
    Inhabitants of Readfield versus Henry J. Shaver & als.
    
    Where a town .voted to accept a collector’s bond if signed by certain sureties, and a bond was prepared with the names of the proposed sureties inserted in it, but, after a part of them had signed, one refused, and his name was erased, after which the remaining sureties placed their names to the bond: — in a suit on the bond against the collector and his sureties, for a default of the collector, the verdict of a jury against the defendants will not be disturbed, although the evidence was conflicting, as to whether the co-sureties, who signed before the .erasure of one of the names, consented to the change or not.
    Instructions to the jury, that if any surety signed the bond upon the condition that all whose names were accepted by the town should sign, otherwise the bond should not be delivered, such surety would not be liable, if all did not sign, unless he subsequently waived the condition ; but that if, without that condition, he signed for the purpose of indemnifying the town for any breach of duty by the collector, and the bond was left to be delivered and used for that purpose, and was so delivered, the surety would be bound, notwithstanding he may have expected, when he signed it, that all would become sureties whose names were accepted by the town, — were not objectionable.
    A party who signs an instrument which creates a liability is ordinarily presumed to know all its contents, if no fraud is practised upon him; but if a surety signed a bond after one of the names accepted by the town had been erased, it is immaterial whether he knew it or not, if he did not annex to his act the condition that the bond was not to be delivered until all those accepted by the town had signed.
    The neglect of the municipal officers to enforce the collection and paying over of the money until some time after the year was out, or to take the tax-bills from the collector, did not release the sureties on the collector’s bond.
    
      Where a person was collector of taxes for two successive years, and at the end of the second year proved to be a defaulter, he had a right to appropriate payments made by him to the town to either year, at the time he made each payment; if he failed so to appropriate them, the town might appropriate them as they desired; and, if no appropriation was made by either, the law would appropriate such payments to the oldest debts, although the whole deficit is thereby made to fall on the second year.
    Where a person was collector of taxes for two successive years, and the sureties on his official bond were not the same the second year as the first, in a suit on one of the bonds for an alleged default, it is for the defendants to show what part of the deficit belonged to each year.
    Where the clerk, in preparing a blank verdict for the jury, made a mistake in the name of one of the defendants, and the error escaped the notice of the jury, it may be amended by the Court, after the return of their verdict, so as to conform to the writ and other papers in the case, the jury being present, and affirming the verdict as amended.
    Exceptions from the ruling of May, J.
    This was an action on the bond of Henry J. Shaver, collector of taxes in the town of Beadfield for the year 1857, as principal, and Asa Gile and others, as sureties.
    It was in evidence that Shaver was collector of taxes for 1856 and 1857. In 1856, he gave a bond which was accepted by the town. In 1857, he offered as sureties the names of the same persons as the preceding year, except one, and the town voted to accept them. Evidence was introduced by the plaintiffs to prove the execution of the bond. It appeared that after several of the sureties had signed it, one of those whose names had been accepted by the town refused to become a surety, and his name, which had been inserted in the bond, was erased by one of the sureties who had already signed. There was conflicting testimony as to whether those who signed the bond before and after the erasure was made, were notified of the erasure, and assented thereto.
    After the bond was executed by all the defendants, it was handed to one of the selectmen, was seen by all or a majority of the board, and by one of them filed away.
    In August, 1858, it was discovered that Shaver had not paid over all that he had collected on the tax bills, and in October, the selectmen made a settlement with him, and, after allowing Ms payments and all uncollected taxes, found Mm in debt to the town in the sum of $495,93. It did not appear that they made any attempt to ascertain what proportion of the deficit belonged to each year.
    The instructions given by the presiding Judge, to the jury, and also various instructions requested by the counsel for the defendants, so far as they are important to the case, are stated in the opinion of the Court.
    . When the case was given to the jury, the clerk gave them a blank verdict, in which was written at the beginning, "Inhabitants of Readfield v. William J. Shaver & als.” The jury were in their room when the Court adjourned for the night, and sealed up their verdict, and handed it into Court the next morning. The clerk read it to the jury, and they affirmed it. But immediately afterwards, and before the jury had left their seats, the clerk discovered the error, and the Court allowed the verdict to be amended by striking out the word William, and inserting Henry, this being in accordance with the writ and docket; and the verdict, as so' amended in form, was again affirmed by the jury before they separated. The verdict was against the defendants for the sum of $588,67.
    The defendants filed exceptions to the rulings and instructions of the Court, and also moved to set. aside the verdict as against the weight of evidence, against law and the instructions of the Court, and on account of the amendment allowed to be made after the verdict was returned.
    
