Cutts v. United States
U.S. Circuit Court for the District of Massachusetts
An action of debt was brought in the district court of Maine, to recover the amount of two bonds, given by [Joseph Cutts] the plaintiff in "error, to the United States, to secure the payment of duties. The declaration alleged, that the originals were lost, and made profert of copies. To this declaration the paintiff in error pleaded: 1." Non est fac-tum, and 2. payment; upon which pleas, issues to the country were joined.
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An action of debt was brought in the district court of Maine, to recover the amount of two bonds, given by [Joseph Cutts] the plaintiff in "error, to the United States, to secure the payment of duties. The declaration alleged, that the originals were lost, and made profert of copies. To this declaration the paintiff in error pleaded: 1." Non est fac-tum, and 2. payment; upon which pleas, issues to the country were joined. Upon the trial of the cause, a verdict was found for the United States, upon the issue of non est fac-tum; and upon the issue of payment, a verdict was found of non-payment…
1Opinion of the CourtStory, Circuit Justice
The general rule certainly seems to be, that any material alteration of a bond after its execution, by the obligee (or even, as some authorities assert, by a stranger without his privity), will avoid the bond. Pigot’s Case, 11 Coke, 27. See Jackson v. Malin, 15 Johns. 293. Nay, it is said, that an immaterial alteration by the obligee will avoid the bond. Id. But an established exception to this rule is, when the alteration is made by the consent of the obligor himself, after execution, either in pursuance of a previous or a subsequent agreement.3 But it has been *1087supposed, that the like…
2Cases cited1 opinion
- Jackson ex dem. Malin v. MalinNew York Supreme Court · 1818
3Cited by13 opinions
- Miller v. StewartSupreme Court of the United States · 1824
- Smith v. BarnesMontana Supreme Court · 1915
- Rees v. OverbaughNew York Supreme Court · 1827
- Brown v. JonesSupreme Court of Alabama · 1836
- Clark v. FaulknerIndiana Supreme Court · 1822
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