
    Theodore Bailly Blanchard, Testamentary Executor of Theodore Nicolet, v. Spencer Gloyd and another.
    
      An error as to the ¿¡ate of the judgment appealed from, committed in filing up a blank in an appeal bond signed by a party as the agent of the appellants and in his own name as surety, will not discharge the surety, where the judgment is 'Otherwise sufficiently described. Per Curiam: The object of all written contracts is to express the intention of the parties, and where that clearly appears from the whole tenor of the instrument and the manner in which it was used, it will not be avoided for a clerical error, as to the surety, any more than as to the principal obligor. C. C. 1951. The rule falsa demonstratio non nocet properly applies to such'a case. So much of the description as is false must be rejected, and the instrument have its effect if a sufficient description remain.
    Appeal from the Commercial Court of New Orleans, Watts, J. Waterman, the surety in an appeal bond executed by the defendants, is appellant from a judgment rendered against him on a rule to show cause why he should not be condemned to pay the amount of the original judgment against the defendants. The question presented by this case grows out of a bill of exceptions taken by the appellant to the admission in evidence of a judgment purporting to have been rendered on the 14th of June, 1¿39, when the bond signed by him shows that he was surety on an appeal from a judgment reudered on the 29th of that month, on the ground of variance. The appellant also excepted to the admission of the testimony of witnesses to show by whom the date of the judgment in the appeal bond had been filled up, on the ground that parol evidence could not be introduced to alter, or explain a written obligation in which there is no ambiguity.
    
      Lockett and Micou, for the plaintiff.
    The appellant relies upon an error in the bond in stating the date of the payment from which the appeal was taken. There was full evidence that no other judgment existed in favor of the same ’plaintiff against the same defendant; that it was filed in the proper case, and that the defendants had the benefit of their appeal. This testimony is admissible. Belol v. Donovan, 1 Rob. 257, Succession of Roboaum, 1 Rob. 258. Singleton v. Smith, 4. La 433. Keys v. Powell, 9 La. 574. Penniman v. Barrymore, 6 Mart. N. S. 494. Palangue v. Guesnon, 15 La. 312.
    There is a striking and important difference between the prin
      
      ciple of decision in the civil and common law courts, with regard to judicial obligations.
    
    The English statute (23 H. 6, c. 9,) first regulating and allowing bail bonds, prescribes the form, and adds an express provision that bonds taken with any other condition, colore officii, or for ease and favor shall be void.
    