      Vose & Vose, for the plaintiffs.
    The clerical error in the verdict was rightfully amendable. Sank v. Conolly, 1 Hill, 209; 1 Salk., 47, 53; Cro. Car., 144, 338 ; Little v. Larrabee, 2 Grreenl., 38, and cases cited; 1 Bacon’s Abr., 164, 165; Roll. Abr., 337; Root v. Sherwood, 6 Johns., 69.
    The instructions requested, as to waiver of the condition that all the sureties accepted by the town should sign, were substantially given, so far as the defendants had a right to have them given. It was for the jury, not the Court, to determine what constituted a waiver of the condition on the part of any of the sureties.
    The statute with regard to the acceptance of official bonds by municipal officers docs not require a definite official act or vote. Evidence of the approval of the bond by the majority of the board in any form is sufficient. The giving out of the tax-bills to the collector was evidence that his bond had been approved.
    Where neither the collector nor the town appropriated the payments made by him to either year, the law appropriates them to pay the earliest charges against him; and the balance for each year, except the last, being thus extinguished, the town may recover the final balance against him in an action on the last year’s bond. Sandwich v. Fish, 2 Gray, 298 ; Milliken v. Tufts, 31 Maine, 497 ; U. States v. Kirkpatrick, 9 Wheat., 737 ; Colerain v. Bell, 9 Met., 499.
    
      J. Baker, for the defendants.
    This action is on a bond against the principal and ten sureties. It is a joint action, and, if any one of the defendants is not liable, none of them can be held.
    At the town meeting, the ten sureties all consented to sign the bond, if all would become sureties who were so the preceding year, except Hayward. The signing afterwards was in pursuance of this agreement. The evidence shows that, at the time of signing, some of the sureties insisted on this condition. These facts should have led the jury to find for the defendants, and would have had that effect, but for the erroneous instructions of the Court.
    The bond, if executed without condition, was never properly delivered. There must be an intention on the part of the parties to the bond, to deliver it as an executed instrument, in order for the delivery to be valid. But, here, all the sureties swear that they did not consent that this should be delivered as their bond until all had signed. They each delivered it to Shaver to have the execution completed, and not to be delivered to the town until that was done.
    
      The bond, if delivered, was never legally approved. 'It does not appear that any action was taken upon it by the selectmen, nor that it was examined by more than one of them. The giving out of the tax bills has no tendency to show that the selectmen approved the bond. It is the assessors who give out the tax bills.
    In March, 1858, the balance of taxes in Shaver’s hands was,' by his warrant, to be paid to the town, yet he was suffered to go on until October, eight months after, without a settlement. If the bond was valid, the • town had lost its right to recover by its own neglect. U. 8. v. Kirkpatrick, 6 Curtis’ Dig., 214.
    The instruction given, as to the appropriation of payments, was erroneous. The sureties on the bond of 1857 are liable only for the deficit of that year. The law appropriates the money where it equitably belongs, in a case like, this.
    ■ But, by bringing suits on the bonds, both for 1856 and 1857, the town did make an appropriation. The town had the means of showing how much was the deficit of each year, and it was for them to do it. Starret v. Barber, 20 Maine, 457.
    The jury erred in their verdict, in allowing interest on the amount of deficit prior to the settlement in October, 1858. At that time, the selectmen found what was due, and prior interest must have been included or waived. In so much the damages were excessive.
    The alteration of the verdict, after the separation of the jury, was unauthorized.
   The opinion of the Court was drawn up by

Tenney, C. J.

This suit is upon a sealed instrument, purporting to be the official bond of Henry J. Shaver, as the collector of taxes of the town of Readfield, for the municipal year 1857, and his sureties. The sureties deny their liability, on the ground that they consented to be the sureties of the collector solely on the condition that the bond should be executed by those whose names appear thereon, together with Moses Whittier, who refused to become a party, after his name had been inserted in the body of the bond by the scrivener, who drew'the instrument, the said Whittier and the other persons whose names were inserted, having been deemed sufficient, by the town, expressed by a vote in open town meeting.

Evidence was introduced to show that, after the principal and three of the sureties had signed their names, on its being ascertained that Whittier declined to place his name upon the bond as a surety, his name was erased from the body thereof, and subsequently the other sureties added their signatures.

The great questions in the ease were whether the sureties, who executed the bond before the erasure of the name of Whittier, had consented to bo holden by word or act, or both, after they had been informed that he had refused to become a surety; and whether those who affixed their names to the instrument afterwards did it under such circumstances as to render them liable ; and also whether the bond, if executed, so that the obligors could make no objection to the execution, had been approved by the selectmen, according to law, and delivered so as to become effectmñ. The evidence on these questions was not in harmony, one portion with another. But, under the instructions given to the jury by the presiding judge, a verdict was rendered for the plaintiffs, which is sought to be vacated on a motion, because it was against the evidence adduced and for other reasons stated in the motion. The conclusion of the Court is, that the verdict cannot be disturbed on the motion, consistently with the principles well settled applicable to the facts of the case.

The question is then presented, whether the Court erred in any of the rules of law, which it stated to the jury, or whether it erroneously withheld any instructions which were requested by the defendants, to be given to the jury, in matters of law.

The counsel in defence requested that twelve instructions, reduced to writing, should be given to the jury; five of which, the first, third, fourth, fifth, and seventh were given as requested; the others were refused, given with qualifica-' tions, or were embraced in the general instructions.

