Washington County MD Archives Court.....Long, Oneale V. 1827 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/md/mdfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines ddhaines@gmail.com June 27, 2006, 7:04 pm Source: Condensed Reports Of Cases In Supreme Court Written: 1827 Oneale v. Long. 4 Cranch’s Reports, 60 to 62. pages 24-25 If a bond be executed by O. as a surety for S. to obtain an appeal from the judgment of a justice of peace in Maryland, and the bond is rejected by the justice, and afterwards, without the knowledge of O., the name of W. be interlined as an obliger who executes the bond, and the justice then accepts it, it is void as to O. [See note at the end of the case.] ERROR to the circuit court of the district of Columbia for the county of Washington. This was an action of debt upon four several bonds signed by Mary Sweeny as principal, and William Oneale, I. T. Frost, and Lund Washington as sureties, condition that she should prosecute her appeal upon four several judgments rendered against her by a justice of peace in Maryland. William Oneale, the defendant below, pleaded non est factum, and upon the trial of that issue took a bill of exceptions, because the court below (two judges only being present, and divided in opinion) did not, at his request, instruct the jury, "that if they should be satisfied by the evidence that the bonds were signed, sealed, and delivered by Mary Sweeny as principal, and I. T. Frost and the defendant as her sureties, and were afterwards presented to C. C. (the justice who had rendered the judgments) for his approbation and acceptance of the securities, and were by him refused and rejected, and after such rejection were interlined, without the license, privity and knowledge of the defendant, by inserting the name of Lund Washington as a co-obligor, who, on the succeeding day, without the privity, knowledge, and consent of the defendant, signed, sealed and delivered the bonds, which were afterwards approved of by the justice; that then such interlineation and execution of said bonds by Lund Washington rendered them void as to the defendant, and the plaintiff cannot recover in this suit." By the act of Maryland, 1791, chap. 68, sec. 5, no execution upon a judgment of a justice of peace shall be stayed by an appeal unless the person appealing, or some other in his behalf, "shall, immediately upon making such appeal, enter into bond, with sufficient sureties, such as the justice by whom judgment shall be given shall approve of, in double the sum recovered, with condition," &c. P. B. Key, for the plaintiff in error, contended that the deeds were void. 1. By reason of the alteration. Cited, Esp. N. P. 223, 224. Markham v. Gonaston, Cro. Eliz. 626, 627. Moore, 28, pl. 89. Shep. Touch. 68. 2. By their rejection by the magistrate. Cited, Whelpdale’s Case, 5 Co. b. Shep. Touch. 70. Martin, contra. The interlineation is immaterial, and for the benefit of the obligor. Henry Pigot’s case, 11 Co. 27. Esp. Nisi Prius, 224. Shep. Touch. 68. Mr. Chief Justice MARSHALL delivered the opinion of the Court; that there was error in this, that the court below did not instruct the jury as prayed by the defendant. He observed that the judges did not all agree upon the same grounds, some being of opinion that the bonds were void, by reason of the interlineation, and others that they were vacated by the rejection of them by the magistrate, and could not be set up again without a new delivery. Judgment reversed, with costs. As to alterations of bonds or sealed instruments. 1 Peters’s Digest, 191, "Abstractions of Bonds, or Sealed instruments." The name of an obligor may be erased from a bond, and new obligor inserted, by consent of parties, without invalidating the instrument: such consent may be proved by parol, and it is immaterial whether the consent be given before or after the execution of the deed. Speake et al. v. The United States, 9 Cranch, 28. A bond is not avoided by the seals being torn off, fraudulently or innocently, but may be declared upon as a subsisting bond.Cutts v. The United States, 1 Gallis 69. The tearing off the seal of a bond by the obligor or by his connivance, without the assent of the obligee, does not avoid the bond. The United States v. Spalding, 2 Mason, 478. An alteration in a bond made by one of the clerks in the custom-house after its execution, for the purpose of rectifying it, but which did not effect the its construction, was held to be the act of a stranger, and immaterial, and did not avoid the bond. United States V. Hatch et al. 1 Paine, 336. The fact, that there is an erasure or interlineation apparent on the the face of the deed, does not of itself avoid it; to produce this effect it must be shown to have been made under circumstances that the law does not warrant; parol evidence is let in for this purpose, and the mistake, if any, will equally press on both sides. Speake v. The United States, 9 Cranch, 37. Additional Comments: Condensed Reports of Cases in The Supreme Court of the United States Containing the Whole Series of the Decisions of the Court from its Organization to the Commencement of Peters's Reports at January Term, 1827 with Copious Notes of Parallel Cases in the Supreme and Circuit Courts of the United States Edited by Richard Peters, Counsellor at Law and Reporter of the Decisions of the Supreme Court of the United States Second Edition in Six Volumes Vol. II Philadelphia: Thomas, Cowperthwait & Co No. 253 Market Street 1841 This file has been created by a form at http://www.genrecords.org/mdfiles/ File size: 5.8 Kb