deed, and changing its original obligation. It is no objection, that to constitute a new deed, a redelivery is necessary; for if it be so, the consent to the alteration is, in law, equivalent to a redelivery. Nor is it necessary that a surrender or revocation should be by an instrument to that effect. It may be by matter in pais, or by operation of law. Every erasure and interlineation in the deed, by the obligee or appointee, without consent, is a surrender; and a revocation may be implied by law. The passage cited at the bar, from Co. Lit., 232, (a), establishes, that if the feoffee, by deed of land, grants his deed by parol to the feoffer, it is a surrender of the property, as well as of the deed. And if, in this case, the deed of appointment had been delivered up to the collector, it would, at once, have operated as a surrender by the deputy, and a revocation by the collector.

An objection has been urged at the bar, against this doctrine, that the act of Congress, giving the authority to the collector to appoint deputies, also authorizes him "to revoke the powers of any deputy, giving public notice thereof in that portion of the district assigned to such deputy." Hence it is argued that no revocation can be, unless by public notice. But this is certainly not the true interpretation of the act. The very terms suppose that the revocation is already made, as between the parties, and the notice is to be given of the fact. The object 710*] of the legislature was, *to protect the public from the mischief of payments to the deputy after his powers are revoked. It requires public notice to be given of the revocation, so that no future imposition shall be practiced; and if the collector should make a private revocation, without any public notice, the legal conclusion would be, that all pay ments made to his deputy, in ignorance of the revocation, ought to be held valid; for no man is entitled to make his own wrongful omission of duty a foundation of right. But, as between the parties, a revocation or surrender, if actually made, would be, to all intents and purposes, binding between them, and release the sureties to the bond from all future responsibility.

Upon the whole, the opinion of the court is, that the fourth plea in bar is good, and that the demurrer thereto ought to be overruled; and this opinion is to be certified to the Circuit Court.

Mr. Justice Johnson. My brother Todd, and myself, are of opinion that the merits of this cause have been misconceived, the points on which it turns misapprehended, and the law of rasures, if correctly laid down accord ing to the law of the present day, erroneously applied to this cause.

in him by the laws of the United States, appointed U. deputy-collector," etc. It is the plea that specifies a deed of a particular date, and then proceeds to set forth a rasure in avoidance of that deed, but it contains no averment that the deed so set forth is the same under which U. held the deputation under the plaintiff, referred to in the condition. That the plea is faulty, and, even with the averment, might have been the subject of a special demurrer, cannot now be doubted; for it amounts to the general issue; and the general issue was the legitimate plea in this case. Pigot's case, and passim. But, we also hold it bad, in its present form, upon a general demurrer; for, unless the deed, so pleaded, was duly identified by the pleadings, with that under which Ustick was constituted deputy, the plaintiff was not bound to answer it. We cannot conceive how the defendant can have judgment in the present state of the pleadings, unless under the idea that the demurrer cures the failure to identify the deeds. This, however, cannot be sustained, since the want of identification is, in itself, a sufficient ground of demurrer.

Indeed, we see no sufficient ground for admitting that the condition of the bond implies a deputation by deed at all. It is true, that the 20th section of the act under which this collector was appointed, authorizes him to appoint deputies, under his hand and seal; and, as far as was necessary to enable the deputy to act against individuals, unquestionably the solemnities of a deed were requisite [*712 to constitute him a deputy-collector. But the demand in this action is for money received by him, and not paid over; and, surely, a deputation of a less formal kind would have enabled him to bind his principal as to the actual receipt of money; so that the words of the condition do not necessarily imply a deputation by deed. He is expressly authorized, in this 20th section, to act for himself in collecting the revenue, and he could, therefore, act by his servant or deputy, constituted in a less solemn way than by deed, so far as to involve himself with the government.

