
    Amos S. Warring versus John Williams.
    Where an agreement, signed by three persons, was afterward altered by the consent of two of them, by adding seals to the names of the signers, and interlining the words “jointly and severallyand was afterward delivered by those two, it was held, that the alteration did not vitiate the instrument with regard to those two, but that they were bound by the instrument in its altered form.
    A and B having been partners, A gave an obligation to B to indemnify B against a note on which C was promisor, C having become so merely as surety for A and B j C afterwards advanced money to B, with which B paid the note. Heldt that A was liable to B on the obligation, for the amount of the note paid by B.
    This was an action of debt upon an agreement declared on as being under seal and as made jointly and severally by the defendant and Elijah K. Williams and King Williams. The breach alleged was the non-payment of certain promissory notes due from the company of Warring & Williams to Sylvanus Foot, and a small debt due to Cyrus Williams, which notes and debt have been paid by the plaintiff.
    The defendant pleaded non est factum, and that the plaintiff had been indemnified according to the tenor of the agreement. Issue was joined on these pleas. The case was tried before Parker C. J.
    On the first issue, the positions taken by the defendant weie, that the writing was not sealed when it was delivered, and that the words “jointly and severally ” were interlined after the delivery, and without the knowledge or consent of the persons who signed the instrument.
    Charles T. Williams, the subscribing witness, testified, that according to his impression, when he signed, only the names of John Williams and King Williams were on the instrument ; that Elijah K. Williams was present, but had not then signed his name ; that there were then no seals, nor any thing said about them ; and that the words “ jointly and severally ” were not in the instrument. He also testified, that after signing his name, he left the room, the paper remaining on the table, not having been delivered ; the plaintiff, with John and Elijah K Williams and Joseph Seelye, continuing in the room.
    Elijah K. Williams, being released by the defendant, testified, that there were no seals on the instrument while he was present, and that the words “ jointly and severally ” were riot in ; but that the plaintiff observed that the obligation ought to be joint and several, and wished the words to be inserted ; to which the witness did not object, or consent; but the defendant did object, saying that he would consent to no alteration which would change the legal effect of the instrument.
    It appeared that King Williams was not present at the meeting mentioned by the witnesses, but had previously signed his name in blank on the paper, before the instrument was drawn, with the intention to join the other parties, who were his brothers, in an indemnity to the plaintiff; no particular form having been agreed on.
    The words interlined were proved to be in the handwriting of Charles G. Williams (a brother of the defendant), who drew the whole instrument.
    Other evidence was in the case, some parts of it having a tendency to prove, and other parts to disprove, the contested facts of sealing and interlining before the delivery.
    The jury were instructed, that if they believed from the evidence, connected with the appearance of the instrument itself, that seals were put to it and the words interlined before the final delivery to Warring, the first issue must be found for the plaintiff; that they might presume an authority from King Williams, who had signed in blank, to the co-obligors, to put a seal to his name ; but whether the instrument was King’s deed or not, if they were satisfied that the seal affixed to the defendant’s name was placed there by himself or by his consent, he being present, the issue ought to be found for the plaintiff; that if the writing was altered, with the consent of any one of the signers, by adding seals, and interlining the words “ jointly and severally,” the obligation would be valid against the one thus consenting, although there was no evidence of the consent of the others.
    In regard to the other issue, there was evidence to prove that the debts were actually paid by the plaintiff, but there was also evidence tending to show, that in paying the debt to Foot, he was the agent of Joseph Seelye, who had signed the notes held by Foot, and it was contended that Seelye had assumed that debt as part of the consideration for his purchase of certain property from Warring & Williams on the dissolution of tneir partnership. The jury were instructed, that if the plaintiff had paid the money on his own account, though he might have received the money from Seelye, he was entitled to récover. The defendant’s counsel insisted, that as Seelye had signed the note to Foot, and so was obliged to pay that debt, if he advanced the money to Warring for the purpose of paying Foot, the payment should be considered as Seelye’s, and therefore that the plaintiff could not recover ; but the jury were instiucted, that if they were satisfied that Seelye had not assumed that debt as part of the consideration of his purchase, but had only advanced the money to Warring to pay it, although See-lye was liable on the note, yet if, in point of fact, he was only surety for Warring & Williams, Warring, being liable to him, was entitled to recover.
    A verdict was found for the plaintiff on both issues ; on which judgment was to be rendered, unless the ruling and opinions of the judge were wrong.
    
