
    John Tiernan and others vs. Joseph S. Fenimore.
    One of the sureties in an appeal bond was present at the clerk's office when it was handed to the clerk for his approval, and when it was, with the consent of his surety, taken away to procure another, the first being deemed insufficient 3 another was procured and the bond afterwards filed with the clerk, after which the two procured indemnity from their principal: Held that such a state of facts did not constitute a defence under a plea of non est factum, verified-by affidavit.
    This is a Writ of Error to the Supreme Court of Scioto County.
    
      The defendant in error brought suit upon an appeal bond, signed by Watson, Tiernan & Blake. The plaintiffs in error filed a plea of non esl factum, to the truth of which Tiernan made affidavit, and also a plea of nil debit. The cause was tried by a jury, pending which, a bill of exceptions was taken, and a verdict rendered finding the issue in favor of the defendants below. A motion was made for a new trial, which was overruled and exceptions also taken. From this judgment a writ of error' was prosecuted in the Supreme Court of the county, and errors were assigned,
    1st. That the Court of Common Pleas erred in instructing the jury as prayed for by defendants below.
    2d. In refusing to instruct as requested by plaintiff below.
    3d. In refusing the new trial.
    The cause was heard at the last term in the county, and the judgment of the Common Pleas reversed. The journal entry recites that the cause was reversed for the 1st and 2d errors assigned.
    This writ is prosecuted to reverse the judgment of the Supreme Court; and it is assigned for error that the Supreme Court erred on both points, and also in reversing the judgment of the Common Pleas.
    The bill of exceptions is as follows :
    Be it remembered that on the trial of this cause in the Court of Common Pleas of Scioto county, at the April term, 1846, before a jury, the said plaintiff, to maintain the issue bn his part, produced the bond in the plaintiff’s declaration mentioned, being an appeal bond in the sum of $3,800, given in a case wherein said Fenimore was plaintiff and John Watson was defendant in the the Common Pleas of Scioto county, signed by said Watson, John Tiernan & Plenry Blake. Said bond had also the names of said Watson, Tiernan & Blake, in the body of the instrument, and in it there had been the name of John Clark written, but it was then erased.
    The plaintiff then called to the stand Andrew Crichton, Jr., who testified that he was one of the subscribing witnesses to said bond; that the signature of John Tiernan to said bond is in the hand writing of the said John Tiernan; that the said bond was signed and acknowledged by the said John Watson & Tiernan as their act and deed ; that he thinks that the plaintiff was present and objected to the sufficiency of the said John Tiernan as security ; that the name of John Clark was not in the said bond at the time the same was signed and acknowledged by the said John Watson & John Tiernan ; that the said bond is in the hand writing of him, said witness, and the name of John Clark in said bond was stricken out and the name of Henry Blake inserted by said witness, but witness cannot state what time it was done.
    The said plaintiff then called to the stand John R. Turner as a witness, who testified that he was the Clerk of the Court of Common Pleas of Scioto county aforesaid, and that he was a subscribing witness to the signature of Henry Blake to said bond ; that said bond, in the identical form that it now is, was presented to him as an appeal bond, and by him was approved and filed December 22d, 1837 ; that witness recollects to have required other security upon said bond when it was first presented to him, on account of the supposed insufficiency of said John Tiernan.
    The said plaintiff then offered and read said bond in evidence to the jury.
    The plaintiff then read in evidence the record of the Supreme Court of Scioto county, in the case of Fenimore against Watson, showing the recovery of a judgment by the plaintiff of <$2,191 72 and costs.
    The plaintiff then read in evidence an execution issued upon said judgment, and a return thereon of no goods or chattels, lands or tenements whereon to levy.
    The plaintiff then read in evidence to the jury the record of a mortgage from John Watson to said Tiernan & Blake, upon certain real estate in Portsmouth, to indemnify them as sureties in said appeal bond; copies of all which records, papers, &c., are made part of the bill of exceptions.
    
