SPEAKE AND OTHERS

v.

THE UNITED STATES

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, and 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 The 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 Defendant , 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 is 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 is the 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.