The second requested instruction was, "that, to constitute such a waiver of the condition,” [that'all whose names were in the body of the bond should execute it.according to the evidence, which was not in controversy,] "the party must be informed that Whittier was not to sign; and consent that it should be delivered as his bond without his name.” This request assumes that the party could be legally holdeu only by express consent, given upon, information, that the one whose name was erased was not to become a surety. The general instructions were substantially as follows : — That if any or all of .the sureties, whose names were on the bond, placed them there with the condition before stated, and that the bond should not be delivered, without the fulfilment of that condition, it would not be binding on them, unless they waived that condition subsequently. But if they signed the bond without any condition, but for the purpose of indemnifying the town for any omission of official duty of the principal, and the bond was left to be delivered and used for the purpose for which it was signed, and it was so delivered, the delivery would be valid and the signers would be bound, notwithstanding at the time of its execution they might have expected that all who were accepted by a vote of the town, would become sureties on the bond. These instructions are more comprehensive than the one requested, which we are considering, and were not objectionable ; and were all under the request to which defendants were entitled.

The last instruction requested had relation to the execution of the bond by those who affixed their names thereto, after the erasure of the name of Whittier in the body thereof, and was, "If any of the sureties signed the bond in pursuance of the agreement made at the town meeting, after the erasure of Whittier’s name, but without knowing it, or knowing that he was not to sign, and, at the time of signing, annexed the condition that it should not he delivered without all signed whose names were accepted by the town, they would not be held.” This instruction was not given.

When a party executes an instrument, which, from its terms, creates a liability, he is ordinarily supposed to know its contents and every thing apparent upon it, and affected accordingly, if no fraud was practised upon him, which in this case is not pretended. But whether a surety, in fact, signed the bond after the erasure, or a knowledge that Whittier was not to sign, or otherwise, is a question wholly immaterial under this request, as the general instructions, to which we have referred, embrace the case supposed, whether this knowledge existed or not; and the liability was made to depend upon the fact, that the sureties who signed, did not annex the condition, that the bond was not to be delivered till it was signed by all whose names were on the list accepted by the town.

The sixth and seventh instructions requested were not given in the terms of the reqtiest, but were in substance a compliance therewith.

The -eighth and ninth instructions requested, that if the jury find that the officers of the town neglected to enforce a collection of the taxes, and the paying over the money on the part of Shaver, to Oct. 23, 1858, or to take the tax bills from him, this would be such laches on the part of the town, as would release the sureties from all liabilities for defalcation subsequent to the time when said officers were legally required to do so. And that that time was when the year was out, March, 1858. Such instructions have no statute or common law principle for their support.

The tenth and eleventh requests were, that the jury might be instructed that the plaintiffs can .only recover damages for what they prove were actual deficits of the tax of 1857 ; and that the burden is on the plaintiffs to show what part, if any, of the sum of §495,93, said to be due on the two years, was in fact a deficit of 1857, and they can recover only so far as they show that. These instructions were given, with the qualification, that if Shaver was collector for the years 1856 and 1857, it was his duty to settle and pay over for both of those years, and he had a right to appropriate all payments made during the second year, at the time they were made, to the year to which he wished them applied. If he failed to make such appropriation, then the town would have the right to appropriate such payments as they might desire; and, if no appropriation was made by either, the law would appropriate such payments to the oldest debts. If payments were made when there was only one liability, and that for the year 1856, in the absence of any appropriation by the parties, the law would apply them to that year; so that, if the parties made no appropriation, in this case, the whole of the deficit of the sum of $495,93 might be regarded as having occurred during the last year, and, if so, would be recoverable in this suit, with interest from the time it ought to have been paid.

It was proved that, about Oct. 23, 1858, a partial settlement was made with Shaver, in behalf of the town, for the years 1856 and 1857; that there was a balance of the sum of $195,93 on both years, for money collected by him and not paid over; the amount of uncollected taxes taken from him, and he was credited for so much. Amount of uncollected commitment of 1856 was $14,98, and due on the bills. Uncollected taxes of 1857 were $102,43. It was not ascertained how much was the deficit in unpaid collections of the year 1856 or of 1857. There is a suit pending upon the bond of 1856, and the signers are not the same as those upon the bond of 1857.

It was for the defendants to show what part of this deficit belonged to one year and what to the other. The principal on the bonds is supposed to have the means of doing this, by the receipts taken by him, or by other modes. In the absence of all evidence on this question, we cannot assume that either party made the appropriation to one year or the other. Hence the money which he paid from time to time must be treated as his own, and the law will make the appropriation thereof to discharge the liability which first accrued. That being done, and the amount of the collections which arc withheld by the collector being fixed, the liability falls upon the obligors of the bond of 1857. The instructions wore in accordance with this principle.

Exceptions are taken to the amendment of the verdict, allowed by the Court, in changing the name of the principal defendant, so as to conform to the writ and all the papers in the case. This was the correction of the error of the clerk in preparing the blank verdict, which escaped the attention of the jury. The authorities cited for the plaintiffs to sustain the propriety of the amendment of the verdict, for a cause which existed and was apparent, upon inspection by the Court, are full and conclusive.

Motion and exceptions overruled.

Judgment on the verdict.

Rice, Mat, Goodenow, Davis and Kent, JJ., concurred.  