      Sept. 9th.
    
    
      C. J?. Dewey, for the defendant,
    contended that the alteratian of the instrument with the consent of one obligor, without the consent of all, avoided it totally, even with regard to the one consenting. King Williams never consented to this alteration by adding the words “ jointly and severally.’’ The alteration changed the nature of the obligation, and was of a kind to affect King Williams by making him severally liable for what he was only jointly liable before, and thus entirely vitiated the instrument. It is admitted that any obligor might insert an alteration which would affect himself only, but he cannot insert one which will affect another obligor.
    He also insisted, that as Seelye, who was liable on the note to Foot, furnished the money to pay him, it was a payment by Seelye, and not by the plaintiff.
    
      Dwight and Jones, contra,
    as to the first point made by the defendant, cited Shep. Touch. 71; Burgess v. Merrill, 4 Taunt. 468; Hartness v. Thompson, 5 Johns. R. 160; Woodward v. Newhall, 1 Pick. 500; Matthewson’s case, 5 Coke, 23.
    
      Sept 12th.
   Parker C. J.

delivered the opinion of the Court. The instrument produced by the plaintiff, to prove the issue on the plea of non est factum, purports to be a joint and several obligation of the defendant and two others, with a seal affixed to the name of each ; but the words “jointly and severally ” are not in the body of the deed, except by interlineation ; and the subscribing witness testifies, that at the time of his subscription, these words were not contained in the instrument; nor were there any seals attached to it. The same witness and another testify, that at the time when the instrument was signed by the defendant, it was without seals and without interlineation. The burden of proof was then upon the plaintiff to show, that, before delivery to the plaintiff, the seals were affixed and the interlineations made; 2 otherwise the presumption would be, that the alteration was made by the plaintiff, and being material, the instrument would be void.

There were many circumstances relied upon by the plaintiff to satisfy the jury, that the instrument in its present form was delivered to him as the deed of the defendant and the other obligors. The witnesses who speak of the interlineation and the absence of seals were not present at the delivery. There was' conversation about the necessity of making it a joint and several instrument; and the paper itself would justify the opinion, that seals were placed upon it after the signature and before the delivery. The evidence was sufficient to prove the fact, if the jury had a legal right to draw the inference. The instruction to them was, that if before the delivery, the words “ jointly and severally ” were inserted, and the seals affixed by either of the parties, or by their direction and consent, the party so consenting would be bound, and the instrument would be valid as his deed. The authorities cited in the argument fully bear out this position', and we are satisfied that the instruction was right, and that the issue was rightfully found for the plaintiff.

In regard to the other issue, the ground taken by the defendant cannot be maintained, to wit, that as Seelye was answerable, on his note to Foot, for the debt which is the foundation of the plaintiff’s claim to recover an indemnity, it was a payment by Seelye and not by the plaintiff. Prima facie it would lie ; but it was competent for the plaintiff to show, that the debt was his own, and that Seelye was in truth only his surety; in which case, though Seelye advanced the money to him to pay Foot, the plaintiff was paying his own debt, and was accountable to Seelye for the money. There was evidence to support this position, and it was for the jury to judge upon it. It is not contended that their verdict is against evidence, and the principle upon which it is founded is correct. The judgment must be according to the verdict. 
      
       See Prevost v. Gratz, Peters’s Gire. C. R. 369; Morris v. Vanderen, 1 Dallas, 67; Barrington v. Bank of Washington, 14 Serg. & Rawle, 405 ; Chesley v. Frost, 1 N. Hamp. R. 145; Jackson v. Jacoby, 9 Cowen, 125; Henman v. Dickinson, 5 Bingh. 183; Bayley on Bills (Phil. & Sewall’s 2d edit) 90, 92; Foible v. Smith, in Essex, 1836. Whether the alteration was made before or after the execution of an instrument, and whether made with or without the assent of the adverse party, seem to be questions for the jury. Cumberland Bank. v. Hall, 1 Halsted, 215; Bailey v. Taylor, 11 Connect. R. 531; Heffelfinger v. Shute, 16 Serg. & Rawle, 44; Commissioners v. Hannion, 1 Nott & M‘Cord, 554. See Jackson v. Osborn, 2 Wendell, 555; Emerson v. Murray, 4 N. Hamp. R. 171; Trowrii v. Castle, 1 Keb. 22.
     