
    A. M. Wicker, assignee, vs. Charles P. Pope and John B. O’Neall.
    
      Erasure — Alteration—Evidence—Prison Bounds Bond— Assignment.
    
    In the recital to the condition o'f a prison bounds bond, a name had been erased, and another inserted. No evidence was offered to explain the erasure, and the Judge submitted it to the jury to decide whether it was made before the bond was executed. The jury found for the plaintiff, and on appeal the Court refused to disturb their verdict.
    Whether an alteration was made before or after an instrument was executed, is generally a question of fact for the jury to decide, and the party offering the instrument is not bound to offer evidence to show when the alteration was made, but may rely upon appearances on the face of the instrument itself to explain it.
    A prison bounds bond can only be assigned to the plaintiff in execution, and an assignment to a third person, being void, may be disregarded and the bond assigned to the proper party.
    BEFORE WARDLAW, J., AT NEWBERRY, SPRING TERM, 1859.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbis was an action of debt on a prison bounds bond.
    “The declaration sets forth tbe recovery of judgment by tbe nominal plaintiff against Charles P. Pope, tbe arrest of tbe said C. P. Pope under a ca. sa., tbe execution by tbe defendants of a prison bounds bond with proper conditions, the assignment of the bond by Bonds, sheriff, successor of Kinard, sheriff, who took it, to tbe plaintiff, and three breaches, .to wit: First. That Pope went beyond the limits before be was legally discharged. Second. That tbe schedule which be rendered did not include bis whole estate, nor sufficient to satisfy tbe sum due on tbe said ca. sa. Third. That he did not, at the expiration of the prescribed notice, nor at any subsequent time, assign and surrender the property contained in the schedule.
    “The pleas are: 1st. Non est factum. 2d. That Sheriff Bonds, before the assignment mentioned in tbe declaration, assigned the said bond to Jacob Kibler, so that he could not have assigned to the plaintiff, Wicker. 3d. After oyer, that the condition of the bond has been erased in a material part, to wit, one name struck out and another inserted, and so the ■bond is void. 4th. Performance of the condition. By subsequent pleading, issues of fact were presented on each of these pleas.
    “ On the trial, the plaintiff showed the sealing and delivery of the bond ; that in'February, 1851, O. P. Pope filed a schedule and prayed the benefit of the Prison Bounds Act. After due notice the plaintiff filed a suggestion contesting the truth of the schedule, and upon trial before a commissioner of special bail and a jury, a verdict was rendered against the said 0. P. Pope; he appealed, and’between the trial and the. hearing of his appeal he was seen in New York. That no assignment accompanies the schedule, nor order of discharge, and that the ca. sa. and judgment on which it is founded are yet unsatisfied.
    “The defendant moved for a nonsuit, mainly upon the ground of erasure ; on the face of the bond it appeared that in the prefatory statement which precedes the condition, one name had been struck out and another inserted, thus: 1 Whereas, the said G. P. Pope has been arrested by virtue of a writ of capias ad satisfaciendum, at the suit of A. M. WicJcer, for another,’ &c. The attesting witness of the bond remembered nothing on the subject, and there was no direct testimony in explanation; but it appeared to me so manifest that the erasure was a mere hasty correction of a- clerical error, made before execution, that I refused the nonsuit, saying that I would submit the fact, as to the time when the erasure was made, to the jury, according to the issue made under the third plea.
    “The defendant showed that upon the appeal of 0. ,P. Pope, the order made in the Court of Appeals, 1852, was this: ‘New trial granted, with leave to amend the suggestions.’ He further offered testimony to the effect that amongst the articles mentioned in the schedule aforesaid were a gold medal, which was said to have cost forty dollars, but was' intrinsically worthless, and dentist’s instruments, which were of considerable value. (The plaintiff’s recovery was seventy-two dollars and twenty-nine cents, besides interest and costs.)
    “ The defendant also showed that prior to the assignment of the bond to the plaintiff) the sheriff had, in the presence of two attesting witnesses, under his hand and seal, declared that he assigned ‘the within bond’ (the one now sued on) ‘to Jacob Kibler, the real plaintiff in the case of A. M. Wiclcer, who sues for another, vs. 0. P. Pope1
    
    “I held that the absence of C. P. Pope from the State, before his appeal was heard, and after the execution of the bond, was a breach of the condition; that the value of the articles mentioned in the schedule was immaterial, for neither an assignment nor offer to assign had been shown:
    “ That it was the duty of C. P. Pope, after the order of the Court of Appeals, within a reasonable time, (which would have been short of that which elapsed before this suit was brought in 1857,) to have taken steps toward a new trial, or the renewal of his application for discharge ; the plaintiff, for aught that appeared, not choosing to avail himself of the leave of amendment offered to him; and that there could, under our Act of Assembly, be no other assignment of a prison bounds bond but an assignment to the plaintiff; and therefore the attempt to assign to Jacob Kibler was a mere nullity.
    
      “ I submitted to tbe jury tbe question of fact, whether the erasure in the recital preceding the condition appeared from circumstances to have been made before the execution of the bond.
    “ The verdict was for the plaintiff, the amount shown by the ca. sa.”
    The defendant appealed, and now moved this Court for a nonsuit, on the following grounds:
    1. Because the condition of the bond sued on was erased, and there was no proof that the same was made before the execution.
    2; Because' the bond had been previously assigned.
    3. Because the schedule was of sufficient value to pay the ca. sa.
    
    
      Jones, for appellants.
    
      Baxter, contra.
    
      
      
         H. H. Kinard, erased.
    
   The opinion of the Court was delivered by

Wardlaw, J.

In relation to the second and third grounds of appeal, this Court approves of what is said in the report: and it is unnecessary to say more.

The appellants’ counsel has adduced many authorities to show that if, on the production of an instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. But it is well replied that, in the absence of all other evidence, the appearance may itself be explanatory, or, in other words, the internal evidence afforded by the instrument itself, may show that the alteration preceded the execution; as if the alteration appears in the same handwriting and ink with the body of the instrument, or if it is against the interest of the party deriving title under the instrument. Generally speaking,” (says Mr. Greenleaf, whose condensation of the law on fhis subject is adopted by this Court, 1 Green. Ev. sec. 564,) “if nothing appears to the contrary, .the alteration will be presumed to be contemporaneous with the execution of the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done, as well as that of the person by whom, and the intent with which the alteration was made, as matters of fact, to be ultimately found by the jury, upon proofs to be adduced by the party offering the instrument in evidence.”

Ordinarily these questions are determined by the Court in the first instance, upon a preliminary objection to the admissibility of the instrument: but they are often open again to the jury, — always so when the validity of the instrument is directly involved in the issue. In the present case, the defendants raised issues of fact involving direct inquiries into the effect of the alteration, both under the plea of non est factum, and the special plea of erasure. It appeared that the name of the sheriff, Kinard, to whom the bond was payable, had been inserted in the recital, at the blank left for the name of the defendant in the ca. sa., and had then been struck out, and in lieu of it the name of that defendant, C. P. Pope, inserted.- That this had been done before the execution, was presumable from the manifest requirements of the instrument; but it seemed to be made more certain by the occurrence in the condition, of the words plainly written, “the said C. P. Pope,” which could refer to nothing but the name of 0. P. Pope, inserted in the recital. The jury could not reasonably have been expected to be dissatisfied with appearances so plainly explanatory; and this Court is not at all inclined to disturb the verdict in favor of the instrument.

The motion is dismissed

Withers, Whitner, Glover and Munro, JJ., concurred.

Motion dismissed  