very terms of his contract"; and if a variation is made which extends its liability "to another person, or to any other subject, or for any other period of time than such as may be included in its words," and he does not assent to it, such variation is fatal to his obligation, whether he is injured thereby or not: Miller v. Stewart, 9 Wheat. 681; Taylor v. Johnson, 17 Ga. 521; Gardner v. Walsh, 5 El. & B. 89; Bowers v. Briggs, 20 Ind. 139; Henry v. Coats, 17 Id. 161; Wallace v. Jewell, 21 Ohio St. 163; 8 Am. Rep. 48; Dickerman v. Miner, 43 Iowa, 508; City of Montgomery v. Hughes, 65 Ala. 204.

Variations of the contract of suretyship which operate the discharge of the surety must, however, be such as are material, and change the legal import of the instrument, assuming the genuineness of the paper thus modified. Interlineations and changes may be made in the paper which evidences the liability, or in the words which express it, without destroying the validity of the contract, provided such modifications do not go beyond the mere form of the undertaking, or beyond the expression of the obligation which the law ascribes to it, in the absence of such expression, by implication. But if the alterations exceed these limits, and change the real meaning of the undertaking which the parties have entered into, whether presumptively to the detriment or advantage of the surety, and whether the effect is to add to or take from the liability, by the introduction of additional parties or otherwise, the surety is discharged: United States v. Tillotson, 1 Paine, 305; Taylor v. Johnson, 17 Ga. 521; O'Neal v. Long, 4 Cranch, 60; People v. Brown, 2 Doug. (Mich.) 9; Portage Br. Bank v. Lane, 8 Ohio St. 405.

There is another important limitation on the general doctrine which we have been considering, applicable to contracts generally, and exerting its influence on contracts of suretyship as well as all others. It is now well settled in this country, though the contrary rule formerly prevailed, and does yet to a large extent in England, that erasures, interlineations, spoliations, and changes, made in and of contracts by strangers to them, however material, abstractly considered, are, in legal contemplation, wholly immaterial, and ineffective to give to the instrument any other or different meaning or operation than that which attached to it before such intermeddling: Brown v. Jones, 3 Port. 422; Davis v. Carlisle, 6 Ala. 709; 1 Greenl. Ev., secs. 565-568; Byles on Bills, 323, and notes; 2 Parsons on Contracts, 716 et seq.

In this case, it is averred by the defendants Anderson and Reeves that after the bond had been signed by them and their principal, it was delivered to and accepted and approved by the sheriff. It was the latter's duty to pass on the sufficiency of the bond as to amount and solvency. When he accepted and approved it, with these names on it, the contract was complete, and his duties, so far as the execution of the instrument was concerned, were then at an end. His further duty with respect to the bond was to file it in the office of the clerk of the court: Code 1876, secs. 2942, 2946. The sheriff was merely the agent of the law to take the bond of the defendant, payable to the plaintiff, and return it into court. After taking it, he had only the naked custody for a particular purpose, and not to extend beyond a given time. In all other respects, and for all other purposes, he was an utter stranger. Of course, the defendant Aycock was also a stranger to the contract. The addition of Aycock's name as an obligor, after the undertaking had thus been perfected, was the act of these two strangers to it, the one inducing and accepting the signature, and the other signing. Under this state of facts, the alteration was no alteration in point of law. No change in the status of the parties was effected by it; nothing was added to or taken from their rights or liabilities; and the contract is to be treated by the parties as if the matter thus injected into it was not a part of the paper, as it is not a part of the undertaking which the paper evidences. The second plea of Anderson and Reeves discloses that the contract had thus been altered by strangers to it,—a fact which could exert no influence on their liability; and the plea presented, therefore, an immaterial issue. The demurrer to it was properly sustained: United States v. Spalding, 2 Mason, 478.

Contracts made on Sunday are absolutely void: Code, sec. 1749. A contract delivered on Sunday is a contract made on that day, within the meaning of this statute: Flanagan v. Meyer, 41 Ala. 132; Burns v. Moore, 76 Id. 342. The contract of the defendants, while running to the plaintiffs, and inuring to their benefit, was required by law to be made, and could only be made, with the sheriff. If delivered to him on Sunday, it was absolutely void, and imported no liability whatever. The plaintiffs had, and could have had, no connection with the making of the contract, and no control over the sheriff's action in relation to it. To hold that it was not void as between the plaintiffs and defendants, would be to add an

AX. ST. BEP., VOL. XIII.—4

other term to the statute, and make it inapplicable to public officers, and inuring to third persons. The case of Saltmarsh V. Tuthill, 13 Id. 390, is not in point. That adjudication related to a negotiable instrument, and depended for the result reached on the general principle which frees commercial paper from infirmities of which subsequent holders have no notice. Besides, the present statute "is more sweeping and vitiating in its effect than the act of 1803," under which that case was decided; and "all contracts," of whatever nature, are rendered void by it, if made on Sunday, unless they fall in one of the classes of cases specially excepted: Burns v. Moore, supra. It was not necessary, therefore, for the third plea of Anderson and Reeves to aver the complicity of the plaintiffs in the execution of the contract, and the demurrer to that plea should have been overruled.

