Smith v. United States (69 U.S. 219)
An act of Congress, relating to marshals of the United States,  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 surecties. 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 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 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.
Mr. Coffey, special counsel for the United States, defendant in error: There is no evidence in this case that Smith, or any of the signers of Marshal Pine's bond, made any condition when signing as to what persons, or what number of persons, should unite with them. Indeed, it is quite evident not only that there was no agreement or condition made by any of them on signing, but that each signed independently of the others, and without knowing, except so far as they had signed, who their co-sureties were to be. For Hoyne testifies that he 'signed the bond, which was circulated for signatures, with others;' and the district judge testifies that when he approved the bond he inserted the names of the sureties in the first part of it. It was the common case of a person carrying around an official bond, and getting any persons whatever who are willing to oblige, to a certain extent, the principal. When, therefore, the sureties signed, they must have done so without knowing who were to be their co-sureties, and, of course, without any agreement as to who or how many were to sign. This, then, we think may be assumed as part of our case.
The erasure of Hoyne's name, of which Smith now seeks to avail himself,-the first point, and one which, if decided as we think it ought to be, will render the others unimportant on the proofs,-was made, not only before the delivery of the bond to the plaintiff, but before the essential preliminary to its execution of approval by the United States district judge; and it was evidently made by Marshal Pine himself, or at his instance, and before the plaintiff had any connection with it. Certainly it was not made by or at the instance of the plaintiff. The explicit direction of the act of Congress relating to marshals, that the marshal shall 'become bound' before the judge of the District Court, with 'sureties to be approved by the district judge,' shows that the bond is in no manner executed until it is brought to the judge and approved by him. That approval is as essential to its valid execution as is the acknowledgment made in court to a valid recognizance. Before it is given, the signatures do not bind the sureties, for one important element to a good contract is wanting, viz., the agreement of the United States to accept them; that agreement being, by the law, expressed by the judicial approval. When, therefore, Hoyne's name was stricken off the bond, the erasure left him, as to the obligation which the sureties were about to assume, precisely where he would have stood if he had only promised to sign it, and had not done so. And surely if, having promised to sign it, he had never done so, it could not be pretended that his failure to sign would discharge the sureties who had signed and been approved, even though he and they had previously agreed that unless all signed, none should be bound; unless, indeed, the United States had been a party to that agreement. Such an agreement might bind all the sureties who made it, but could not affect the obligee, who was not a party to it, nor furnish any of them with a good defence to the bond, whatever right of action, in the event of loss, it might give to the sureties who signed, against one who did not sign. If, then, the erasure of Hoyne's name before approval, and without the connivance of the United States, no more affected the obligation of the other sureties than his failure to keep a verbal promise to sign would have done, it follows that it cannot relieve Smith from the bond. And this result follows, if Smith, when his name was approved, had no knowledge of the erasure, as it would follow if he had had a special agreement with Hoyne that one was not to sign without the other.
But even if the erasure be treated as a material alteration of the bond, after it was so far executed as to bind the signers, still, if it was made by or at the instance of Marshal Pine, without the knowledge or consent of the United States, it does not discharge Smith from liability. In such case the alteration must have been made by or with the knowledge or consent of the obligee. And, however, in the absence of evidence, that knowledge or consent might be inferred, where the bond had been delivered and was in his possession, in a case like this, where the alteration was made before it was delivered or came into possession of the United States, the knowledge or consent of the obligee to the alteration must be affirmatively proved by the party alleging and availing himself to it. To this effect is United States v. Linn et al., in this court,  an action on Linn's official bond. Duncan, a surety, pleaded as special matter in bar that he had signed and delivered it to Linn to be transmitted to the plaintiff, and after the sureties had been approved by the district judge, it was, without the consent or authority of Duncan, materially altered in this, that scrawls by way of seals were affixed to the signatures of Duncan and the other signers, whereby the instrument was materially changed and vitiated, &c. In considering this plea, the court said: 'The plea does not indicate in any manner by whom the alteration was made. It does not allege that it was done with the knowledge or by the authority or direction of the plaintiff, nor does it even deny that it was done with the knowledge of the defendant, Duncan. The plea does not contain any allegation inconsistent with the conclusion that it was altered by a stranger, without the knowledge or consent of the plaintiff; and if so, it would not have affected the validity of the instrument. The demurrer admits nothing more than that the seals were affixed after the instrument had been signed by the parties and delivered to Linn, to be transmitted to the plaintiff, and that this was done without the consent, direction, or authority of him, the said Joseph Duncan. Is this enough to avoid the instrument and bar the recovery? It certainly is not, for the seals might have been affixed by a stranger, without the knowledge or authority of the plaintiff, and would not have affected the validity of the instrument.'