    A long course of decisions under this statute having established the invalidity of all bonds departing from the prescribed condition, the courts of common law insensibly adopted as their rule or maxim, that all bonds required by a statute'were void if they varied from the forms of the statute, without adverting to the distinction, that under the. act of Henry, the penalty of nullity was expressly ajjixed by the law to such variance, whereas in other acts there was no such provision.
    The civil law courts, not trammelled by any similar statutory provisions, and not misled by any false analogies to them, looking only to substance and not form, have adopted a different rule.
    The question with them is, for what was the bond intended ? Can its object and application be sufficiently ascertained and identified ? If so, in whatever manner a person shall appear to have deemed proper to bind himself to another, he shall remain bound. Duchamp v. Nicholson, 2 Mart. N. S. 672. 2 C. R. 775. 3 Mart. 569. Nov. Recop. lib. 10, tit. 1, ley 1. Febrero Ad., part 1, cap. 7, § 5, p. 97 to 105, Nos. 122 to 128. 1 Pothier Oblig. No. 56. Code Nap. art. 1120. 2 La. 47. 16 La. 174.
    In Duchamp v. Nicholson, the action was on an auctioneer’s bond which did not pursue the statute, yet it was held good.
    In pursuance of this maxim, that in whatever manner a man intends to bind himself, he shall be bound, and especially with regard to judicial stipulations, it has been held that it is not important that the bond should be signed by all the appellants, nor by any one of the appellants. Signature by the surety only has been held sufficient. Richardson v. Terrell, 9 Mart. 34, 35. Doane v. Farrar, 10 Mart. 78, 79. Poydras v. Paten, 5 La. 129. Wells v. Compton, 2 Rob. 187. See the Civ. Code, arts. 1709, 1940, for the rules of interpretation where the words are ambiguous — or where circumstances render it doubtful. Art. 1945, provides that the intention governs ; art. 1946, that agreements must be understood so as to have some effect; and art, 1952, that the construction must be against him who has contracted the obligation.
    So it has been often determined that signatures to a blank bond will bind. State v. Judge of the First District, 19 La. 179, Wells' Heirs v. Lamothe, 10 La. 411. 9 Mart. 34. 10 Mart. 74.
    So it has been decided, that a party was bound by a bond given on an attachment, although at the time, there was no law requiring or authorizing such bond. Larlique v. Baldwin, 5 Mart. 193.
    So, also, it has been resolved, that words wanting in such ' bonds shall be supplied by the court, and fourteen hundred and ten, shall be understood and held to mean 1410 dollars. Pen niman v. Barrymore, 6 Mart. N. S. 494. And this rule, was applied to the sureties as well as principals. Ibid. That where any obscurity or doubt is presented by the terms of the bond, they may be interpreted by the order in pursuance of which it was made. Ibid. And that a sequestration bond being dated the 9th, though suit was commenced only on the 10th, is immaterial. Ibid. Thus too it has been adjudged, that clauses improperly added shall be rejected, and any that are omitted shall be supplied. Slocomb et al. v. Robert, 16 La. 174.
    It has even been decided, that the surety on a twelve-months’ bond cannot be discharged on the ground that the law is unconstitutional. The bond was made after the law; and the court say “ volenti non fit injuria." 3 Cond. R. 773.
    Courts proceeding according to the common law, hold such bonds void. See Gilbert v- Anthony, 1 Yerger, 69. 6 Gill & Johns. 250. 1 Hill, 267. 2 Brock. 64. 1 Ham. 368. 2 Dev. 379; and the various cases collected in 1 Metcalf & Perkins’ Dig. p. 433.
    Yet even the courts of common law have been obliged to mitigate the rigor of their principles; and in modern times, where the whole bond is not declared absolutely void by statute, they hold it to be void only as far as it is in conflict with the statute, and good as to the rest. 10 Peters, 343.
    But the point which seems decisive is this: the alleged cause of invalidity is a mistake — the mistake of the party himself who profited by it. A court of chancery would correct that mistake by a decree, and set up the bond in it true intended terms.
    If a court of equity would do this, our courts where law and equity are administered together, according to the maxims of natural justice, will do it. 1 Story’s Equity, § 115, 152 to 164.
    Courts of admiralty, which proceed according to the forms and principles of the civil law, do not regard formal defects in bonds.
    Thus, an instrument void as a bond has been held good as a stipulation. United States v. Sawyer, 1 Gall. C. C. R. 145.
    So a bond not according to the usages of the admiralty has been held good on the ground, that those who had entered into the stipulation and had the advantage of it, ought not to be permitted to allege any unimportant informality in their own act. United States v. The Schooner Little Charles, 1 Brockenborough R. 380. And see the following common law cases; Wiser v. Blachly, 1 Johns. Chan. R. 609. Burn v. Burn, 3 Vesey, 575. Rawstone v. Parr, 3 Eng. Con. Ch. R. 424, 539. D'Ollijf v. Sou. Sea 1. Co. cited 1 Yesey, 601, and Dane’s Abridgment. Gillespie v. Moon, 2 Johns. Ch. R. 595, and the causes cited at p. 599.
    