Fairly construed, the plea interposed by Aycock is an averment that he was fraudulently induced to sign the bond after it had been accepted and approved. This goes to the consideration. The purpose of the bond was to secure to the principal the possession of the property. When the sheriff had accepted and approved the bond, as this plea alleges he did, the right to possession was perfect, and the duty on the part of the sheriff to deliver possession was absolute. It was immaterial whether possession had actually passed. The bond could have no other effect than to create this right, and corresponding duty as to the possession. If these existed by reason of the acceptance and approval of the bond before it was signed by Aycock, it was without consideration as to him; and he should have been allowed to prove these facts if he could: Jackson v. Jackson, 7 Ala. 791; Rutledge v. Townsend, 38 Id. 706; Brandt on Suretyship, 9.

This plea of Aycock also disclosed that his signature constituted an alteration of the contract made by him through a mistake of fact, being misled by the sheriff so to do; and on this ground, also, we hold that it was well pleaded, and the demurrer to it was properly overruled.

Reversed and remanded.

SURETYSHIP ALTERATION OF INSTRUMENTS. An alteration made by one not a party to a contract without the privity of any of the parties thereto is not material, and will not affect the liabilities of those who are bound by it: Note to Woodworth v. Bank of America, 10 Am. Dec. 269. As to a release of sureties by alterations in the contract: Note to First National Bank v. Gerke, 6 Am. St. Rep. 459, 460; compare Simonson v. Grant, 36 Minn. 439; Womack v. Paxton, 84 Va. 9.

SURETYSHIP - WHAT RISK SURETY ASSUMES, and the nature of the contract of indemnity: Sefton v. Hargett, 113 Ind. 592; Bank of Monroe v. Gif. ford, 72 Iowa, 750.

SUNDAY-CONTRACTS. -The validity of contracts entered into on Sunday depends upon the statutory provisions of the state where the contract is made: Note to Coleman v. Henderson, 12 Am. Dec. 292. A master cannot compel his minor servant to work on Sunday, in violation of the law, under a contract for the servant's services for a specified time: Hunt v. Adams, 81 Me. 356.

SCHLOSS v. MONTGOMERY TRADE COMPANY.

187 ALABAMA, 411.]

CORPORATIONS - PROOF OF CORPORATE EXISTENCE. When, to an action by a corporation, the plea of nul tiel corporation in proper form is interposed, the burden is on the plaintiff to prove its corporate existence, either by producing its charter or articles of incorporation, or by some admission on the part of the defendant, or by showing a state of facts which will operate as an estoppel. CORPORATIONS - ESTOPPEL TO DENY CORPORATE EXISTENCE. — In action by corporation suing as such against a subscriber to its capital stock before incorporation, the payment by the defendant of former installments as called for, and an averment that the installment sued for had been "duly and regularly called in by the plaintiff, and demand therefor made upon the defendant," do not, standing alone, show an estoppel against him to deny the existence of any corporation. CORPORATIONS.

ALABAMA STATUTE, CODE OF 1886, SECTION 1663, HAS CHANGED the rule of the common law, so as to authorize the organization of a business corporation before all of the capital stock has been subscribed for.

ACTION Commenced September 15, 1888, against Schloss and Kahn, as partners, by the "Montgomery Trade Company, a corporation," as described in the complaint, or “a corporation organized under the laws of Alabama," as described in the summons. The complaint contained a special count which claimed three hundred dollars "due on account of the subscription by defendants, in writing, to the capital stock of plaintiff, with interest thereon from January 9, 1888"; and it was averred "that said defendants subscribed, by instrument in writing, to fifteen shares of the capital stock of said company, of the par value of one hundred dollars per share; that said defendants paid all of said subscription, except twenty per cent thereof; that on the 9th of January, 1888, the said twenty per cent was duly and regularly called in by the plaintiff, and demand therefor made upon said defendants, but they neglected and refused to pay the same, and still neglect," etc.

The defendants demurred to the special count, upon the ground that it did not allege or show that the plaintiff was ever legally incorporated, nor that the plaintiff had ever tendered to the defendants a certificate for their stock, or was ready to issue such certificate. The demurrer was overruled, and the defendants filed several pleas, the first and sixth of which denied the plaintiff's corporate existence, and to these the court sustained a demurrer of the plaintiff. Other facts appear in the opinion.

Arrington and Graham, for the appellants.

Tompkins and Troy, contra.

SOMERVILLE, J. It is true that where one contracts with an alleged corporation, as such, and in such manner as to recognize its corporate existence de jure or de facto, he will often be estopped to deny the fact thus admitted, whether the denial go to the question of an originally legally organized body, or to that of a cessation of corporate existence. These are cases where the action is brought against one who contracts with the plaintiff in its real or asserted corporate capacity.

But this principle has no reference to cases where a subscription for stock is made by one in anticipation of organizing a corporation which is at the time only in process of formation. "The rule that a person contracting with a corporation recognizes thereby its capacity to contract, and cannot afterwards deny it in that transaction, does not apply to one who subscribes before incorporation. He may insist upon the organization of a regular and legal corporation": Cook on Stock and Stockholders, secs. 185, 186, and cases cited in note 2, p.

173.

It is perfectly well settled that before a suit can be maintained by an alleged corporation, although it may not be necessary to prove the legality of the existence of such corporation, its actual or de facto existence must be proved, or else a state of facts shown which will operate to estop the defendant from denying such de facto existence. When the plea of nul tiel corporation in proper form is interposed, in the absence of any regulating statute on the subject, the burden is on the plaintiff corporation, if private, to prove its existence, either by production of its charter or articles of corporation, or by some express or implied admission on the part of the defend