
    LOVE, use &c., vs. SHOAPE & MARTIN.
    In a bond for building a pubic bridge, the erasure of the names of two of the three obligors, is añera*' sure in a material point, and the court shonld have so instructed thejury.
    If one of the obligors was not present, or did not consent, the bond was void as to him.
    
      Messrs. Gildart and Dunn, attorneys for defendants, contended:
    
    First— That the plea of nonest factum was sufficient for the defendants to have given in evidence an erasure in the bond; 5 Dane, page 417.
    The court erred in refusing to charge the jury that the bond was void as to Martin, one of the defendants. An erasure in a bond makes the bond void, though the erasure be immaterial, if done by a party thereto; but, to make the bond void, when done by a stranger, it must be in a material part; 1 Swift’s System, 310; 11 Coke, 27.
    Mr. Nabb was the agent; otherwise the bond never was perfect, because the delivery was to him. The alteration was made by McNabb & Shoape and consequently by a party to the deed; therefore void.
    But the erasure was in a material point. Martin and Quin were changed from principals to securities. If Martin paid the bond as principal, then Quin was bound to him for one-third only. But if as security, and Shoape should be insolvent, then Quin was bound for one half to Martin. This shows the erasure to be in a material part. '
    If the erasure was in a material part, the judge should so ¿ave declared it, and have charged the jury that it was void. He failed to do this, and, therefore, the judge erred when he refused to charge the jury that the bond *was void; 6 Dane, ch. 182, a, 5, page 232.
    Second — That the court erred in refusing to grant a new trial. New trials will be granted where the parties are taken by surprise. In this case, the erasure in the bond was a material enquiry. At one court, Me Nabb, the witness, swore that he did not recollect who waspresent, or that any one was, when he altered the bond. Was it not surprising, then, that he should have stated, at a subsequent court, 'that Shoape was present?— If the bond was altered in a material part, Shoape was discharged if he did not assent to the alteration. The plaintiffs were bound to prove this assent. Their ^witness, and their only one, failed to prove this fact at a former trial. Without this proof, Shoape was protected from a judgment, He was led to believe that this consent could not be established, and induced to rest his whole cause upon that single point. Then, for the same witness to come in and state that Shoape was present when the bond was altered, and consenting thereto,- thereby establishing the legality of the erasure, was enough to create surprise.
    The discovery of new and material testimony, after the trial, or which could not be had before, and which is not cumulative, is sufficient to authorize the granting of a new trial. The facts necessary are established by affidavits in the cause. Therefore the court errred in granting a, new trial.
    
      
      Mr. Gaines, attorney General, for the plaintiff contended:
    
    First — That a plea in bar, and a demurrer cannot both be allowed, at the same time.
    Second — That there is no bill of exceptions, because the evidence is not embodied in it.
    Third — That the erasure was immaterial; Shoape was the undertaker, and Martin and Quin his sureties; 2 Starkie, 475 to 480; 2Cow., 781;— Comyn on Contracts, 23; Acts of 1826, 7, 8.
    Fourth — A new trial will not be granted to enable a party to impeach the credit of a witness.
   OPINION OF THE COURT — bv the

Hon. J. R. NICHOLSON

This is an action of debt, brought on defendant’s bond, entered into for building a bridge over Bogue Chitto, in Pike county. The bond was originally entered into by Shoape, Martin and Quin, jointly. In the condi-tioh of the bond, the names of Quin and Martin were erased, which changed the undertaking to Shoape alone.

The first point presonted by the bill of exceptions is, whether this erasure was a material one? MoNabb, the Clerk of the Board of Road Commissioners, made the erasure, under the belief that Shoape alone was the undertaker, and Quinn and Martin the securities. The law under which this proceeding took place, is to be found in tho Revised Code, 357, and authorizes the Road Commissioners to contract for the building of bridges, and keeping them in repair, &c. It is not obligatory on the Board, in such contract,to take security; provided the undertakers are persons of responsibility. Hence it was competent for these three individuals to undertake jointly, and, by the erasure of the names of Quinn and Martin, Shoape alone became the undertaker, which entirely changes the face of the contract. This, then, was an erasure in a material point.

In 11 Coke, 27, a, it was resolved that, when any deed was altered in a point material, by the plaintiff himself, or by any stranger, without the privity of the obligee, by interlineations, addition, erasing, or by drawing of a pen through a line, or through the midst of any material word, that the deed thereby becomes void.

Whether an erasure be in a point material or not, is matter of law for the court; 6 Dane, 232. The coprt below ought to have charged the jury that this erasure was in a point material.

Secondly — The defendant’s counsel called on the court to instruct the jury that, if Martin was not present, or did not consent to the alteration of the deed, it was void as to him, which instruction the court refused to give.

We are unanimously of opinion that the court below erred in not charging the jury that this was an erasure in a material part;. and it also erred in not giving the instruction as asked for above, by the defendant’s counsel.

The judgment below must therefore be reversed, the cause remandad, and a venire de novo awarded.  