the note.217 So, it is not material if a second witness is added to a note already attested.218 And, where an attestation is added before the delivery to the payee without the knowledge of either party, it will not affect the instrument, and may be stricken out.219 And, if the attestation has no legal effect where the note is made, the adding of a witness' name will be immaterial, whatever the intention was in writing it.220

Alteration in Number-Stamp.

§ 1762. Changing the number of a bond or bank note, which is one of a series, is not a material alteration.221 And such alteration will constitute no defense against a bona fide holder who has received payment from the maker. 222 So, a note is not materially altered by being afterwards stamped by a collector.223 And it will be valid in the hands of a bona fide holder, although the stamp was put on without authority of the maker. 224

Alteration Discharges Debt.

§ 1763. The holder of a bill of exchange, after materially altering it, cannot recover either on the bill or on the original consideration.225 69; Rollins v. Bartlett, 20 Me. 319; the note being still treated as an unattested note.

217 Smith v. Dunham, 8 Pick. (Mass.) 246.

218 Ford V. Ford, 17 Pick. (Mass.) 418.

219 Church v. Fowle, 142 Mass. 12, 6 N. E. 764.

220 Fuller v. Green, 64 Wis. 159, 24 N. W. 907.

221 Com. v. Emigrant Industrial Sav. Bank, 98 Mass. 12; Wylie v. Railway Co., 41 Fed. 623. And see Morgan v. U. S., 113 U. S. 476, 5 Sup. Ct. 588. But see, contra, Suffell v. Bank, 9 Q. B. Div. 555, reversing 7 Q. B. Div. 270, as to Bank of England notes, such numbers being an important means of identification. See, however, Leeds & Co. Bank v. Walker, 11 Q. B. Div. 84, as to effect in later cases of section 64 of the bills of exchange act.

222 City of Elizabeth v. Force, 29 N. J. Eq. 587, reversing 28 N. J. Eq. 403. But see, contra, where the change was not apparent, Birdsall v. Russell, 29 N. Y. 220.

223 Crews v. Bank, 31 Grat. (Va.) 348.

224 Blackwell v. Denie, 23 Iowa, 63.

225 Byles, Bills, 228; Benj. Chalm. Dig. art. 249; Chit. Bills, 211; 2 Daniel,

Neg. Inst. 424; Alderson v. Langdale, 3 Barn. & Adol. 660; Wheelock v. Free

229

And an indorsee after maturity is barred, in like manner, as to the original consideration.226 And in such case the holder has no right of recovery in equity.227 A fraudulent and material alteration discharges both the note and the debt,228 but even a fraudulent alteration will not vitiate the paper, if it is immaterial.22 On the other hand, an alteration made by the drawer of a bill in order to make it accord with the original agreement or intention does not discharge the debt, although it may render the bill itself void. 230 But, if there is no privity between the parties as to the original debt, there can be no recovery upon it, e. g. in a suit by an indorsee against the drawee.233 On the other hand, even the fraudulent alteration of a man, 13 Pick. (Mass.) 165; Black v. Bowman, 15 Ill. App. 166; Martendale v. Follet, 1 N. H. 95; Whitmer v. Frye, 10 Mo. 348; White v. Hass, 32 Ala. 430; Taylor v. Taylor, 12 Lea (Tenn.) 714; Gladstone v. Dew, 9 U. C. C. P. 439; Lee v. Murdoch, 4 Pat. App. 261. Especially on a sealed note. Mills v. Starr. 2 Bailey (S. C.) 359.

226 Kennedy v. Crandell, 3 Lans. (N. Y.) 1.

227 Sharpe v. Bagwell, 16 N. C. 115.

228 Meyer v. Huneke, 55 N. Y. 412; Smith v. Mace, 44 N. H. 553; Ballard v. Insurance Co., 81 Ind. 239; Woodworth v. Anderson, 63 Iowa, 503, 19 N. W. 296; Walton Plow Co. v. Campbell, 35 Neb. 174, 52 N. W. 883; First Nat. Bank of Decorah v. Laughlin, 4 N. D. 391, 61 N. W. 473.

