
    [Sunbury,
    June 16, 1823.]
    MARSHALL and another against GOUGLER, for the use of GOUGLER.
    IN ERROR.
    isotne time after the execution of a single bill, two persons, not present at the eiu: - cution, and without any new delivery, put their names to it as witnesses, at the re» quest of the obligee, who was about to assign it. Held, that if it was done by mistake, and with the intention of witnessing the assignmentand not the bill, it did not avoid the instrument: but if done to authenticate the bill, it was rendered void by such alteration.
    If two are jointly sued, and summoned, and only one appears, the course is to talcs judgment by default against the one not appearing, to declare against both, and try the issue tendered by the other.
    • This was a writ of error to the Court of Common Pleas of Union county.
    It was an action of debt on a single bill, brought by William Gougler, for the use of George Gougler, plaintiff below, against Ptter Marshall and Sally Marshall, defendants below, in which the sheriff returned “summoned,” but an appearance was entered for Sally Marshall only, who pleaded non assumpsit and payment, and the plaintiff replied non solvit and issue.
    The single bill was described in the statement to be dated the 7th May, 1817, and to have been signed and scaled by the defendants, by which, they or either of them promised oil the first of tdpril next, to pay William Gougler or order, 400 dollars, for Value received. On the trial, the plaintiff called the two subscribing witnesses who stated, that they signed their names at the-same time as witnesses at the request of William Gougler, George Gougler being present, in February, 1818, but neither of the defendants was present, nor had they seen them sign or seal the instrument: that William Gougler told them he was about to assign the note to his brother George, who would not take it without witnesses. One of these persons stated, that he thought he was witnessing the assignment to G, Gougler; the other .swore that he told W. Gougler at the time, that he did not know what he was to put his name for, but he did it to oblige him, and on the express condition, that if the note should be questioned at law, his name should be null and void, and he should not be considered as a witness. The plaintiff then offered to prove, that the single bill was executed by P. and S. Marshall, by proving their handwriting, and also by showing, that Sally Marshall had admitted that she executed the instrument. This evidence was objected to by the defendant, and admitted by the court. The defendant, tendered a bill of exceptions.
    
      The plaintiff proceeded to prove these facts, and then offered the single bill in evidence. The defendant objected, but the court admitted it, and sealed another bill of exceptions.
    The defendant requested the court to charge the jury, that if they believed the subscribing witnesses were procured by TV. Gougler, to put their names as witnesses to the bill, without, the consent, and in the absence of Peter and Sally Marshall, it would avoid the instrument, and the plaintiff could not recover.
    The court charged, that if the jury believed that the witnesses’ names were procured to be put to the note with a fraudulent intention, with design to injure Peter and Sally Marshall, it would avoid the note; but if with design of assigning the single bill, through ignorance; and without any fraudulent intention, then the note would not be void.
    The jury found a verdict for the plaintiff below.
    The following errors were assigned:
    1. That there was no appearance for Peter Marshall, nor was there any issue joined as to him, whereas the verdict and judgment are against both Peter and Sally Marshall, and execution issued against both.
    2. The admission of proof of the handwriting of Peter and Sally Marshall to the single bill.
    3. Admitting the single bill in evidence.
    4. In the answer of the court.
    
      Blyth and Lashells, for the plaintiff in error.
    1. Peter Marshall never appeared, and yet there was a verdict and judgment against him!
    2. The other points may be considered together. We contend, that the procuring the names of two witnesses to be subscribed after the execution of the instrument, without the consent of the obligors, was such an alteration as avoided it. The principle of law is, that if a stranger, without the privity of the obligee, alters a deed, by interlineation, addition, rasing, or by drawing of a pen through a line or word, in any point not material, it shall not avoid the deed: but if the obligee himself alters the deed, by any of these ways, though it is in words not material, or a stranger does it in a point material, the deed is void. Pigott’s Case, 11 Co. 27. Here the alteration being by persons who were procured to de it by the obligee, the act is his, 10 Mass. Rep. 181, and is, therefore, fatal, even if in a point not material. But the alteration was material: because subscribing witnesses constitute a common and regular part of a deed, and it must be proved by them, 7 Bac. Mr. 456. The adding a seal' to a note which is sufficient without it, will, it is said, destroy the note. Carrol’s Lessee v. Andrews, 2 Sm. Laws, 178. Even if the contract is not changes! by the variation, yet the identity of the instrument is destroyed. Suppose there were originally subscribing witnesses, and the obligee tore offtheir names, or procured it to be done, would it not destroy the instrument? And where, in point of law, is the difference between tearing them off and adding them ? It is important on principles of policy and good morals, that deeds should be preserved •free from any alteration whatever. It is not necessary to constitute forgery, that any person should be actually defrauded: the possibility of fraud is sufficient. 2 Sir. 747. The general intent to defraud is sufficient. 2 Chilt. C. L. 796. The court ought, therefore, to have charged the jury, that the alteration by adding two persons as subscribing witnesses, after the deed had been completed, and without any knowledge of the execution, was such an alteration of the instrument as from that moment rendered it null and void.
    