If this principle be true of an alteration made after the bond is judicially approved, it certainly is true where the alteration is made by the principal co-obligor before the judicial approval, which, as we have seen, is the legal method of expressing the consent of the United States to the contract, and before which the obligation involved in signing does not begin.
But it is settled that even where the face of a joint and several bond shows that it was intended to have been executed by others, in addition to those whose names are appended to it, and those others have not united in signing it, still it is the valid and binding deed of those who do sign, unless they show an express reservation or condition at the time that it was not to be binding on them, without being also executed by the others.
In Pawling v. United States, in this court,  where the sureties in an official bond proved expressly that they signed on condition that others should sign, who did not sign, this court held that it was evidence for a jury to infer a delivery as an escrow. It is evident that without proof of that condition they would have been held bound.
To relieve the defendant, Smith, under these circumstances, would enable the obligors, in an official bond like this, to practice an easy fraud upon the Government. For it would only be necessary for those who sign such a bond to make a collusive arrangement with some one who did not sign, and, when sued on the bond, prove that arrangement in discharge of themselves.
Mr. E. S. Smith, contra: The assumption that Smith signed without knowing who else was to sign is not according to the evidence. It is obvious that each party in signing expected certain others would sign. Their names, we can hardly, in the nature of things, doubt, were stated. Any man in signing such a bond would naturally ask who else was to sign it, and according as responsible or irresponsible persons were named, might consent or refuse. This is plain. Hoyne may have signed with Smith. There is nothing to disprove that theory. At all events, the direction of the district judge to Hoyne, that he must notify to all the others his wish to have his own name erased, makes it obvious that all the others did know that his name was there, and did rely, as the condition of their putting their own there, on the fact.
Smith never personally appeared before the district judge and acknowledged his signature at all. The spirit of the statute requires the sureties to acknowledge the bond before the judge; to do under his eye, or else to acknowledge before him that they have done, whatever they ought to do. Signing and sealing alone does not bind them. Acknowledgment before the judge, and his approval after that, are superadded requisites to give efficacy to the sureties' act. This position is, in reality, taken by the other side to show that Hoyne's signature was a nullity, and, therefore, its erasure no alteration of a deed. But it is an argument that cuts two ways. It operates quite independently of Hoyne, and goes to destroy the whole ground of suit against Smith.
The taking away of Hoyne's name, therefore, was a material alteration; one going to the foundation of the obligation. It is said that the alteration was made without the knowledge of the United States, without the knowledge of the obligee, therefore; that the alteration accordingly does not affect the validity of the instrument. But the district judge was the representative of the United States. It was made with his knowledge. His acts and consents are those of the Government.
These principles would decide the case against the Government in any case; but in this one it is to be observed that Smith and others were but sureties. The rule of law in regard to this class of persons is settled. Standing in no equity to the plaintiff, a surety will be bound only to the extent and in the manner set out in the words of his contract. No implication can be made against him. The case, therefore, is to be decided with special reference to this fact.
Mr. Justice CLIFFORD delivered the opinion of the court.
^1 Act of 24th of September, 1789; 1 Stat. at Large, 87.
^2 1 Howard, 104.
^3 4 Cranch, 219.