, that the name of Ebéhezé^'Eíiason was cancelled and erased frorertfae bond, arid the name, signature and leal of the Defendant. Robert Ober, substitqted and inserted therein, without the licéíiss, consent, or authority of the Defen*37dant, 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 Eben.czer Eliason, not without the license, consent and authority of the Defendants, and prayed that the sanie might be enquired 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 arc 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 bid obligor, if done with the consent and concurrence of all the parties to' tl)e.' 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 hooks' in which erasures, interlineations .and alterations in deeds have been held to avoid them, w ill be found, ■ on examination, to have been cases in which no such con-' sent 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 j for if not takeii notice qf by a memorandum o,n 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, b.ut only to-ascertain what those writ-, ten terms are. On *non est factum,*the present validity of the deed or contract is in *issue;*and every circumstance that goes to shew7 that it is not the deed or con: tract of the party, is proveabic 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 hot, of itself, avoid, it. To produce this effect, it must be shewn to have been made under circumstances that the law does not warrant. Parol evidence *38is let in for this purpose; and the mischief, if any, wouklequally pi'ess on both sides. The principie, however, which has been already stated, is tpo firmly fixed to be shaken by any reasoning *ub inconvmienti.*

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 are 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 hot prepared to admit that every alteration whatever hi a deed, after its execution, lor such, is the extent of the opinion just given, may be proved by parol testimony. After perfecting a deed in one form, ho 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 wilbsay that he understood the oh; ligor as assenting to it. The only case which 1 hávé been able to find of those cited, such is the difficulty of procuring books in this place, is the one. *in-Levina, p.*11, 33, which establishes that after the delivery of a hond, a new obligor may he 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 if» admitting such.Tact tobe proved. It is?therefore, :«q interference with this decision, to say, thatnq 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 *39is tlie case here) should be palmed on him by parol téstimony ; -and so, *vice versa,*that no alteration which may he, in any way, injurious to the grantee or obligee, should he set up by the other party; but that the terms in which the deed is originally Executed should alone 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 *Jaw;*and therefore I think that the judgment of the Circuit Court ought to be reversed.

Marshals, *Ch. J.*

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 lie thought'it was void in law;

He should not however have intimated his opinion On this point if a dissenting opinion Sad 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.