But if a deed is to be implied from the condition, surely not this particular deed; and though a deed, of a date antecedent to the bond, is to be implied, it may have preceded it by a month, and yet the act and the condition of the bond both be complied with. But what form shall be presumed or implied to the deed? Why may it not have been several as to each county, or have comprised two or more? and why may not a dozen deeds, of the very date and form of this, have been in existence at the same time? A defendant who, like the present, places his defense upon the very highest stretch of legal rigor, cannot complain, if he has the same measure meted

the parties here, than the distinction of the power of Ustick, as to the eight counties, at the time of this interlineation. The plea avers no such intent, and as well might a delivery of a deed for perusal be tortured into a surrender and extinction of it, and its return into a revocation, as the acts of these parties respecting this interlineation be construed into a revocation and redelivery. Non constat, from anything that appears in the plea, that the paper ever passed from the hands of the party legally holding it. It was unnecessary, upon the facts stated, that it should so pass; in fact, no delivery is averred, in the plea, nor any one of the formalities necessary to re-execution. It cannot be denied that this part of the defense savors too much of a perversion of the solemnities and rules of the law. It is a catch upon the unwary, an effort to attach to men's acts consequences which are directly negatived by their intentions.

As to the idea of the identity of this instrument being destroyed by the interlineation, we consider it as springing out of an incorrect view of the nature of the instrument and of the circumstances that fix its identity. It is not one entire thing, but a several deed for each county. A deputation as to the county of A, is not a deputation as to the county of B, although written on the same paper, and comprised within the same words; it is as much a several deed, as to each county, as if 714*] written *on several sheets of paper: as much as a policy of insurance is the several contract of each underwriter, or as a bond would be the several deed of as many individuals as executed it, if it be so expressed, making them, if such be the letter of it, severally liable, and for various sums, no one for another. Interlining another county, then, left it still the original deed, as to each county taken severally, and only operated as the creation of a new power as to another county, if, in fact, as there is no averment of a subsequent delivery, it was anything more than a mere nugatory act. Such is certainly the good sense of the law upon the subject; and it is supported, we conceive, by respectable opinions, and by adjudged cases. Chief Baron Gilbert, in treating on this topic, observes, "but if any immaterial part of the contract be added after sealing and delivery, as, if A, with a blank left after his name, be bound to B, and after C is added as a joint obligor, this does not avoid the bond, because this does not alter the contract of A; for he was bound to pay the whole money without such addition." And the case of Zouch v. Clay, which he quotes, as reported in Ventris, undoubtedly sustains his doctrine; for there the court overruled the plea of non est factum on the interlineation, on the ground that the bond remained the same as to him.

In this case, the bond emphatically remained 715*] *the same as to this defendant, for he was still liable only as to the eight counties, and no more; and was so guarded, as to make it impossible that the interlineation of a thousand other counties could alter or increase his liability, since the names of the counties are

1.-1 Loft's Gilb. 111; Ventris, 185; the note at

inserted in the condition specifically. As to his liability, and as to its influence upon the power conferred in the eight counties, this interlineation was altogether insignificant, no more than a dash of the pen, and could have done him no more injury.

There is nothing in the argument which would attach importance to it, on the ground of producing difficulty and confusion-it has been said, even impracticability, in rendering the accounts of this deputy. It is begging the question, and urging the very thing as a difficulty, which the plaintiff proffers to execute. He claims a sum collected in the eight counties specified, and no more; and unless he can prove so much collected in the eight original counties, it is very clear that he cannot have a verdict. But is he to be prejudged? is he not to be permitted to make out the case which he offers to prove?

Nor is there any more weight in the argument, that, "although the defendant may have been willing to indemnify against eight counties, it does not follow that he would undertake to indemnify against nine." No one pretends to charge him with nine counties. Surely there was nothing in the contract to preclude the plaintiff from extending his deputation to this individual over his whole *district, had he thought proper. Could [*716 a separate deed, as to the ninth county, have been pleaded as a defense?

There is no charge of positive injury in this plea, it will be observed; nor do the facts admit a suspicion of fraudulent intention. The sole effect of the interlineation, was to confide in U. to collect in another county, without giving security. The defense rests upon certain inferences from, or consequences imputed to, the naked act of interlining the word "Willingborough" without even averring the acts necessary to make the instrument a deed as to that county, or the intent to revoke or re-execute the deed as to the residue.