      Dunbar, for the appellant.
    The contract of a surety is to be construed strictly both in law and equity, and his liability is not to be extended by implication beyond the terms of his contract. He has a right to stand upon the very terms of his contract. Miller v. Stewart, 5 Con. Rep. S. C. U. S. 727.
    This court has decided, that a mistake as to the term at which the judgment was rendered, in a petition of appeal, is fatal. Martin v. Rutherford et al. 6 Mart. N. S. 281. And that the true inquiry, on motion to dismiss an appeal for a defect in the appeal bond, is, could a recovery be had on the bond. A fortiori, must a mistake in the bond of the date of the judgment, be more fatal than in the petition of appeal. Pleasants v. Botts et al. 5 Mart. N. S. 128. Why was the appeal dismissed in the case cited for the mistake in the petition ? Because, from the judgment really rendered, there was no appeal. If there has been no appeal from the judgment recited in the bond, there cannot have been a forfeiture.of the bond.
    This appeal might have been dismissed ; and if, from the laches of plaintiff it has not been done, the surety is not to suffer. Nothing could be done or left undone by the plaintiff that would affect the rights of the surety. McOgleb v. Maxwell, 6 Mart. N. S. 528.
    In New York it has been decided that such a variance is fatal. 3 Wend. 426.
    The evidence excepted to should not have been admitted. The fact of the proceedings in this case being summary makes no difference. If a regular suit had been brought, and the bond declared on, the breach of the condition must have been set forth ; and evidence of a judgment rendered on a different day from the one in the bond and the affirmance of it by the Supreme Court, would not have been admissible. Pilie v. Moliere, 2 Mart. N. S. 667. The date of a judgment it is said, in 3 Wend. 426, may not be given in the bond, but if given incorrectly it is fatal. The date of a judgment in many respects is very material. It shows whether the appeal lies, for it may have been prescribed. It might have a preference as a mortgage by being recorded, &c.
    If a mistake was made in the bond, it was by the lawyer of Gloyd & McDonnell, and it does not appear that the surety had any hand in it, except so far as signing the bond as the agent of Gloyd & McDonnell, and for himself as surety. It was not necessary or material that he should have signed for Gloyd & McDonnell ; and the contracts as agent and surety, are as distinct as if signed by different persons.
    It is a general rule, that parol evidence of the intention of the parties is not admissible in law or equity, to vary or add to the terms of a written agreement. If the agreement is certain, explained in writing, and signed by the parties, that binds them. 1 Phillips on Evidence, 555, 567.
    But if the exception to the evidence was not properly taken, yet it comes to the same thing : the plaintiff has failed to make out his case, by offering a judgment of a different date from that for which the defendant was surety on appeal. Victoire et al. v. Movlon, 8_Mart. 400,
    
      The appeal bond in this case is void, because ,every contract must have a certain object which forms the matter of agreement. The judgment recited in the bond has no existence. That which does not exist, or has ceased to exist, cannot be the subject of a contract. Civ. Code, art. 1772. Duranton, vol. 10, Nos. 302, 303, 304. Pothier Traite des- Obligations, Nos. 129 to 140 inclusive.
   Morphy, J.