      Bellas and Bradford, contra, insisted,
    1. That Sally Marshall being the only person who appeared and pleaded, the issue verdict and judgment, all referred to her alone.
    
      2. That there had been no alteration, addition, or erasure in the written instrument. It was complete as a deed, without the names of the two persons which had been placed on the paper: nor were they mentioned therein as witnesses. The names of subscribing witnesses are no part of a deed. In C&. Lit. 35, ten things are mentioned as necessary to constitute a deed, but no attesting by witnesses is mentioned. In 2 Bl. Comm. 307, it is said, that the attestation or executing it in the presence of witnesses, is necessary rather for preserving the evidence, than for constituting the essence of a deed: and that in former times the clerk or scribe added their names in a memorandum. It is plain, that the whole was done through ignorance, and without any intent to defraud either any particular individual or generally. It was done in the presence of G. Gougler, who was about taking an assignment of it. It was properly left by the court to the jury to decide, whether it took place from ignorance and mistake, or from a fraudulent design. On the issue of non est factum, the jury are to judge of rasures, interlineations, &c. Gilb. Ev. (Loffts Ed.) 108. If the name of another obligor be added after sealing and delivery, it does not discharge the first obligor. Ib. 111. If the name of a fictitious person be put to a deed as a subscribing witness, it' does not avoid it, but proof of the handwriting of the party is sufficient. 7 Bac. Ab. 456. 1 Phill. Evid 362. See Peakes N. P. Cas. 23, 146. 3 Esp. Rep. 173. 10 Ves. 474. The bill, therefore, remains just as it was before this mistaken subscription of the names of two other persons.
    
      Reply. In the cases cited, of fictitious names being put as witnesses, the putting of the names was probably the act of both parties at the time of execution.
   The opinion of the court was delivered by

Duncan, J.

The plea of non assumpsit to an action of debt on a sealed instrument, is a novelty. The issue was immaterial. The plaintiff in error, denying the instrument, should have pleaded non est factum. No exception has been made to the judgment on this ground, but as the cause will be sent back, it will be well for the parties to rectify the pleading.

If the execution went out against Peter Marshall, this would be erroneous; but the error in the execution could not affect the judgment. If both were summoned, and only one appeared, and pleaded to the issue, the course would have been to have taken judgment by default against Peter, who did not appear and plead, file the statement against both, and then have proceeded to try the issue tendered by Sally. The proceedings are very irregular, and this should likewise be put right, when the record is returned to the Common Pleas.

The real point in controversy was, whether the addition of the names of two persons in the character of subscribing witnesses, after the execution of the single bill, which witnesses were not present when it was executed before, when it was acknowledged and delivered by the obligors, avoids the instrument.

The objections come before the court in three shapes. 1st, Objections to the proof of the handwriting of the obligors. 2d, Admission of the bill to the jury after that proof; and 3d, In the charge of the court on all the evidence.

The evidence was properly received, the obligee was bound to prove the execution of the bill, and he must first resort to the primary evidence by the subscribing witnesses, even though they1 should disprove the fact. But it would be placing the party too much in the power of corrupt witnesses, who testify against their own attestation, to conclude him from evidence secondary, which then comes in lieu of the primary evidence, and in truth, is equally satisfactory, of the handwriting of the obligor, and the delivery of the bond.

That evidence being received, the bill then is given in evidence to the jury, not as proved actually, for then the court would decide the issue, but is delivered over to the jury to decide.. It is a mistake to suppose, that by permitting it to go in evidence, the fact is taken from the jury. All that the court do, is to say, there is some evidence from which, if the jury believe the witnesses, they may infer the execution, though it is denied by the subscribing witnesses, and all this was decided in Siegfried v. Levan. 6 Serg. & Rawle, 310. For if the execution were proved by subscribing witnesses,' still their credit is to be left to the jury, and the defendant may impeach their credit, either by proof of character or circumstances falsifying the fact of the execution. So, if they testify against it, still the obligee may show, by circum^ stances, that it is in fact the deed of the party, and a pretty strong circumstance is, evidence of his handwriting, and of his own acknowledgments. But the material matter here is, was the subscription of the names of Jacob Clauser and Peter Bistler by mistake, and from ignorance, put to the bill itself, instead of the assignment, and if the fact had been so submitted to the jury, there would be no error. The rigour with which alterations, whether by design or accident, made in writing, were considered as avoiding the instrument, has been much abated.

