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if the award made be void in itself, or become 1824. void, or de performed, the obligee cannot recover min upon the bond, but that becomes void. Had the
Stewart. plaintiff made such an interlineation in the body of the obligation itself, inserting the name of another township, the legal effect cannot be disputed. The whole bond would have been invalidated.
The consequence, then, appears to be irresistible, that such must be the effect here. The appointment, originally made, became a nullity, and could only be revived by a new execution and delivery, and take effect only from that time. As to the original instrument to which the sureties of Ustick made themselves parties, by inserting it in their bond, it was wholly nullified.
It may, indeed, be said, that, the alteration in the appointment having been made with the consent and acquiescence of Miller and Ustick, who alone were parties to it, it remains a valid instrument of deputation. .
But the appointment is to be regarded in tivo entirely distinct aspects : (1.) As the instrument of deputation solely. (2.) As made a part of the bond, by being incorporated into it.
: 1. As a simple instrument of deputation, like any other deed, it could operate only between the parties to it, and could affect no others. The alteration, made and concurred in by all those interested io it, would not avoid it, perhaps, according to the current of modern authorities, though even
a Shep. Thouch. 68, 69.71. i Dall. 67. 2 Bea Abr. 650, Vol. IX.
1824. as between them the law was formerly held other
2. As being made a part of the bond by being Stewart.
incorporated into it. By this circumstance, the sureties of Ustick became parties to the act of appointment, and to the instrument of deputation. It became a part of their bond. By no act of the appointor and appointee could the interests of third persons be even incidentally affected. A. makes a bargain and sale to B., which cannot operate, because no pecuniary consideration is inserted. C. acquires, by a judgmegt, or in any other manner, a lien upon the property as belonging to A. The deed cannot be altered by the parties so as to devest any intervening right. As an original instrument, carrying its original date, it can have no operation. As a deed bearing the original date, it is void; its future validity can be only upon the idea of a surrender of the instrument, and a new delivery and execution.
We contend, then, that by the alteration made in this instrument of deputation, it ceased to have any validity by virtue of its original execution and delivery; as such, it was annulled. - But, whether annulled or‘not by this act of interlineation; whether it continued to operate as from the time of its original delivery, or from the period of its second delivery, after the alteration was made ; if it have any validity, even between the parties, it cannot operate as the appointment
a 2 Roll. Abr. 29. u. pl. 5.'
recited in the bond. It is another and distinct appointment from that to which the bond referred, and these sureties are not responsible for any deficiencies existing under it. By the 20th section of the act of Congress, “ Each Collector shall be authorized to appoint, by an instrument of writing under his hand and seal, as many deputies as he may think proper, assigning to each such deputy, by that instrument of writing, such portion of his collection district as he may think proper; and, also, to revoke the powers of any deputy, giving public notice thereof in that portion of the district assigned to such deputy." The power of appointment thus given, wás exercised by the original instrument of deputation for the eight townships. It is recited in the bond, and, therefore, each party is estopped from denying it. This instrument must have been made prior to the execution of the bond, because it is recited as already executed, and one of the conditions is, that he hath performed the duties of it. It must have been an appointment, bearing the date, and specially embracing the townships therein enumerated, and nothing more; otherwise it would be an appointmeņt differing from that, for the faithful perforinance of which this defendậnt became responsible. Supposing, then, it should now be made to appear that the original appointment included the township of Willingborough,
a Shelley v. Wright, Willes, 9. 1 Phillips, 356. on Cont. 236, 237.
1824. and that it was accidentally omitted in the recital
w of the bond, could a recovery be bad in this acMiller
tion? The answer of the surety is non hæc in feStowart.
dera deni. The language of the Court, in Clifton o. Walmesley, (5 T.R. 564.567.) would be conclusive against the plaintiff. This was the doctrine also in Ludlow o. Simond, (2 Caines' Err. 33. 42. 57.) The plea avers, and the demurrer admits, that the deficiency sought to be recovered, arose under an appointment including the township of Willingborough. The surety became responsible for the faithful performance of the duties of do such appointment; he, consequently, cannot be called on to respond them. But there is no pretence that any omission was made by fraud or mistake. Under the appointment thus made, Ustick did hold his office at the time the bond was executed. This office was as extensive as the eight townships enumerated in the appointment, but restricted within them. This limitation was of the very essence of the appointment, by the express terms of the statute.
The act of the 22d of July, 1813, ch. 16. 8. 20. requires that the assignment of the portion of the collection district within which the deputy is to act, should be contained in the instrument of appointment. Such an appointment, then, being made, it could only lawfully cease, (1.) by the death of Ustick, the deputy; (2.) by surrender of the appointment; (3.) by a revocation without his consent; (4.) by a new appointment; (5.) by cancellation.
The act wbich did take place, was, in substance, 1824. surrender of the original appointment, and the acceptance of a new one. The appointment, be- v.
Stewart. ing altered by the appointor, by inserting another assignment of a portion of the collection district ; and after this alteration, being accepted and acted under by the appointee, became, from the date of such alteration and acceptance, a new and distinct instrument. A new and distinct office was created, the duties and responsibilities of which differed essentially from the former; the instrument of appointment included the entire portion of the collection district assigned to the deputy, as required by the statutė. The legal inference is clear: the first appointment merged in the subsequent and more extensive one. If it operated as a new appointment; it operated also as a complete reyocation of the former one. Here was, then, an appointment perfectly valid, complying with all the requisitions of the law under which the officer arted, under which his duties were pe formed, under which his responsibilities attached. This, however, was a totally distinct appointment from that which the bond in question was given to cover. The appointment recited in, and covered by the bond, was for eight townships; the appointmont under which the delinquency occurred, was for aine. The defendant and his co-suretjes never did undertake to become responsible for one cent
a 5 Bac. Avr. 204