afterwards delivered the opinion of the Court as follows:

Two objections have been made to the verdict as grounds for the motion for a new trial.—1. That secondary evidence was improperly admitted to prove the execution of the bail bond.—2. That the jury were erroneously instructed that the alteration in the bond was of such a nature, and made under such circumstances as would not in law avoid it.

As to th& first point, we cannot doubt the correctness of the decision admitting secondary evidence. The law requires that the subscribing witness shall be produced, if living, and within the reach of the process of the Court. But when due diligence has been used to find him, and without success, then the next best proof is admissible. In the case before us, it is stated that after inquiry made in the town where the bond was executed, it was found that no such person as the subscribing witness had ever lived there or in any of the neighboring towns ; and nothing could be ascertained respecting him. After these facts were established, proof of the hand-writing of the defendant and of the subscribing witness was properly offered to the jury. Cunliffe v. Sefton, 2 East 183.

The second point deserves a more particular consideration. In England, bail below is given by bond to the Sheriff ; bail above is given to the plaintiff by recognizance in Court, or before commissioners. The bail bond may by law be assigned to the plaintiff; and he may have an action of debt upon it in his own name, and may bring a scire facias upon the recognizance. By the laws of this State the bail given is made to answer the purpose both of bail below, and bail above, at common law. It is always taken by bond given to the officer; and such bond is not assignable, nor can an action of debt be maintained upon it by the plaintiff in his own name or the name of the Sheriff. With us, the plaintiff avails himself of such bond by a writ of scire facias in his own name, in the same manner as he does in England by the same kind of process on the recognizance; and *337instead of the plea of non esl factum, which would be proper in debt on a specialty, the bail may contest the execution or va* lidity of the bail-bond on the plea that he did not become bail for the principal, as alleged in the scire facias, in fact this action proceeds on the principle that the officer to whom the bail-bond is given is the mere trustee of the plaintiff, and receives the security for his use. In the examination of this point of the sause, this distinction seems to be of some importance.

It is manifest that the alteration was made without any fraud ulent intent or improper motive ; by the consent and in the presence of Brooks the constable, and Wilson the principal in the bond ; and for the express purpose of rendering the bond legal and sufficient. It is true that Russ was not privy to the alteration. The bond clearly is not avoided as to Wilson; the only question is, whether it is void as to Russ the defendant.

It does not seem to be necessary in this case to decide whether the alteration was an immaterial one, (though we are inclined to consider it as such,) nor whether it would avoid the bond, being made with the consent of the obligee. This latter question appears not yet settled either in this State, or in Massachusetts. In the case of Barrett v. Thorndike decided in Lincoln county September term 1820, (ante p. 73) we had occasion to review some of the principles relating to alterations and erasures in deeds, bonds, and other instruments, whether material or immaterial; but that case was determined upon other grounds. Nor is it necessary to determine how far the consent or act of the constable in making the alteration in the bond should be imputed to the plaintiff, even if the law were clear that an immaterial alteration, made by an obligee, would avoid a bond ; inasmuch as the constable was a mere trustee, appointed by the law to receive a bond for the plaintiff’s use, and over whose acts the plaintiff had no control. Waiving all these questions, we decide this cause upon other principles.

It is important to consider at what lime the alteration was made. The bond was prepared and signed by Wilson at the request of Brooks ; and then signed by Russ, who gave it back to Wilson to carry and deliver to Brooks as a good and sufficient bail-bond in the action. Before it was delivered to Brooks, he discovered the error in the form of the bond; and at his sug-*338gestión and request Wilson made the alteration, and thereupon the bond, so corrected, was delivered to Brooks. The circumstances also, under which the alteration was made, deserve particular notice. In all cases relating to this subject it seems to be admitted that alterations, made bj consent of parties, do not avoid the instrument. If therefore it should appear from the facts reported, that the bond was made payable to Brooks instead of the Sheriff by the express or implied consent of Russ, he must be bound by it. It is evident that he intended, when he signed the bond, to become the bail of Wilson, and.to assume all the liabilities of bail. It does not appear that he ever knew who was the obligee named in the bond, and to him it was a matter of no consequence. His object was to assist his friend, and to obtain the continuance of his personal liberty. With this view all the arrangements had been made, and the bond was procured and signed. Wilson was the agent of Russ to carry and deliver the bond to Brooks the constable. Brooks told Wilson the agent that the bond was incorrect in form, and, unless corrected, could not avail as an effectual instrument. To render it correct and effectual this agent made the alteration, and then delivered the bond, which produced its intended effect to release Wilson from the arrest when made.

From this agency and confidence reposed, we may well presume the consent of Russ that any errors in the form of the bond, the correction of which would be consistent with his intentions and necessary to give them effect, might be corrected. We are of opinion that such consent ought to be inferred from the facts, to prevent the imputation upon the defendant of a fraudulent intent to the injury of the plaintiff. We also think ourselves fully justified in drawing this conclusion, from the reasoning of the Court in the case of Smith v. Crocker, 5 Mass. 538. and Hunt v. Adams, 6 Mass. 519. and the principles established by the decisions of those causes. In the case at bar the only alteration made in the bond was the honest substitution of one nominal obligee for another ; the real obligee, that is Hale the creditor, being the same, for whose use the bond was taken, to whom alone it was intended as a legal security, and by whom it has been accepted as such, as appears by his prosecution o'f this suit. On the whole, we are satisfied that a new trial ought not to be granted. Judgment on the verdict.