      The plaintiff then recalled John R. Turner, who further ’ testified, that since the rendition of said judgment in the Supreme Court of Scioto county, Ohio, he had conversations with said John Tiernan, in which said John Tiernan stated to the witness that he expected that the securities of the said John Watson would have to pay the amount of said judgment, that he wished witness not to urge the bringing a suit upon the appeal bond, for that he, the said John Tiernan, was making an arrangement with John Watson; and that the matter would be settled without any further expense, as he was now satisfied the sureties would have to pay .it. It was also admitted that the other subscribing witnesses to said bond, were non-residents of Scioto county, aforesaid.
    And the plaintiff having closed his evidence to the jury, and the defendants not offering any evidence to the jury. The said defendant, by his attorney, moved, the Court to instruct the jury.
    1st. That an alteration or erasure of a bond in a material part after execution by any of the obligors, will render the bond void as to him or them, unless such alteration or erasure was made in the presence and with the assent of the obligor, sought to be charged, or he has given a subsequent assent, under circumstances amounting to a re-delivery of the bond.
    2d. That the erasure of the name of the co-obligor, which was in the bond at the time of the execution and delivery to the Clerk by a party sought to be charged, or the addition of other obligors without his assent, is such a material alteration as will avoid the bond.
    3d. That if the jury believe from the evidence, that the bond on which the suit was brought, was signed and sealed and presented to the Clerk of the Court by the said John Watson and John Tiernan as his security, for his approbation and acceptance of the same, as a bond in appeal, and was by him rejected, the plaintiff in the suit being present and objecting to the reception of said bond; and after such rejection the word between the name of Watson and Tiernan was erased, and the name of John Clark subsequently written and erased, and the name of Henry Blake inserted to the bond so altered and amended, without the knowledge or consent of the said John Tiernan, or in the absence of proof of such knowledge and consent were afterwards approved by said Clerk, that then such erasure and alteration of said bond rendered it void as to said John Tiernan, and the plaintiff cannot recover in this suit.
    4th. That if the jury is satisfied that the bond was executed by Watson and Tiernan, and delivered to the Clerk as the appeal bond in the case, and was- refused and rejected by the Clerk, no subsequent act of either the Clerk or Watson, could make it the bond of Tiernan, unless Tiernan assented thereto, and assented under such circumstances, as to amount to a re-delivery of the bond." Which instructions aforesaid, moved by the said defendant, the Court gave to the jury, and thereupon the plaintiff excepted to said opinion of said Court, giving said aforesaid instructions to the jury. And the said plaintiff, by his attorney, thereupon moved the Court to instruct the jury, that if the jury were satisfied from the evidence that the said bond is signed and sealed with the hands and seals of the obligors, and that no erasure and interlineations had been made therein since the delivery and approval thereof by the Clerk, that the jury must find for the plaintiff. Which said instructions, sought by the plaintiff, the Court refused to give to the jury, and thereupon the plaintiff excepted to such refusal, and prayed the Court that his bill of exceptions as well in regard to the said instructions given, as the instructions aforesaid by the said Court refused, might be allowed, which is accordingly done, and upon his motion the same is allowed, and is ordered to be made a part of the record in this cause.
    
      O. F. Moore and Le Grand Byington, for Plaintiffs in Error.
    C. O. Tracy, for Defendant.
   Birchard, C. J.

It is necessary in order to test the correct- ’ ness of the judgment which we are asked to reverse, to examine the actual state of the facts presented by the bill of exceptions. The bill shows that the following evidence was before the jury, at the time the President Judge of the Common Pleas was called upon to instruct them on matter of law: 1. An appeal bond in form identical with the one declared upon. 2. That the appeal had been prosecuted to effect, and judgment recov ered by the appellee, and the issuing of an execution against appellant and a return of nulla bona thereon.

The only litigated fact in the way of a recovery by Fenimore, concerned the validity of the bond itself. Upon that point the proof was all introduced by the obligee named in the bond. The obligors offered no evidence.

The subscribing witness proved the signature of Tiernan and that the bond was signed and acknowledged by Watson and Tiernan as their act and deed, that the plaintiff was present and objected to the sufficiency of Tiernan as surety. That the name of Clark was not then in the bond, but that the bond was in his, witness’, handwriting, that Clark’s name was written and stricken out, and Blake’s name inserted by him, but at what time he could not state. Turner, the Clerk of the Court of Common Pleas, says, that he witnessed the signature of Blake, that the bond in the identical form that it now is, was presented to him, and by him received, approved and filed as an appeal bond, December, 22, 1837. That when first presented he required other security on account of the supposed insufficiency of Tiernan.

The plaintiff below also offered the certified copy of a mortgage deed from Watson and wife to Tiernan and Blake, dated May, 15, 1841, conditioned to secure the payment of the judgment against Watson, and also to save harmless and indemnify the said Tiernan and Blake of and from all damages and costs, by reason of their having become thé security of the said John Watson, upon the appeal of the said suit from the Scioto Common Pleas to the Supreme Court. Turner being again called, testified that after the rendition of the judgment in the Supreme Court, in a conversation he had with Tiernan, he stated to the witness that he expected the securities of the said John would have to pay the amount of said judgment, that he wished witness not to urge the bringing of a suit upon the appeal bond, that he, Tiernan, was making arrangement with Watson and the matter would be settled without any further expense, as he was now satisfied the securities would have to pay it.

