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presumption of payment. Therefore, to deprive a debtor of the benefit of such a statute by an acknowledgment of indebtedness, there must be an acknowledgment to the creditor as to the particular claim, and it must be shown to have been intentional. Roscoe v. Hale, before cited. "An acknowledgment of an existing liability, debt, or claim," within the meaning of the Kansas statute, implies a meeting of minds, the right of the creditor to take what is written as an acknowledgment to him of the existence of the debt, as well as the intention of the debtor, as deduced from the contents of the writing and all the facts accompanying it, to make such acknowledgment. In Wetzell v. Bussard, 11 Wheat. 309, 315, Chief Justice MARSHALL said: "An acknowledgment which will revive the original cause of action must be unqualified and unconditional. It must show positively that the debt is due in whole or in part." To the same effect are Bell v. Morrison, 1 Pet. 351, 362, and Moore v. Bank of Columbia, 6 Pet. 86, 92. In Barlow v. Barner, 1 Dill. 418, this statute of Kansas was under consideration by Mr. Justice MILLEF and Judge DILLON, and the court said: "Courts, by their decisions as to the effect of loose and unsatisfactory oral admissions and new promises, had almost frittered away the statute of limitations, and, to remedy this, statutes similar to the one in force in this state have been quite generally enacted. The statute of Kansas requires the acknowledgment to be in writing, and signed by the party; and the acknowledgment must be of an existing liability with respect to the contract upon which a recovery is sought."

The statement of the city treasurer to the agents of the city in New York in his letter of August 6, 1875, that special improvement bonds of certain numbers, which included those now sued on, were then unpaid, can avail nothing, for it was not a letter to the plaintiff or to his agent. The same remark is true as to the letter of August 11, 1875, and it remits $500 to apply on Macadam bonds generally. As to the payment of the $290, it was paid on bond No. 78 only, as is found, no others of the bonds sued on having been presented to that date. It was not a payment on any other bond or on the bonds as a whole. It follows from these considerations that the conclusion of law made by the circuit court on the facts found was erroneous. It ought to have rendered judgment for the defendant except as to bond No. 78. Its special finding of facts is, under section 649 of the Revised Statutes, equivalent to the special verdict of a jury, (Norris v. Jackson, 9 Wall. 125; Copelin v. Insurance Co. Id. 461, 467; Insurance Co. v. Folsom, 18 Wall. 237, 249; Retzer v. Wood, 109 U. S. 185; S. C. 3 SUP. CT. REP. 164;) and as such special finding covers all the issues raised by the pleadings, this court has the power, under section 701 of the Revised Statutes, to direct such judgment to be entered as the special finding requires. In cases like the present one the proper practice is to direct a judgment for the defendant, instead of awarding a new trial. National Bank v. Insurance Co. 95 U. S. 673, 679; Fairfield v. County of Gallatin, 100 U. S. 47; Wright v. Blakeslee, 101 U. S. 174; People's Bank v. National Bank, Id. 181; Warnock v. Davis, 104 U. S. 775; Lincoln v. French, 105 U. S. 614; Ottawa v. Carey, 108 U. S. 110; S. C. 2 SUP. CT. REP. 361; Kirkbride v. Lafayette Co. Id. 208; S. C. 2 SUP. CT. REP. 501; Retzer v. Wood, 109 U. S. 185; S. C. 3 Sup. Cт. REP. 164; Canada Southern R. Co. v. Gebhard, Id. 527; S. C. 3 SUP. CT. REP.363; East St. Louis v. Zebley, 110 U. S. 321; S. C. 4 SUP. CT. REP. 21. The trial being without error, if the finding is sufficient, the same judgment is to be given as would be given on a special verdict. Where the special finding embraces only a part of the issues, as in Ex parte French, 91 U. S. 423, a different rule prevails. Accordingly, the judgment of the circuit court is reversed, and the case is remanded to that court, with direction to enter a judgment for the plaintiff on bond No. 78 for $500, with proper interest thereon, less a credit on said bond of $290, of the date of November 8, 1875; and, as to the other bonds sued on, to enter a judgment for the defendant, with costs.

(112 U. S. 139)

MERSMAN v. WERGES and another.1
(November 3, 1884.)

1. PROMISSORY NOTE-SURETY-DISCHArge.

The addition of the signature of a surety to a promissory note, without the consent of the maker, does not discharge him.