To us it appears, that it ought no more to affect the rights of the parties, than interlining the name of a region beyond the Atlantic, or a mere dash of the pen.

On the subject of rasures we would remark, it is to be regretted that this plea had not been specially demurred to, that the question might have been taken from the court and sent to the jury. There is no doubt that they might have found this deed several in its nature as to each county, and, therefore, unaffected by the addition of another. The tendency of the decisions has been, to carry such questions to that tribunal; and, notwithstanding some contrariety of dicta, it is now clearly settled that a rasure must make a deed void, or it is immaterial; and, therefore, non est factum is held to be the proper plea. Chief Justice Holt has declared any other form of taking advantage of a rasure impertinent (6 Mod., 215), *and the rule is not now [*717 to be doubted. But as to the principle upon which a rasure avoids a deed, it is not too much to say that the law of the subject appears to have got into some confusion. Modern decisions, particularly of our own courts, lean against the excessive rigor with which some writers and some cases disfigure it. In

this distinction.

69, a bond, that had been cancelled, and mutilated, the seal torn away by the joint act of the defendant and the plaintiff's bailee, was still held, and rightly held, to be sustainable as the deed of the party. In the case of Speak et al. v. United States, 9 Cranch, 28, a bond was sustained, notwithstanding the striking out of one joint and several co-obligor, in the absence of the others, and the insertion of another. And so, as to revenue bonds, there is not a court of the United States which has not sustained them against the plea of non est factum, notwithstanding that both sum and parties have been inserted after the execution by one of the obligors, and this, in his absence, because the contract was not altered, and the good sense of the law prevailed against its technicalities.

There is a great paucity of decisions, in modern times, on the subject of rasures and interlineations. If we mount to its origin, we find it, in the year-books, and in Perkins, who cites them, given as the ground of suspicion and inquiry. And so, unquestionably, it ought to be, and frauds or mutilations, to which the parties having the custody of deeds are privy, 718*] cannot be taken too strongly against them. But when we encounter the doctrine, as laid down in Pigot's case, "that when a deed is altered in a point material, by a stranger, without the privity of the obligee, even by drawing a pen through the midst of a material word, that it shall be void," without reference to the fraud, privity, or gross negli gence of the obligor, it certainly is time to pause; and I highly approve of the hesitation of my brother Story, in Cutt's case, as to the authority of Pigot's case. As an adjudication, the value of that case should be limited to the single point, "that an immaterial interlineation, without the privity or command of the obligee, does not avoid the bond." The case does not call for the decision of another point, for it is upon a special verdict, and that the only question submitted. Yet, the report er, who seldom lets an opportunity escape him, that furnishes an apology for exemplify ing his indefatigable research, makes it au thority for a score of positive decisions, and the introduction to a mass of law, upon questions totally distinct. But it should be noted of this learned judge, that his reports, like

the witness be examined upon this instrument, as to the county of A, as introductory to the proof of the money collected in A, and so on as to the counties B, C and D, and what is to prevent his proving the execution of this deed? That which may just as well have been executed in as many detached sheets of paper as there are counties, certainly has nothing of necessary entirety or indivisibility in its nature. Any other rule, as applied to this case, would, we conceive, be permitting frauds to be covered by a principle which was intended to prevent frauds. Certificate for the defendant.

the faithful discharge of the duties of his office, A bond, given on the 4th of December, 1813, for by a collector of direct taxes and internal duties, appointed (under the act of the 22d of July, 1813, ch. 16), by the President, on the 11th of November, 1813, to hold his office until the end of the next session of the Senate, and no longer, and subsequently appointed by the President, with the advice and consent of the Senate, on the 24th of January, 1814, is to be restricted (as to the liability of the sureties) to the duties and obligations created by the collection acts passed antecedent to the date of the bond.

The second commission, issued under the appointment, with the advice and consent of the Senate, operates a revocation of the first commisdent, which was to continue until the end of the sion, issued under the appointment by the Presinext session of the Senate, and no longer; and the liability of the sureties in the bond did not extend beyond the duration of the first commission. In general, laches is not imputable to the government; and where the laws require quarterly or other periodical accounts and settlements, a mere omission to bring a suit, upon the neglect of the officer or agent to account, will not discharge his sureties.

