Harper v. State ex rel. Board of Commissioners

Blackford, J. — This was an action of debt brought by the state, on the' relation of the board of commissioners of Knox county, against Jacob Harper, Martin Robinson, John Collins, Isaac Coons, Jonathan P. Cox, George Calhound, and John Weaver. The suit is founded on a joint and. several bond, executed by the defendants and one John K. Kurtz, whom the defendants had survived, in the penalty of 4,000 dollars, conditioned for the faithful discharge, by Harper, oí certain duties, &c. Two of the defendants, Robinson and Collins, pleaded non est factum, upon which issue was joined. There were issues on other pleas which it is not necessary to notice. One of the pleas was demurred to and the demurrer correctly sustained. The cause was submitted to the Court, and judgment rendered for the plaintiff. On the trial, the plaintiff offered in evidence the bond- declared on, and introduced a subscribing witness who stated that, on, &c., the bond was executed by Harper, Kurtz, Robinson, and Collins; that two years'after-such execution of the bond, the saíne was altered by inserting the names of the other defendants as co-obligors in the bond, and by adding their signatures to it; and that he, the witness, was not aware that Robinson and Collins assented to the alteration. The defendants, thereupon, objected to the bond as evidence, but the objection was overruled. We think the bond, according to the facts proved, could not be considered valid as to the defendants who pleaded non est factum. It appears that two years after the defendants. who- so pleaded had executed the bond, it was altered in a material part by its being executed by several other persons, and by the insertion of their names in the body of it; [62] an¿ there was no evidence that the alteration was made with the consent of the two defendants who had previously executed it, and who pleaded non est factum. In the absence of explanatory evidence, the alteration, made after the said two defendants had executed the bond, must be presumed to have been made with the assent of the relator, and without the assent of those two obligors. The consequence is, that the bond was void as to two of the obligors, and that the suit against them and the other defendants, founded on the bond, ought not to have been sustained. J. Law, for the plaintiffs. S. Judah, for the defendant. Per Curiam. — The judgment is reversed at the costs of the relator. Cause remanded, &c.