Richmond, 121 Mass. 110. In the case first cited it was said: "In the present case the alteration was not probably made by an agent of the payee, and it was entirely without the knowlenge and consent of the defendant, who was the maker of the note. Of course the payee could not recover on the note for any amount, because it was an altered instrument, and is avoided altogether by public policy. Certainly he could not restore life to it by passing it over to an indorsee." But compare Gleason v. Hamilton, 138 N. Y. 353; Town of Solon v. Williamsburgh Savings Bank, 114 N. Y. 122, 134. In cases of mere spoliation, where the original tenor was apparent upon inspection, it has been held sufficient to declare on the instrument in such form, and upon the spoliation being shown, there is no variance between the allegation and the proof. Drum v. Drum, 133 Mass. 566. A similar rule would now seem to apply where there was proof that the plaintiff was not a party to the alteration. Whether the holder of a note originally stated to be payable "with interest," no rate being named, and altered by the insertion of the words " seven per cent," must declare on the note as it was before the alteration in order to recover interest upon it at six per cent., quaere. Massachusetts National Bank v. Snow, 187 Mass. 160.

§ 206. What constitutes a material alteration. Any alteration which changes:

1. The date (a);

2. The sum payable, either for principal (b) or interest (c);

3. The time (d) or place (e) of payment;

4. The number or the relations of the parties (f);

5. The medium or currency in which payment is to be made (g);

Or which adds a place of payment where no place of payment is specified (h), or any other change or addition which alters the effect of the instrument in any respect, is a material alteration (i).

(a) National Ulster County Bank v. Madden, 114 N. Y. 280; Crawford v. West Side Bank, 100 N. Y. 50, 56; Moskowitz v.

Deutsch, 46 Misc. (N. Y.) 603; Wood v. Steele, 6 Wall. 80; Newman v. King, 54 Ohio St. 273.

(b) Batchelder v. White, 80 Va. 103. This is so, though the amount is lessened, as where $500 was changed to $400. Hewins v. Cargill, 67 Me. 554.

(c) Gettysburg National Bank v. Chisolm, 169 Pa St. 564. In this case the words "with interest at six per cent." were interlined. In Colonial Nat. Bank v. Duer, 108 App. Div. (N. Y.) 215, the words "with interest at eight per cent. per annum after due until paid" were added.

(d) Rogers v. Vosburgh, 87 N. Y. 208; Weyman v. Yeomans, 84 Ill. 403; Miller v. Gilleland, 19 Pa. St. 119.

(e) Tidmarsh v. Grover, 1 Maule & S., 735; Bank of Ohio Valley v. Lockwood, 13 W. Va. 392.

(f) Hoffman v. Planters' Nat. Bank, Va. (a case arising under the statute). In McCaughey v. Smith, 27 N. Y. 39, and Brownell v. Winnie, 29 N. Y. 400, it was held that the addition of another name as maker, where there was but one, was not a material alteration, the additional maker being regarded as a guarantor. The statute has probably changed this rule.

(g) Angle v. Insurance Company, 92 U. S. 330; Church v. Howard, 17 Hun, 5; Darwin v. Rippey, 63 N. C. 318; Bogarth v. Breedlove, 39 Tex. 561. Thus, adding to a note the words “in gold coin" is a material alteration. Wills v. Wilson, 3 Oregon 308.

(h) Whitesides v. Northern Bank, 10 Bush, 501.

(i) Weyerhauser v. Dun, 100 N. Y. 150. Addition of special agreement. In some States it has been held that the addition of the name of an attesting witness is a material alteration. Smith v. Dunham, 8 Pick. 246; Homer v. Wallis, 11 Mass. 310; Thornton v. Appleton, 29 Me. 298; Brackett v. Mountfort, 11 Me. 115. But in those States the attestation extends the liability of the maker under the statute of limitations, and so changes to some extent the nature of the contract and enlarges its obligations. In other States where such addition would not have this effect the alteration would not be material. Fuller v. Green, 64 Wis. 159.

ARTICLE X.

BILLS OF EXCHANGE; FORM AND INTERPRETATION.

Section 210. Bill of exchange defined.

211. Bill not an assignment of funds in hands of drawee.

212. Bill addressed to more than one drawee.

213. Inland and foreign bills of exchange.

214. When bill may be treated as promissory note. 215. Drawee in case of need.

§ 210. Bill of exchange defined.—A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer (a).

(a) Jarvis v. Wilson, 46 Conn. 91.

§ 211. Bill not an assignment of funds in hands of drawee. -A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts the same (a).

(a) Harris v. Clark, 3 N. Y. 93; Mandeville v. Welch, 5 Wheat. 286; Brill v. Tuttle, 81 N. Y. 454; Alger v. Scott, 54 N. Y. 14; Munger v. Shannon, 61 N. Y. 251; Commonwealth v. Am. Life Ins. Co. 167 Pa. St. 586; Reilly v. Daly, 159 Pa. St. 605; Bailey v. Southwestern R. R. Bank, 11 Fla. 266. But when, for a valuable consideration from the payee, the order is drawn upon a third party and made payable out of a particular fund, then due or to become due, from him to the drawer, the delivery of the order to

the payee operates as an assignment pro tanto of the fund, and the drawee is bound, after notice of such assignment, to apply the fund, as it accrues, to the payment of the order and to no other purpose, and the payee may, by action, compel such application. Brill v. Tuttle, 81 N. Y. 454, 457. An intention to make an assignment of the funds in the hands of the drawee may be inferred from the circumstances attending the delivery of the draft and the conduct of the parties. Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83.

§ 212. Bill addressed to more than one drawee.— A bill may be addressed to two or more drawees jointly, whether they are partners or not; but not to two or more drawees in the alternative or in succession.

§ 213. Inland and foreign bills of exchange.- An inland bill of exchange is a bill which is, or on its face purports to be, both drawn and payable within this State. Any other bill is a foreign bill (a). Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill.

(a) Statute applied, Amsinck v. Rogers, 189 N. Y. 252. See also Commercial Bank of Kentucky v. Varnum, 49 N. Y. 269; Life Insurance Company v. Pendleton, 112 U. S. 696; Armstrong v. American Ex. National Bank, 133 U. S. 433; Buckner v. Finley, 2 Peters, 586; Joseph v. Solomon, 19 Fla. 623; Phoenix Bank v. Hussey, 12 Pick. 483; Thompson v. Commercial Bank, 3 Caldw. 49; Union Bank v. Fowlkes, 2 Sneed, 556.

§ 214. When bill may be treated as promissory note.-— Where in a bill the drawer and drawee are the same person, or where the drawee is a fictitious person, or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or a promissory note (a).

(a) See section 36.

§ 215. Referee in case of need. The drawer of a bill and any indorser may insert thereon* the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonored by non-acceptance or non-payment (a). Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may see fit.

(a) The usual form is: "In case of need, apply to Messrs. C and D, at E." Chitty on Bills, 165.

66

* Error in engrossing. The word should be therein."