D. C. Waterman is. appellant from a judgment rendered against him on an appeal bond. He signed in the name of the defendants as their agent, and in his own name as their surety. This instrument, which is in the usual form, recites, that the judgment appealed from was rendered on the 29th of June, 1839, instead of the 14th of June, its real date. This mistake seems to have been committed by filling up the blank in the printed form of the bond intended for the date of the judgment, by that of the bond itself, which, together with the petition of appeal and the order of the Judge allowing the appeal, bears date the 29th of June, 1839. In consequence of this mis-recital in the bond, the appellant claims to be discharged from all liability, on the ground that he became surety for an appeal from a judgment rendered on the 29th of June, 1S39, and was not surety for an appeal from one rendered on the 14th of June, 1839. On the trial below, the plaintiff in the rule offered in evidence the record and judgment in the suit of Blanchard, Executor of Nicolet v. Gloyd & McDonnell, in which the appeal had been taken and the bond filed, together with the testimony of two wi nesses, to show that the date of the rendition of the judgment as set forth in the appeal bond was a mistake, and that the judgment of the 14th of June, 1839, was the only one ever rendered between these parties in the Commercial Court. The introduction of this evidence was resisted by the appellant, and a bill of exceptions was taken to the opinion of the Judge who admitted it. We do not think that he erred. The evidence offered goes to show a mistake, or clerical error in the bond, against which relief would be afforded in chancery by the admission of oral evidence. In the language of Starkie, 4 part, p. 1017, “ the extrinsic evidence in such cases, is not offered to contradict a valid existing instrument, but to show that, from accident or negli■gence, the instrument in question has never been constituted the actual depository of the intention and. meaning of the parties.” This court, which is one of equity as well as of law, has relieved parties against accidental mistakes of this kind. 1 Robinson, 257. 15 La. 312. 4 La. 433 and 350. 9 La. 574. Story’s Equity Jurisp. § 152 to 164. 5 American Common Law, p. 177, and cases quoted there. From an inspection of the bond itself, there can be no doubt as to what the appellant intended to do, when he signed this bond as agent of the defendants, and in his •own name as their surety. His purpose was to secure to them an appeal in this particular suit, and from the judgment which had been rendered in it. The object of stating the date of the judgment was to describe it more fully. If a mistake has been accidentally committed in this part of the description, when the judgment is otherwise described so as to leave no doubt of its being the one which the parties had in contemplation, shall this single mis-recital have the effect of avoiding- the bond by which the appellant, intended to bind himself ? Shall he be permitted to shelter himself from the responsibility he intended to incur, by pleading a defect in the bond which did not mislead him, and which may be (attributed to his own negligence, as he executed that instrument in his double capacity of agent and surety of the defendants in the suit ? In Penniman v. Barrymore, we held, that neither the principal, nor surety can escape from responsibility by an error that arises in drawing up the act by which they contemplated binding themselves. 6 Mart. N. S. 498, and the authorities quoted there. It is said, that the obligation of a surety is to be construed strictly both in law and equity ; that his liability is not to be extended by implication; and that he has a right to stand upon the very terms of his contract. This is true; but it is equally true, that the object of all written contracts is to express the intention of the parties. If such intention clearly appears from the whole tenor of the instrument, and by the manner in which it was used and acted upon, the instrument is not to be avoided, on a clerical error, as to the surety any more than as to the principal obligor. A bond signed by a surety is as much his contract as it is the contract of his principal; and both will remain bound, as it is shown they really intended to bind themselves. Civ. Code, art. 1951. 3 Mart. 569. 2 Ib. N. S. 672. 2 La. 47. 10 La. 411. 5 La. 129. 16 La. 174. 19 La. 179. In the present case, the appellant being the agent of the defendants, ■well knew from what judgment he had thought proper to appeal on their behalf. Had the mistake in relation to its date been discovered at the time of signing the bond, and pointed out to him, he would no doubt have corrected it, in order to entitle his principals to their appeal, as his neglect to take such appeal might have made him responsible to them. Whether the defect in the bond proceeded from error or bad faith, such error or bad faith was his own, and be cannot take advantage of his own wrong. It may be that the appeal might have been dismissed at the instance of the appellee, in consequence of this error in the bond ; but it does not necessarily follow that .after the appeal has been suffered to have its effect, the parties who furnished the bond can ask for its nullity on -that ground. It is finally urged, that the contract is void for want .of a subject matter, as the judgment recited in the bond has no existence. The m\efalsa demonstratío non nocet, properly applies here. The judgment referred to in the bond as having been rendered in this suit, really exists, but has been erroneously described as to its date. So much of the description as is false must be rejected; and the instrument must have its-effect, if a description remain sufficient to ascertain the application of the instrument. 2 Phillips, 713. Here the bond recites the names of the parties, that of the court which tried the suit, the amount, &c., so as to leave no doubt as to the identity of the judgment in relation to which it was given.

Judgment affirmed.  