
    Lodge vs. Boone.
    Appeal from Montgomery County Court, from a judgment of nonsuit in an action of assumpsit for money had and received. Non assumpsit and limitations were pleaded. At the trial the plaintiff, (now appellant,) offered in evidence, that the defendant, about eight or ten years ago, obtained a warrant against him the plaintiff) that they both appeared before a justice of the peace for Montgomery county, to whom the warrant was returned, and before whom a trial was then had between the plaintiff and defendant, upon which trial the defendant claimed of the plaintiff,^! 8. This claim was made against the plaintiff, as security of a certain John Ball, in four bonds — The first in the name of, and executed by, John Ball, Henry O’Nealc, (the plaintiff’s name first inserted and afterwards stricken out, and Henry O’Neale's. name inserted,) and John O’Neale, to Isaiah Boone, (the defendant,) dated the 12th ol June 1797, reciting a judgment obtained by Boone against Ball, in Montgomery county court, in an action of debt, to be released on payment of £22 IQ Q, with inferest from 1st Nov. 1792, and from which judgment Ball bad prayed an appeal to the said court as a court of equity. The bond was conditioned to pay such suvn a®, the said court should adjudge, &c. 'Die witnesses to, the bond were William O’Neale jnn. William Bay juq. Basil Peck* with, and Samuel Dyson. The other bonds were execut - ed as the first, and for die same purpose, upon other judgments in other actions of debt, for sums of the same ainount, with interest from difi'erent periods. They were executed and witnessed by the same persons as the first bond. That upon the said trial, the magistrate declared that ha considered the plaintiff liable to pay the defendant the a* mount of his claim on the bonds aforesaid, and upon the magistrate’s expressing this opinion, the plaintiff paid the amount of the claim to the defendant" The plaintiff also offered in evidence, that in March 1806, in a conversation between himself and the defendant, he told the defendant that he ought not to have paid him the money, as he had found that he was not in the bonds, (alluding to the bonds above mentioned,) and that the defendant said, that if that was the case he must repay him the money. lie also offered in evidence, that the name William Bodge, signed to the said bonds, was erased and obliterated. It was admitted that'the name signed William T.odge, was in the proper handwriting of the plaintiff, and that the bonds bad continued in the custody of the clerk .ever since the injunction was granted. The defendant then offered in evidence the four bonds referred to by the plaintiff, and pvoved by William O’Neale, junior, the subscribing witness to them, that he signed the same as a witness. He further gave in evidence the declaration of the plaintiff, made at different times, that he had signed the bonds as one of the obligors, and was liable to pay the defendant his proportion thereof; and further, that on the trial before the magistrate, in which the bonds were the foundation of the warrant, by the defendant against the plaintiff, long after the bonds were filed in court, and after the injunction was dissolved, the plaintiff did then acknowledge he was liable to pay to the defendant one half of the money arising on the costs secured by such bonds. He further offered evidence to prove, that the plaintiff was a connexion, by marriage, of Ball’s wife, and acted as their agent in the suits between Boone, the defendant, and Ball. It was admitted that Henry O’Neale and John O’Neale, whose names appear to be signed to the bonds, were the brothers of Bail’s wife, and the name John O’Neale, subscribed as an obligor to each of the four bonds, was in the band-writing of the said William O’Neale, the subscribing witness. The said William O’Neale, junior, also proved, that ■ he did not recollect any thing about the execution of the bonds, and that he did not remember ever to have seen them, until a year or eighteen months before he was sworn on this trial. The plaintiff then prayed the opinion of the court to the jury,. that if the jury should find from the evidence that he the plaintiff' did sign and seal the bonds aforesaid, but that his name was erased therefrom before .the delivery thereof to the clerk of Montgomery county, and before the injunction was granted by the court, and that the-bonds were approved, and the injunction granted by the court, as the bonds of Ball and the two O’Neale’s, whose names were signed thereto, then the defendant had no right to recover of him the plaintiff' the £18 aforesaid. But the Court, [Chase, Ch. J. and Hanvood, A. J.] refused to give this direction, being of opinion, and so directing the jury, that if they find, on the whole of the evidence produced, that the plaintiff did sign, seal and deliver, the , bonds, before the razures appearing on the bonds were made, and that the razures were not made by the obligee, or with his privity or consent, and that the bonds were not In tbe custody and keeping of (he obligee subsequent fo the delivery thereof, (bat 1heu the plaintiff cannot recover in this action. The plaintiff excepted; and the verdict anti judgment being against him, he appealed to this court.
    
      “L entered into an injunction bond, together wbh O. as the sureties of ,1, to stay proceed» lugs on «.judgment recovered against ,T by B, which bond was signed and sealed by L, but hi* name was afterwards erased,and. the name of H substituted in its placo: On tin* dissolution of the injunct* fcmn, a warrant from a justice of the peace was obtained on the bond by B ag.iimr L, and the justice expressing his opinion, that L was bound to pay V,’s claim on the bond, L paid the money, and after'’ wards brought an action of assumpsit .for money had a-ul received, agaiu>t B, to recover it back— "iWeld, that it L did sign and seal the bond, but that his name was erased therefrom before the delivery thereof to the clerk of the court, and before the injunction was granted by the court, and that the bond was approved, and the injunction was granted as the bond of.!, H and O, then B had no right to recover the before mentioned money of L, and that L was entitled to recover the money back*
    
      The ceuse was argued before Folk, Buchanan, and Nicholson, J. by
    
      Taney, for the Appellant
      ;
    
    and by
    
      F. S. Key, for the Appellee.
    
      
       He referred to O'Neale vs. Long, 4 Cranch, 60, and The State case Sim vs. Oden, 2 Harr. & Johns. 108, (note.)
      
    
   JUDGMENT REVERSED, AND PROCEDENDO AWARDED.  