Weekly Trinity journal., 1857-12-26
Opinions of the Court in the Cases of The
People VS.. Lynn and Potter;
RENDERED AT Dec. TERN District Court, BY
Hon. VIM. z. DaingerIieId.

]
1st. That there is defect of parties defend
ant, it appearing from the supposed official bond
copied in said complaint, that the same was ORR
ginally executed by another person who is not
made party defendant
2nd. That the said complaint does not state
facts sufficient to constitute cause Of action, in
that it appears from the face of said complaint
that the action is brought upon a supposed Off
cial bond, one of the sureties names upon which
has been erased and no facts set up showing how
why or by whom said erasure was made or ac
count therefor in any manner, wherefore defend
ants pray, &c.
The People Of the State of California Us. c. F.
Lynn, ct. al.-ON Demurrer.
Suit is brought by the State against Lynn and
his sureties, in which it is alleged that as Treas
urer of Trinity County he has received monies
belonging to the State, which he has failed to pay
over.
| The bond is set forth in words, or in other
words % pro fert" is made of the bond, from which
it appears that the name of one of the sureties
has been erased, or that line has been drawn
across the name of one Bachelor, whose name
appears as surety. Bachelor however. is not
sued, the bond being joint and several, and the
statute of the State giving the right to the holder
of the bond to sue any or all Of the sureties at
the option of the holder.
With regard to those who signed above the
erasure, have no hesitation in deciding that the
demurrer is not well taken as to them, but as to
those who signed below there is more doubt and
this question must depend upon the fact, whether
the bond is U0id or only UoiddbLe, as to them. as
the ground taken in the demurrer is, that the
complaint does not state facts sufficient to CON
stitute cause Of action"
The rule of law is, that where defect is patent
upon the face of the complaint, advantage must
be taken thereof by demurrer, and if from the
statement OF facts apparent on the face of the
complaint, the people have cause Of action then
the demurrer is we'll taken. but if they may have
cause of action, then advantage must be taken
of the defect in the cause of action by answer
Then applying these premises to the law of the
case, is demurrer the proper remedy, or will the
defendants be required to answer? The decisions
upon this point seem to be somewhat conflicting,
but the current of authorities seem in favor of the
position that this instrument is not absolutely
void one, but voidable particularly would this
seem to be the under statutes giving the
right of action against any or all of the sureties
From all the authorities introduced, (and GER
tainly very great industry has been shown in their
colectionD l think | can gather the following
general rule, which is founded upon reason as
well as authority:
That where an alteration has been made which
is patent upon the instrument itself, and which
would effect the party Offering the instrument in
evidence, or seeking to recover on it adUdntoge-
! oHS'y, the Court would pronounce it void Gbso-
Iutely, particularly where the party offering it
has been its custodian, as the law will not permit
such a premium to be offered for perjury as any
other course would hold out but where the al
] Al. ~
ing it, no such presumption is raised, and tue in
strument is only goidable.
| In the first case the instrument being insufficient
in point Of law. to maintain a suit demurrer
would be sustained but in the latter the instru-
ment being only yoidable. and only Uoi9 in a Ger
tam Aolcing ?ffact advantage must be taken by
answer when proof ali,pde ght be introduced
In the one case the instrument itself would be
evidence that the plaintiff could not recover, in
/ the other proof have to be introduced show
| ing that the plaintiff ought not recover.
This bond. therefore presents the two insignia
of which | have spoken. and will have TO be gov
erned on the hearing by both rules The al'era-
| tiOn made in the instrument being made against
] the interest of those whose names appear on the
bond after the alteration they will only be re-
quired to show the alteration by the record. and
! then it will devolve upon the State to show that
it was made before the signing by them they
will not be held liable for any POI on Of the debt,
but as to those obligors who signed before the
apparent erasure, no such burden will be imposed,
unless they produce proof that the alteration was
made after it was made an entirety.
Most of the cases cited by counsel are suits be
tween individuals, it is true, but then can see
no reason. particularly under our California sta
tutcs, for a more stringent rule against the State
than against individuals and as the object of all
law is to administer justice, aud no substantial
rights can be effected. shall override the demur
rer and give the defendants leave to answer
Another view which may be well taken in this
case is. that the face Of the papers it does
not absolutely follow a matter of law that any
| alteration which would effect its legal force has
been made in the instrument. True there is
erasure of the name Of Bachelor, but Chief JUS
ticc Story, I'd Vol. contracts. p 1000. and Green
! leaf lst vol Ev., p. 56i, lay down the law to be
that the presumption Of law is that the alteration
was made at the time Of the execution of the in
strument. If that be So it follows that so far as
the papers in this case show, the defendants knew
Of the alteration when they signed it, and cOnsc-
quently are bound by their acts until the plead
! ings raise the issue Of fact. l. however am of the
opinion that the general issue would be sufficient
TO throw the burden of proof upon the State, and
| that in order to bind those obligors who signed
below. (the fact being admitted that those below
signed after those above,) the State would be re-
quired to account for and explain the alteration
so far as the responsibility Of Bachelor is con-
cerned to the State, were he sued, | am not
called upon to decide, but his responsibility to the
State and to the other oblgors upon the bond
will not depend upon the same evidence, but if
his liability, once attached, doubt the justice to
those who were bound, of permitting him by his
own act and without the consent of those inter
ested, to escape responsibility.
Let an order be made overruing the demurrer.
W. L. DANGERFIELD,
District Judge.
Sprague McMurtry and J. Gallagher, Attor-
neys for plaintiffs. Pitzer 4 Burch, and Chad
bourne d Howe for defendants.
The demurrer was overrued. and defendants
allowed forty days to answer.
Excepted to by defendants.
The People Of the State Of California rs. d. ".
Potter.
In this case there are two questions raised?
The first is are the suretes bound? ! think they
are not, for the following reasons which | shall
briefly state The bond is conditioned for the
proper performance of the duties Of the Office of
assessor, and not for all the duties that NAV he