Upon this state of the evidence, under the charge of the Court, the jury found a verdict for the defendants, and the Court, when requested, refused to grant a new trial. Did the Court err? The paramount object of all Courts is to render exact justice, as between the parties litigant. This should be effected in all cases without any departure in the application of principles from established law, for any such departure renders the law uncertain, and whatever tends to such uncertainty, tends also to render every man’s rights unsafe. Upon these facts, in evidence, it appears to us there was no reason why the plainliff below should not have had a verdict and judgment for the amount due in equity upon the appeal bond. Tiernan first offered to become sole security for the appeal, was present when the Clerk of the Court refused to receive him without an additional security; stood by in silence and allowed the bond to be taken away for the purpose of procuring an additional security, who would be satisfactory to the Clerk. After that security was obtained and the appeal perfected according to his original intention, we next find him looking to his own indemnity, by taking a mortgage, reciting that he and Blake were securities on this very obligation. And finally he intercedes with the Clerk for delay, on the ground that he and his co-security must eventually pay the judgment.

A verdict returned in the face of such evidence in our opinion ought not to stand. And because the Court of Common Pleas refused to set it aside and grant a new trial, their judgment was rightly reversed.

But it is said that the Court acted upon erroneous views and gave wr0DS reasons upon the circuit for the reversal of that judgment. That may or may not have been the case. I know not how that fact is. The judges who held the Court upon the circuit recollect that their views of the case were then in accordance with our present views, yet the Clerk of the Court in certifying under the statute, the causes of reversal, has stated the finding to be that there was error as alleged in the first two assignments of error, omitting the third.

The entry in this particular is probably an oversight either of the clerk or counsel in making up the journal. And it is not improbable that remarks may have fallen from the judge delivering the opinion which contributed thereto. The instructions given to the jury by the Court of Common Pleas were a proper subject of comment, when viewed in connection with the facts of the case. Take for instance the first instruction, “ That an alteration or erasure of a bond in a material part after execution, by any of the obligors would render the bond void as to him unless such alteration or erasure was made in the presence and with the assent of the obligor sought to be charged, or he has given a subsequent assent amounting to a re-delivery of the bond. As an abstract proposition this may be good law. Still if rightly understood it was not a principle applicable to the facts. It would have been as well to omit giving it, and wrong to give it as a principle that might control their verdict. If the Court intended the jury should receive it as strictly applicable to the facts in evidence, the Court did not half perform its duty, for in that aspect it would tend to mislead nine persons out of ten. The phrase “after execution by any of the obligors ” in common parlance means after the signing of the bond. A jury under this charge would naturally so infer. In a legal sense the word execution implies signing, sealing and delivering. It is the delivery which completes the execution and gives validity to a deed.

Now the proof showed that there was no delivery before the insertion of Blake’s name. Delivery had been tendered in Tiernan’s presence, and the clerk refused to accept it and required further security. If this was the fact, (and that jury would have so found if they had been made fully to prehend the law of the case, there can scarce be a doubt,) then the Court should have told them that, if the bond was thus taken from the clerk’s office in order that Blake’s or some other person’s name might be inserted, who would be satisfactory to the clerk, and Tiernan stood by, and by silence expressed his assent, it was a matter of no moment whether he was present or not when the insertion of Blake’s name was made. That in law he should be deemed to have authorized the insertion of the name and the subsequent delivery of the bond to the clerk. When this abstract proposition was presented to the Court, and claimed to be the legal proposition upon which the merits of the defence turned, it would have been proper, and we think the Court should have called the attention of the jury to the evidence, and submitted to them to find whether the recitals of the mortgage deed the conversations proven by Turner, connected with his conduct when the bond was first offered and rejected, did not show that the bond as finally filled up, was delivered with Tiernan’s assent, and if so that they should find for the plaintiff.

The second, third and fourth propositions given in charge to the jury, are such that what has been said in reference to the first, is applicable to them. They are abstract propositions, artfully worded, and although they may be, in a legal sense, very good law, when understood and applied by legal minds to a state of facts to which they would be applicable, yet therewas very little in the proof to call for the instructions, and being given as propositions governing their finding without such explanations as would show the jury how little bearing they had upop the true merits of the defence, sufficiently accounts to us for an erroneous verdict.

Judgment affirmed.  