229 Moye v. Herndon, 30 Miss. 110.

230 Byles, Bills, 328; Benj. Chalm. Dig. art. 249; Chit. Bills, 211, 220; 2 Daniel, Neg. Inst. 424; 1 Edw. Bills & N. § 263; 2 Pars. Notes & B. 572; Sloman v. Cox, 1 Cromp., M. & R. 471, 5 Tyrw. 174; Hunt v. Gray, 35 N. J. Law, 227; York v. Janes, 43 N. J. Law, 332; Lewis v. Schenck, 18 N. J. Eq. 459; Vogle v. Ripper, 34 Ill. 100; Wallace v. Wallace, 8 Ill. App. 69; Clough v. Seay, 49 Iowa, 111; Morrison v. Huggins, 53 Iowa, 76, 4 N. W. 854; Sullivan v. Rudisill, 63 Iowa, 158, 18 N. W. 856; Merrick v. Boury, 4 Ohio St. 60; Matteson v. Ellsworth, 33 Wis. 488; Warren v. Layton, 3 Har. (Del.) 404; State Sav. Bank v. Shaffer, 9 Neb. 1, 1 N. W. 980; McClure v. Little, 15 Utah, 379, 49 Pac. 298. So, where the payee's agent made an alteration supposing he was authorized to do so, Krause v. Meyer, 32 Iowa, 566; Morrison v. Welty, 18 Md. 169; or where the alteration was made by one maker, Murray v. Graham, 29 Iowa, 520; or where all parties consented to it, Sutton v. Toomer, 7 Barn. & C. 416; or where the alteration was afterwards waived, Pritchard v. Smith, 77 Ga. 463; or was not material, First Nat. Bank of Port Huron v. Carson, 60 Mich. 432, 27 N. W. 589; or was made in good faith, Miller v. Stark, 148 Pa. St. 164, 23 Atl. 1058; Keene v. Weeks, 19 R. I. 309, 33 Atl. 446. And a note altered without fraud is still a thing of value, and may be recovered in trover. Booth v. Powers, 56 N. Y. 22, reversing 59 Barb. (N. Y.) 331.

231 Long v. Moore, 3 Esp. 155, note.

note by one of the makers will not prevent recovery by foreclosure of a collateral mortgage.232

233

Whether the alteration is fraudulent is a question for the jury." Where it has been made by the holder, it will raise a presumption that the original instrument was against his interest.234 But, if it is made in good faith by the drawer after acceptance, it will not discharge the acceptor from his liability to the drawer on the original consideration. 235 It has been held that an instrument, rendered void by alteration, is not available as evidence for any purpose.236 And even nominal damages cannot be recovered, where there is no evidence outside of the altered instrument.237

Alteration by a Stranger.

§ 1764. Even an alteration made by a stranger, while the instrument is in the custody of the owner, has been held to render it void because of the supposed negligence of the owner.238 But in the United States alteration by a stranger is a mere spoliation, and does not discharge the parties.29 But a special action on the case, or, per

232 Gillette v. Smith, 18 Hun (N. Y.) 10.

233 Bowers v. Jewell, 2 N. H. 543. So, where the alteration is apparent. Beaman v. Russell, 20 Vt. 210.

234 Love v. Dilley, 64 Md. 238, 1 Atl. 59, and 4 Atl. 290. But, if the alteration is against the holder's interest (e. g. in reducing the rate of interest), it will be prima facie evidence of his good faith. Keene v. Weeks, 19 R. I. 309, 33 Atl. 446.

235 Atkinson v. Hawdon, 2 Adol. & E. 628; Lewis v. Kramer, 3 Md. 265.

236 Jardine v. Payne, 1 Barn. & Adol. 671; Sweeting v. Halse, 9 Barn. & C. 365, 4 Man. & R. 287; Jones v. Ryder, 4 Mees. & W. 32, overruling Bishop v. Chambre, 1 Dans. & L. 83, 3 Car. & P. 55; Sutton v. Toomer, 7 Barn. & C. 416.

237 Chit. Bills, 220; Green v. Davies, 4 Barn. & C. 235.

238 Byles, Bills, 323; Chit. Bills, 209; 2 Daniel, Neg. Inst. 383; 2 Pars. Notes & B. 575; Davidson v. Cooper, 11 Mees. & W. 778, affirmed in 13 Mees. & W. 343; Bank of Hindostan v. Smith, 36 Law J. C. P. 241; Master v. Miller, 4 Term R. 320; Letcher v. Bates, 6 J. J. Marsh. (Ky.) 524.

239 2 Daniel, Neg. Inst. 384; 1 Edw. Bills & N. § 245; 2 Pars. Notes & B. 574; Colson v. Arnot, 57 N. Y. 253; Davis v. Carlisle, 6 Ala. 707; Langenberger v. Kroeger, 48 Cal. 147; Lee v. Alexander, 9 B. Mon, (Ky.) 25; Brooks v. Allen, 62 Ind. 401; Lubbering v. Kohlbrecher, 22 Mo. 596; Robinson v. Berryman, 22 Mo. App. 509; Piersol v. Grimes, 30 Ind. 129; U. S. v. Spalding, 2

haps, an action of trover, will lie against the person making such alteration.240 If an option to take bonds, indorsed on a bond and rendering it nonnegotiable, is erased by a thief, the erasure will have no effect.2+1 So, a bill will not be rendered void because it is altered by the holder's agent without authority,242 or by a justice of the peace, before whom suit was brought upon it.243 And, if one maker fraudulently erases his name without the knowledge of the holder, it will not discharge his co-maker.2++

But if the payee's agent alters the note after its delivery to him, and before delivering it to the payee, it will render it void.245 So, a surety will be discharged by an alteration made by one who afterwards became the holder,246 or by one of several joint holders.247 And in some states the statute provides that banks shall be liable to a bona fide holder for the original amount of any circulating bank note issued by them, and raised in the course of its circulation.248

Alteration by Mistake-Correction.