2. SAME-ALTERATION-MORTGAGEE.

A mortgage executed by husband and wife of her land, for the accommodation of a partnership of which the husband is a member, and as security for the payment of a negotiable promissory note made by the husband to his partner and indorsed by the partner for the same purpose, and to which note the partner, before negotiating it, adds the wife's name as a maker, without the consent or knowledge of herself or her husband, is not thereby avoided as against one who, in ignorance of the note having been so altered, lends money to the partnership upon the security of the note and mortgage.

8. JURISDICTION OF CIRCUIT COURT-FORECLOSURE OF MORTGAGE.

Under the act of March 3, 1875, c. 137, the circuit court has jurisdiction of a suit between citizens of different states to foreclose a mortgage made to secure the payment of a negotiable promissory note of which the plaintiff is indorsee, although the payee and mortgagee is a citizen of the same state with the defendant.

Appeal from the Circuit Court of the United States for the District of Iowa.
C. H. Gatch, for appellant. Galusha Parsons, for appellee.

GRAY, J. This is a bill in equity, filed in the circuit court of the United States for the district of Iowa, by Joseph J. Mersman, a citizen of Missouri, against Caspar A. Werges and wife, citizens of Iowa, to foreclose a mortgage of her land in Iowa, executed on September 1, 1870, by the husband and wife to E. H. Krueger, likewise a citizen of Iowa, "to be void upon condition that the said Caspar A. Werges shall pay to the said E. H. Krueger the sum of six thousand dollars as follows, viz., one year from date, with ten per cent. interest thereon, according to the tenor and effect of his promissory note of even date herewith." The bill originally set forth the note as signed by both husband and wife, but, after the coming in of the answer, was amended by leave of the court so as to allege it to be the note of the husband only. The case was heard upon pleadings and proofs, by which it appeared to be as follows: The husband and Krueger were members of a partnership. engaged in carrying on a mill, Krueger being the active partner, and Werges and his wife living on a farm which belonged to her. The plaintiff agreed with Krueger to lend to the husband, for the benefit of the partnership, six thousand dollars on the security of the farm; and the wife agreed, for the accommodation of the partnership, to execute a mortgage of the farm. The husband signed a note, payable to Krueger, or order, and corresponding in terms with the mortgage; and the husband and wife executed the mortgage, and delivered the note and mortgage to Krueger. While they were in Krueger's hands, the name of the wife was subscribed to the note, under that of the husband, by Krueger or by his procurement, without the knowledge or consent of either husband or wife. Krueger indorsed the note, and delivered the note and mortgage to the plaintiff, who thereupon, not knowing that the wife had not herself signed the note, advanced the money to him for the partnership. The circuit court held that the addition of the wife's name to the husband's note was a material alteration of the note, and made void the mortgage; and dismissed the bill. See 1 McCrary, 528; S. C. 3 Fed. Rep., 878. The plaintiff appealed.

This court is of opinion that the decree of the circuit court cannot be sustained. The difference of opinion is not upon the facts of the case, but upon their legal effect. A material alteration of a written contract by a party to it discharges a party who does not authorize or consent to the alteration, be

18. C. 3 Fed. Rep. 378.

w

cause it destroys the identity of the contract, and substitutes a different agreement for that into which he entered. In the application of this rule it is not only well settled that a material alteration of a promissory note by the payɛə or holder discharges the maker, even as against a subsequent innocent indorsee for value; but it has been adjudged by this court that a material alteration of a note, before its delivery to the payee, by one of two joint makers without the consent of the other, makes it void as to him; and that any change which alters the defendant's contract, whether increasing or diminishing his liability, is material, and therefore the substitution of a later date, delaying the time of payment, is a material alteration. Wood v. Steele, 6 Wall. 80. See, also, Angle v. Northwestern Ins. Co. 92 U. S. 330; Greenfield Savings Bank v. Stowell, 123 Mass. 196, and cases there cited.

