WILLIAM TURNER, Respondent, v. LUCAS BILLAGRAM, PEDRO BEOS ADREAN, GODOY E. L. BROWN and E. R. PAYNE, Appellants, 2 Cal. 520

Heydbnfeldt, Justice, delivered the opinion of the Court, with which Anderson, Justice, concurred. The record discloses that a substitute sheriff, called in the statute an Elizor, was appointed to seize the property sued for, and it is said by the appellant that his appointment was without authority of law, and his act a nullity, because it is not shown, that there was no sheriff and coroner, or that those officers were disqualified. The appointment was made by a judge having competent jurisdiction, and the presumption of law is, that he faithfully performed his duty.

Even if there was irregularity in such an appointment, this is not the tribunal in which first to raise the question. It should have been made in the Court receiving the officer’s return, by a motion to quash the service or levy. It seems that in the proceeding which gave origin to the bond here sued on, there was no complaint filed. There was an affidavit claiming the property, and an order from the county judge to the officer, to take the property, &c.; all of which was done in accordance with the statute regulating suits for personal property.

It is now insisted, that the bond taken by the officer under that proceeding, is not a statutory bond, because no action was ever commenced. It is true that the mode directed by law for commencing an action, is by filing a complaint, and such is the only proper mode; but it does not follow that an action may not be improperly commenced; and still less is it a result that the party so improperly commencing, shall have all the benefit he intended to derive from his suit, and then attempt to avoid the responsibility he incurred, by pleading his own misfeasance.

This would be taking advantage of his own wrong, which is against the sound principles of the common law. The remaining objection to the recovery in this case, is the erasure of the name of the first written obligee in the bond, and the substitution of another. The ancient doctrine was, that any erasure or alteration vitiated the bond; but under the influence of more liberal and enlightened reasoning, that doctrine has been modified to such an extent, as to enable us to inquire into the character of such alteration.

At the present time the usual way of announcing the modern decisions, is to say that the alteration must'be in a material part. Now, while I am willing to admit that the total change in the obligee is a material alteration, yet I am unwilling to subscribe to the limited expression, which is most in use, or to its strict construction.

If reason is the foundation of the common law, then I feel constrained to declare, as the .true principle upon this point, that no alteration or erasure will defeat the recovery upon the bond, unless it materially affects the rights or condition of the obligor, or is the result of a fraudulent intent to effect the same object. In the case under review, the bond, it seems, was made payable to the acting sheriff, instead of the party who was to be protected by its execution; this was the result of mistake alone, and when discovered, the name of the officer was erased and that of the proper obligee inserted.

I am satisfied that this ought not to be the subject of complaint on the part of the obligors, and it would be gross injustice to permit it to invalidate the bond. Let the judgment be affirmed, with costs.