§ 1765. The accidental erasure of an indorsement will not affect the liability of parties.29 So, the accidental stamping of a waiver Mason, 478, Fed. Cas. No. 16,365; Murray v. Peterson, 6 Wash. 418, 33 Pac. 969; Andrews v. Calloway, 50 Ark. 358, 7 S. W. 449; Union Nat. Bank v. Roberts, 45 Wis. 373; Lisle v. Rogers, 18 B. Mon. (Ky.) 528. And the note may be declared on as originally made. Drum v. Drum, 133 Mass. 566. But the payee's clerk or agent is not a stranger to the paper in such sense. Eckert v. Louis, 84 Ind. 9; Keene v. Weeks, 19 R. I. 309, 33 Atl. 446. And if the holder afterwards sues on the note as altered by a stranger, he thereby ratifies the alteration, and forfeits his remedy on the original instrument. Perkins Windmill & Ax Co. v. Tillman (Neb.) 75 N. W. 1098.

240 Chit. Bills, 220; Paton v. Winter, 1 Taunt. 420.

241 Dinsmore v. Duncan, 57 N. Y. 573.

242 Ballard v. Insurance Co., 81 Ind. 239; Bigelow v. Stilphen, 35 Vt. 521. But see Morrison v. Welty, 18 Md. 169.

243 Boyd v. McConnell, 10 Humph. 68.

244 Daniel v. Daniel, Dud. (Ga.) 239.

245 Hamilton v. Hooper, 46 Iowa, 515.

246 Brooks v. Allen, 62 Ind. 401.

247 Thompson v. Massie, 41 Ohio St. 307.

248 MASSACHUSETTS (Pub. St. c. 118, § 75); MAINE (Rev. St. c. 47, § 32). 249 Brett v. Marston, 45 Me. 401.

over two indorsements instead of one,250 or the cancellation of a note by the bank on payment by an indorser,251 or by the payee; 252 or of an acceptance by the referee in case of need.2 So, an alteration made by an agent by mistake as to his supposed authority.254

255

253

256

If a special indorsee, acting as agent to sell a bill for the drawer, erases the special indorsement upon the sale by him, he may afterwards, on taking up the bill, restore the indorsement and recover as indorsee.2 So, where a payee, desiring to transfer a note to his daughter, ignorantly erases his own name and substitutes hers, and afterwards restores his name as payee, and indorses it regularly, the indorsee may recover notwithstanding the alteration.2 So, it may be proved that a mutilation was made by accident by an infant child of the holder; 257 or that erasures were made to carry out a proposed compromise entered into by the holder's agent, and not confirmed by the holder.258 In general, an alteration made merely to correct a mistake is not material and does not avoid the instrument.259 But whether the intention was to vary the contract or

250 Gordon v. Bank, 144 U. S. 97, 12 Sup. Ct. 657.

251 Whitlock v. Manciet, 10 Or. 166.

252 Boulware v. Bank, 12 Mo. 542.

253 The mistake being at once corrected and noted. Raper v. Birkbeck, 15 East, 17.

254 Broughton v. Fuller, 9 Vt. 373; Brooks v. Allen, 62 Ind. 401; Van Brunt v. Eoff, 35 Barb. (N. Y.) 501.

255 Nevins v. De Grand, 15 Mass. 436.

256 Horst v. Wagner, 43 Iowa, 373.

257 Frazer v. Boss, 66 Ind. 1; Rhoads v. Frederick, 8 Watts (Pa.) 448.

258 Abbe v. Rood, 6 McLean, 106, Fed. Cas. No. 6.

259 Byles, Bills, 435; Benj. Chalm. Dig. art. 248; Chit. Bills, 212; 2 Daniel, Neg. Inst. 426; 2 Pars. Notes & B. 569; Gardner v. Walsh, 5 El. & Bl. 83; Bathe v. Taylor, 15 East, 416; Webber v. Maddocks, 3 Camp. 1; Cole v. Hills, 44 N. H. 227; Shepard v. Whetstone, 51 Iowa, 457, 1 N. W. 753. E. g. to correct a misdescription of the land for which the note was given, McRaven v. Crisler, 53 Miss. 542; or a misnomer, Derby v. Thrall, 44 Vt. 413; or a misplaced signature, Ryan v. Bank, 148 Ill. 349, 35 N. E. 1120; Fisher v. King, 153 Pa. St. 3, 25 Atl. 1029; Lynch v. Hicks, 80 Ga. 200, 4 S. E. 255; or an unauthorized signature, Waldorf v. Simpson, 15 App. Div. 297, 44 N. Y. Supp. 921; or attestation, Church v. Fowle, 142 Mass. 12, 6 N. E. 764; or a date, Ames v. Colburn, 11 Gray (Mass.) 390; Duker v. Franz, 7 Bush (Ky.) 273; Jessup v. Dennison, 2 Disn. (Ohio) 150; or to fill in the number of months the bill is to run, Conner v. Routh, 7 How. (Miss.) 176; or to change "other" to