The present case is not one of a change in the terms of the contract, as to amount or time of payment, but simply of the effect of adding another signature, without otherwise altering or defacing the note. An erasure of the name of one of several obligors is a material alteration of the contract of the others, because it increases the amount which each of them may be held to contribute. Martin v. Thomas, 24 How. 315; Smith v. U. S. 2 Wall. 219. And the addition of a new person as a principal maker of a promissory note, rendering all the promisors, apparently, jointly and equally liable, not only to the holder, but also as between themselves, and so far tending to lessen the ultimate liability of the original maker or makers, has been held in the courts of some of the states to be a material alteration. Shipp v. Suggett, 9 B. Mon. 5; Henry v. Coats, 17 Ind. 161; Wallace v. Jewell, 21 Ohio St. 163; Hamilton v. Hooper, 46 Iowa, 515. However that may be, yet where the signature added, although in form that of a joint promisor, is in fact that of a surety or guarantor only, the original maker is, as between himself and the surety, exclusively liable for the whole amount, and his ultimate liability to pay that amount is neither increased nor diminished; and, according to the general current of the American authorities, the addition of the name of a surety, whether before or after the first negotiation of the note, is not such an alteration as discharges the maker. Montgomery R. Co. v. Hurst, 9 Ala. 513, 518; Stone v. White, 8 Gray, 589; McCaughey v. Smith, 27 N. Y. 39; Brownell v. Winnie, 29 N. Y. 400; Wallace v. Jewell, 21 Ohio St. 172; Miller v. Finley, 26 Mich. 249. The English cases afford no sufficient ground for a different conclusion. In the latest decision at law, indeed, Lord CAMPBELL and Justices ERLE, WIGHTMAN, and CROMPTON held that the signing of a note by an additional surety, without the consent of the original makers, prevented the maintenance of an action on the note against them. Gardner v. Walsh, 5 El. & Bl. 83. But in an earlier decision, of perhaps equal weight, Lord DENMAN and Justices LITTLEDALE, PATTESON, and COLERIDGE held that in such a case the addition did not avoid the note, or prevent the original surety, on paying the note, from recovering of the principal maker the amount paid. Catton v. Simpson, 8 Adol. & E. 136: S. C. 3 Nev. & P. 248. See, also, Gilb. Ev. 109. And in a later case, in the court of chancery, upon an appeal in bankruptcy, Lords Justices Knight BRUCE and TURNER held that the addition of a surety was not a material alteration of the original contract. Ex Farte Yates, 2 De G. & J. 191; S. C. 27 Law J. (N. S.) Bankr. 9.

The case at bar, being on the equity side of the court, is to be dealt with according to the actual relation of the parties to the transaction, which was as follows: The note, though in form made by the husband to his partner, Krueger, and indorsed by Krueger, was without consideration as between them, and was in fact signed by both of them for the benefit of the partnership. The mortgage of the wife's land was executed and delivered by her and her husband to Krueger, for the same purpose. The name of the wife was signed to the note by Krueger, or by his procurement, before it was negotiated for value. The plaintiff received the note and mortgage from Krueger, and ad

vanced his money upon the security thereof, in good faith, and in ignorance that the note had been altered. If the wife had herself signed the note, she would have been an accommodation maker, and, in equity, at least, a surety for the other signers; and neither the liability of the husband as maker of the note, nor the effect of the mortgage executed by the wife, as well as by the husband, to secure the payment of that note, would have been materially altered by the addition of her signature. There appears to us, therefore, to be no reason why the plaintiff, as indorsee of the note, seeking no decree against the wife personally, should not enforce the note against the husband, and the mortgage against the land of the wife. This suit being between citizens of different states, and founded on a negotiable promissory note, the indorsement of which to the plaintiff carried with it as an incident, in equity, the mortgage made to secure its payment, was within the jurisdiction of the circuit court, under the act of March 3, 1875, c. 137, although Krueger, the payee and mortgagee, could not have maintained a suit in that court. 18 St. 470; Sheldon v. Sill, 8 How. 441, 450; Tredway v. Sanger, 107 U. S. 323; S. C. 2 SUP. CT. REP. 691.

Decree reversed.

(112 U. S. 88)

UNITED STATES . FLANDERS and others.
(November 3, 1884.)

1. INTERNAL Revenue-COMPENSATION OF COLLECTOR.

A person appointed and commissioned as a collector of internal revenue, under the act of July 1, 1862, (12 St. 432,) is entitled to the compensation, provided for by section 34 of that act, of a percentage commission to be computed on the moneys accounted for and paid over by him, from the time he enters on the duties of his office and his services are accepted, and not merely from the time he takes the oath of office and files his official bond.