But certainly, whatever may be the course of modern decisions as to immaterial alterations made by a stranger, the addition of subscribing witnesses to a deed, good without 'them, is a most material and important one,, deeply affecting the interest of the party, as it furnishes of itself a different and distinct medium of proof. This addition is not inoperative, but materially affects the' situation of the parties Why is it that subscribing witnesses are necessarily called to prove the subscription, and that acknowledgments by the obligor will not suffice? Because the subscription is quasi, a part of the deed, and anciently, the subscribing witnesses formed a part of the jury.

If adding a seal to an instrument valid without it, would avoid it, a fortiori, adding the subscription of witnesses would. It is a falsification of a fact material to the parties. If the witnesses die, or remove out of the state, proof of their handwriting will establish the deed. It may respect lands, and the grantee lie by until they are dead, and then come out with his conveyance and proof of their handwriting, and proof of the handwriting is proof of the delivery. It is a most dangerous tampering with written instruments, and this court expressed a strong opinion of the effect of such alterations, where ,the alteration was quite innocent, and stood unaffected by the slightest imputation of fra'ud. Moore v. Lessee of Bickham & West, 4 Binn. 1. There the court say, the insertion of the consideration, the in blank left in the conveyance for that purpose, which Mr. Kidd, the agent, was authorized by the' grantors to fill, the court said, the exception may seem captious, but it is a fatal one. It is not the same deed, and without the consent of alt parties, the most trifling alteration cannot be made. It does not depend on the motive either of guilt or innocence: the alteration renders it void, for it is not the same identical instrument.

The effect of all the determinations is, that-a material alteration in the deed causes it no longer to be the same deed. It cannot be the same deed without subscription of witnesses, as when the subscription was added. The alteration is a representation that the deed was delivered in the presence of the witnesses, and proof of the handwriting is evidence of all the witness professed to attest by his signature. When oyer of a deed is demanded, the witnesses’ naipes are to be given as part of the component parts of the deed, and though not of absolute necessity to create a valid deed, yét is a very important part of the instrument. The bill here was perfect in one form: no alteration or addition to that form could be made unaccompanied by a new delivery. It would be no excuse to say, that this subscription of witnesses could not injure the pax*ty, does not injure him. This seems to have caused the error into wliich the court fell, in their answer to the 6th proposition of the plaintiff in error. It should have been answered positively, and affirmatively, that if Mr. Gougler did cause Clauser and Bistler fo put their names to the bill as witnesses, without the consent, and in the absence of Peter and Sally Marshall, this would avoid it, and the plaintiff could not recover. But the answer is a qualified one; if the jury believed it to be done with a fraudulent intention, with a design to injure them.

It is not on the supposition of fraud,- that the rule is founded with x’espect to deeds. The policy of the law makes them void without any relation to motive in the particular transaction. This tends to prevent a party from attempting to make any alteration. It is a principle founded on good sense. But the addition cannot be purely an innocent act here. It was done to authenticate the instrument in a different foi’m, and I know not any alteration that could be more mischievous. The party shall not take his chance of advantage from this falsification, and when that is detected, resort to another mode of proof, and recover on the original instrument. The latter part of the answer to this proposition was correct, for if the witnesses were called on to attest the assignment, and by mistake put their names as witnesses to the instrument itself, this would not avoid the bill. It was mistake, aceident, which would be relieved against, and the bill set up, by proof of handwriting of obligors. I have endeavoured to construe the charge of the court as if it was so left to the jury, but I fear this cannot be done without injury to the plaintiffs in error, for the jux-y might, from the expression of the court, “ if done with fraudulent intention,” conclude, that if there was no design to defraud the obligors, and the debt was a just one, the plaintiff was entitled to-i’ecover. But such is not the law, for whether there was design to defraud or not, however the act might be done in ignorance and in innocence, still this falsified authentication of the instrument would avoid it.

This case rested on one single point: did the witnesses put their names to the original bill by the procurement of the obligee in the absence of the obligors without their x-edelivery, or did they intend to put their names to the assignment, to authenticate that, and by their own mistake, or the mistake of the obligee, put it- to that which they never designed to attest, or lend their names to authenticate. In the latter case, the plaintiff was entitled to recover, the obligation was not rendered void. In the first ease, it was void, and there could be no recovery on it.

reversed and venire de novo awarded,  