The case of The People v. Jansen, 9 Johns. Rep. 332, distinguished; and, so far as it conflicts with the present case, overruled.

In general, the debtor has a right to make the appropriation of payments: If he omits it, the right to make an appropriation after the controvercreditor may make it; but neither party has a sy has arisen.

In cases of long and running accounts, where making rests, the law will apply payments to exbalances are adjusted, merely for the purpose of tinguish the debts, according to the priority of time.

as the occasion or excuse for displaying his acquirements in the law learning of his day, and expressing his opinions upon juridical topics.

It is certainly true, that some of the decisions in the books have carried this doctrine a great way. As, for instance, the case of the lease of the Dean of Pauls, in which the counterpart expressed a rent of £27, and the ten719] ant altered his deed from £26 to £27, to make it accord with the counterpart and the true contract. Yet it was held to avoid his lease. 1 Roll., 27; Cro. Eliz., 627. But the utmost that can be made of these cases is, that they apply to those instances in which the deed is, necessarily, an entire thing; and the reason assigned is, that the witness can no longer testify to the deed, as the deed which he saw delivered. Surely this reason is not applicable to the present case; for, let

ern District of Pennsylvania.

*This was an action of debt, com- [*721 menced by the United States, in the court below, against the defendants in error, J. Kirkpatrick and others, as the obligees of a bond, given by them to the United States, on the 4th of December, 1813, conditioned for the true and faithful discharge of the duties of the office of collector of direct taxes and internal duties, by Samuel M. Reed, who had been appointed to that office by the President, on the 11th of November, 1813, and, by the terms of his commission, was to hold his office during the pleasure of the President, "and until the end of the next session of the Senate of the

NOTE. AS to official bonds and the extent of the liability of sureties thereunder, and when sureties are discharged, sce notes to 3 L. ed. U. S. 709; post, 578; 35 L. ed. U. S. 486, 679; 42 L. ed.

U. S. 987.

As to the application of payments by the debtor or creditor, see note to 3 L. ed. U. S. 136.

assigned on the last day of September, 22d of the King; and defendant demurred. The court held, that the condition should refer to the recital only, by which the defendant was bound only for six months, and not longer. This had been considered as a leading case ever since; and other analogous cases might 726] be cited. (2) The subsequent *acts of Congress on the same matter had so varied and enlarged the duties of the collector, as created by the statutes in force at the time the bond was given, that the sureties were not liable for moneys received under those acts, even admitting that they were liable beyond the continuance of the first commission. The learned counsel entered into a critical examination of the acts, to show that the duties of the officer were thus varied and enlarged, and cited the authorities in the margin to support the legal principle that such alteration in his official duties would discharge the sureties from further liability.3 (3) That laches might be imputed to the government, through the negligence of their officers. In the case of mere private individuals, the surety, or guarantee, may pay the debt, and proceed in chancery to compel the creditor to enforce his demand against the principal, which he could not do in the case of the government; and that was a sufficient reason to justify the court below in leaving it to the jury to say, whether the neglect of the officers of the treasury was not a waiver of the guaranty. And 727*] even *in the case of a private individual, gross laches, or fraud, on the part of the creditor, will discharge the surety (4) The court below were not bound to direct the jury, that the subsequent payments should be applied to discharge subsequent balances; nor did it appear by the record that the United States attorney made such an election. The rule as between a private debtor and creditor, as to the appropriation of payments, is not applicable where the receiver is a public officer.' Where the whole case is complicated of law and fact, the whole may be left to the jury, unless some particular point is select ed by the counsel for the consideration of the judge, and his opinion is asked upon that point.

1.-Id. 415; Sergt. Williams' note, 5.