2. SAME SUIT ON BOND-SET-OFF.

A collector of internal revenue appointed under that act is entitled, in a suit against him on such bond, brought to recover public money collected by him and not paid over, to have allowed, as a set-off, money paid by him for publishing advertisements required to be made by section 19 of that act, if the amount is found to be reasonable and proper, although the item was not formally allowed or certified by the accounting officers in the treasury department, or otherwise.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

Asst. Atty. Gen. Maury, for plaintiff in error. J. Q. A. Fellows, for de fendant in error.

*BLATCHFORD, J. This is a suit brought by the United States, in the circuit court of the United States for the Eastern district of Louisiana, against George S. Denison, and the sureties on his bond, as collector of internal revenue for the first collection district of Louisiana, to recover $4,346.84 as public money which he collected and did not pay over. Three of the sureties defended the suit, and on a trial before a jury there was a verdict in their favor, and a judgment accordingly. The United States have sued out a writ of error. The answer sets up that Denison or his estate is entitled to further credits than those allowed to him, which claims for credits he presented to the accounting officers of the treasury, but they disallowed them, to the amount of $4,199.74 on account of his compensation as collector, and to the amount of $777 on account of money paid by him for necessary and legal advertising. The bill of exceptions sets forth that there was evidence tending to show that Denison was appointed collector by a commission dated March 4, 1863; that he took the oath of office, and executed his bond as such collector on the fifteenth of May, 1863, and remained in office until the eleventh of December, 1863; that his accounts were adjusted by the accounting officers of the treasury at various dates subsequent to June 3, 1864, but in these ad

justments he had not concurred, and the proper notice had been given to lay the foundation for the introduction of evidence as to the additional credits claimed; that he entered upon the discharge of his official duty as collector on the eleventh of March, 1863, and continued so to act until December 11, 1863; and that his accounts were regularly transmitted monthly during his whole term of office, and at the end thereof, and all prior to June 30, 1864. The counsel for the plaintiffs asked the court to instruct the jury that Denison was not entitled to any compensation as collector prior to May 15, 1863, the date on which he gave the bond and took the oath of office. The court refused to give that instruction, but instead thereof gave the following: That the government could have properly refused to allow Denison to assume the office of collector until he had taken the oath of office and given the requisite bond; that for certain purposes he could not be an officer until he had taken the oath and given the bond; but if the jury found that after he had received his commission, the government permitted him to discharge the duties of the office, and accepted of his services therein prior to the time of his taking the oath and giving the bond, he was entitled to compensation from the time when he commenced to discharge his official duties and his services in the office were accepted by the government; and that it being admitted that he had collected the sum of $577,791.28, he was entitled to compensation at the rate of $833.33 per month during the time he held the office of collector, counting from the time when, after receiving his commission, he was permitted by the government to discharge the duties of the office, and his services were accepted therein, although, during a portion of such time, he had not taken his official oath, nor given his official bond. To this refusal and instruction there was an exception by the plaintiffs.

It is contended that there was error in the instruction that the collector was entitled to compensation for the time before he took the oath and gave the bond. His commission was dated March 4, 1863, and the government permitted him to discharge the duties of the office, and accepted his services from March 11, 1863. At that time the act of July 2, 1862, (12 St. 502,) was in force, which provided that every person appointed to any office of profit under the government, in any civil department of the public service, except the president, should, "before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe" an oath or affirmation, the form of which is given. Section 4 of the act of July 1, 1862, (12 St. 433,) provided that, before any collector of internal revenue should "enter upon the duties of his office," he should give a specified bond, with sureties. The compensation to which Denison was entitled was at the rate of $10,000 a year, under section 34 of the act of July 1, 1862, (12 St. 445.) That section allows the compensation to the collector "appointed," in full compensation for his services and those of his deputies. The compensation is by a specified percentage commission, to be computed on the moneys "paid over and accounted for under the instructions of the treasury department," the commissions not to exceed $10,000 a year, in any case. The compensation is given by the statute to the collector, when appointed, and is based wholly on the amount of moneys paid over and accounted for. If he is appointed, and acts, and collects the moneys, and pays them over and accounts for them, and the government accepts his services and receives the moneys, his title to the compensation necessarily accrues, unless there is a restriction growing out of the fact that another statute says that he must take the oath "before being entitled to any of the salary or other emoluments" of the office. But we are of opinion that the statute is satisfied by holding that his title to receive, or retain, or hold, or appropriate the commissions as compensation, does not arise until he takes and subscribes the oath or affirmation, but that, when he does so, his compensation is to be computed on moneys collected by him, from the time when, under his

16.