Dolbier v. Norton , 17 Me. 307 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

We are very clear that the alteration was material. The sureties might be willing to be bound to Colman, from a conviction that he could not defend successfully, while for an opposite reason, they might have declined to enter into a bond to the plaintiff. The alteration then, if unauthorized, avoided the bond. The prosecution of the bond by the plaintiff, was no waiver of his claim upon the defendant for official delinquency. It does not appear that he was apprised that the alteration was made, after the execution of the bond. In making the alteration, the officer was not acting in the discharge of official duty, nor does the act receive any sanction from his official character.

It was his duty tp take a valid bond. The violation of that duty is shown, by proving that he received and returned one which .was invalid; more especially, if rendered such by his own act. This was sufficiently proved at the trial, in the absence of. all op* posing proof. The act done by him was apparently wrong, and the implication against him must remain, unleás he removes it- by showing an authority. We are not aware of any reason, why it should be presumed, without evidence.

■Judgment on the vérdicL