2.-Wright v. Russell, 3 Wils. 530; S. C. 2 W. Bl. R. 934: African Company v. Mason, cited in Stubbs v. Clough, Str. 227: Barker v. Parker, 1 T. R. 287; Barclay v. Lucas, 1 T. R. 291, note a; Metcalf v. Bruin, 12 East Rep. 400; The Wardens of St. Savior v. Bostwick, 5 Bos. & Pull. 175; Commonwealth v. Baynton, 4 Dall. 282; Armstrong V. The United States, 1 Peters' Rep. C. C. 46: Liverpool Waterworks Company v. Atkinson, 6

East Rep. 507.

3.-Bartlett v. The Attorney-General Parker, 277: Comyn. Dig. tit. Chancery. 2; Stratton v. Rastall, 2 T. R. 366; Ludlow v. Simond, 2 Caines Cas. in Err.; 3 Wheat. Rep. 155, note 1, and cases there cited: 1 Bos. & Pull. 419; King v. Baldwin, 2 Johns. Ch. Rep. 554; 18 Ves. 20.

Hunt v. U. S. 1 Gall. 34.

4.-The People v. Jansen, 7 Johns. Rep. 332; 5.-King v. Baldwin, 2 Johns. Ch. Rep. 56; Wright v. Russell, 2 W. Bl. 934; 5 Vin. 108, pl. 14: Paine v. Packard, 13 Johns. Rep. 174.

6.-Philips v. Astling, 2 Taunt. 206; Warrington v. Forbes, 8 East Rep. 245; Duval v. Trask, 13 Mass. Rep. 154; Hunt v. United States, 1 Gall. 34: 3 Wheat. Rep. 154, 155, note 1, and cases there collected.

7.-United States v. January, Cranch, 575. 8.-Boorman v. Smith, 2 Serg. & Rawl. 464.

The Attorney-General, in reply, insisted that there was no limitation to the obligation of a surety, unless expressed on the face of the bond, or implied in law. In Lord Arlington v. Merrick, the condition of the bond was, expressly limited to six months. So all the other cases cited would be found to have some distinguishing feature; such as that the condition was to be faithful to the plaintiff, and the breach assigned was, that the defendant had failed to pay the plaintiff and his partner, *whom he had subsequently [*728 taken into the firm. There it was held, that the surety was not liable for subsequent defaults.10 In the case of The People v. Jansen," the statute of New York made it the express duty of the public officers to prosecute diligently, and with effect, the suits which had been commenced against the principal; and their neglect to perform this duty, actually occasioned the loss for which the sureties were sought to be made responsible. So, also, in the exchequer case of Bartlett v. The Attorney General," a new duty was laid upon coals, by a statute passed subsequent to the giving of the bond by the collector, under which statute a new deputation was given, and new security taken; it was, therefore, very properly held, that the sureties on the first bond were not liable for the moneys received on account of this duty. But, in the present case, the bond is to continue during his continuance in office, and is to secure all duties collected during that term. If it were an annual office, it might have been different. As to the two commissions, the practice of the government has been to consider them as one continuing commission. A different construction would render the bond practically ineffectual. objection which seeks to impute laches to the government, on account of the mere omission of its officers to proceed against the *principal, on every periodical omission [*729 to account, is entirely novel, and, if it were to prevail, would be equally fatal to the most important interests of the public, and injurious to the sureties themselves, as it may often happen that the balance consists of outstanding duty bonds, which may soon afterwards be collected, and liquidate the balance. The law does not create any obligation to sue, which does not exist in the case of a private guaranty.

13

The

Mr. Justice Story delivered the opinion of the court:

In this case, the court cannot but lament the extreme irregularity and laxity of the pleadings, if, indeed, the informal minutes upon the record be entitled, in any measure, to the appellation of pleadings. Some apology is, indeed, to be found in the asserted inaccurate local practice in the state courts; but it is impossible, without breaking down the best settled principles of law, not to perceive that the very errors in the pleadings are, of themselves, sufficient to justify a reversal of the judgment, and an award of a repleader. The agreement

9.-3 Saund. 411.

10.-3 Wils. 530.

11.-9 Johns. Rep. 332, 340. 12.-Parker, 277.

13.-Curling v. Chalklen, 3 Maul. & Selw. 502.