counted at more than five per cent. before the statute under the 1 Vict. c. 80, the real security is not tainted with usury.(d)

But now the statute 17 & 18 Vict. c. 90, sweeps away the usury laws altogether. And it has been held that bills accepted since the repeal in renewal of usurious bills accepted before the repeal are not without consideration.(e)

In a declaration or plea, grounded on the statute of 12 Anne, st. 2, c. 16, it was not necessary to negative the exception introduced by the 2 & 3 Vict. c, 37. The exception must have come from the other side.(f)

And in stating that exception it lay on the party introducing it to aver not only that the contract was after the passing of the statute of Victoria, but that it did not relate to land.(g)

(d) Bell v. Coleman, 15 L. J., C. P. 2; 2 C. B. 268 (52 E. C. L. R.), s. c. (e) Flight v. Read, 32 L. J. 265; 1 H. & C. 703, s. c.

(ƒ) Thibault v. Gibson, 12 M. & W. 88.

(g) Washbourne v. Burrows, 16 L. J., Exch. 266; 1 Exch. 107, s. c.

1

IN treating of the alteration of a negotiable instrument, we will consider the effect of alteration; first, at common law; and, secondly, under the Stamp Acts.

First, at common law. If a deed, well and sufficiently made in its creation, shall be afterwards altered by rasure, interlining, addition, drawing a line through the words, though they be still legible, or by writing new letters upon the old in any material place or part of it, either by the party that hath the deed, or any other whomsoever, unless the alteration be by him who is bound by the deed (for he shall not take advantage of his own wrong), or by his consent, the deed has lost its force, and is become void. (a)

And by recent solemn decision, a deed, bill of exchange, promissory note, guaranty, or any other executory written contract, is avoided by an alteration in a material part, made while it is in the custody of the plaintiffs, although that alteration be by a stranger.(b)1

(a) Sheppard's Touchstone 68. And a deed is not it seems vacated at common law if the alteration, though material, were with the consent of all the parties: Markham v. Gonaston, Cro. Eliz. 627; Zouch v. Clay, 2 Lev. 35; Com. Dig. Fait, F. 1.

(b) Davidson v. Cooper, 11 M. & W. 778; affirmed in error, 13 M. & W. 343; Bank of Hindustan v. Smith, 36 L. J., C. P. 241.

It is held in America that an alteration by a stranger, though material, will not render the instrument inoperative: see 6th American ed. of Byles on Bills, p. 482.

1An alteration by a stranger, though material, will not render the instrument inoperative: Nicholls v. Johnson, 10 Conn. 192; Medlin v. Platt County,

For a person who has the custody of an instrument is bound to preserve it in its integrity. And as it would be avoided by his fraud *in altering it himself, so it shall be avoided by his laches in suffering another to alter it.

[*324]

The rules relating to alteration or rasure of deeds apply (at least for the most part) to other written contracts, and to bills and notes. Thus, where a bill was drawn payable to A. B., and whilst in his possession the date was altered, and the bill was subsequently indorsed to the plaintiffs for value, it was held that they could not recover against the acceptor. "It seems admitted," says Ash

8 Missouri 235; Davis v. Carlisle, 5 Alabama 707; Ford v. Ford, 17 Pick. 418; Waring v. Smyth, 2 Barb. Ch. Rep. 119; Lee v. Alexander, 9 B. Monroe 25; Labbering v. Kohlbrecher, 22 Missouri 596. Alteration by payee's wife, without his knowledge, avoids the note: Morrison v. Welty, 18 Maryland 169. An alteration by the agent of the maker in good faith does not avoid it: Van Brunt v. Eoff, 35 Barbour 501.

As to alteration generally, see Woolfolk v. Bank, 10 Bush 504; Draper v. Wood, 112 Mass. 315; Booth v. Powers, 50 N. Y. 22; Greenfield Bank v. Stowell, 123 Mass. 196; Hewins v. Cargill, 67 Me. 554; Aldrich v. Smith, 37 Mich. 468; Brown v. Straw, 6 Neb. 536; Taddiken v. Cantrell, 69 N. Y. 597; McGuinness v. Bligh, 11 R. I. 1; Page v. Danaker, 43 Wisc. 221; Coburn v. Webb, 56 Md. 96; Lemay v. Williams, 32 Ark. 166; Robinson v. Reed, 46 Iowa 219; Hamilton v. Hooper, Ibid. 515; Lamb v. Paine, Ibid. 550; Paramore v. Lindsey, 63 Mo. 63; Townsend v. Wagon Co., 10 Neb. 615.

1

An alteration by the payee or holder of a bill or note in any material respect avoids the instrument as to the maker and all parties except the person making the alteration, even in the hands of an innocent indorsee for value: Stephens v. Graham, 7 Serg. & Rawle 508; Cloud v. Stout, 5 Litt. 205; Pankey v. Mitchell, 1 Breeze 301; Mitchell v. Ringgold, 3 Har. & Johns. 159; Trigg v. Taylor, 27 Missouri 245; Hodge v. Gilman, 20 Illinois 437. Even though it could not be detected by the most careful scrutiny: Wade v. Withington, 1 Allen 561. Though by the alteration the day of payment is protracted, the note is nevertheless void: United States Bank v. Russell, 3 Yeates 391; Miller v. Gilleland, 19 Penna. State Rep. 119; Owings v. Arnot, 33 Missouri 406; Lisle v. Rogers, 18 B. Monroe 528. If the note was dated wrong by mistake, yet an alteration without the maker's consent, express or implied, renders it void: Bowers v. Jewell, 2 New Hamp. 543. See Hocker v. Jamison, 2 Watts & Serg. 438; Henderson v. Wilson, 6 How. Miss. Rep. 65. Writing in the margin "payable at the Bank of America," held to be a material alteration: Woodworth v. Bank of America, 19 Johns. 391; Simpson v. Stackhouse, 9 Barr 186; Hill v. Cooley, 10 Wright 259; Sturges v. Williams, 9 Ohio (N. S.) 443; Southwark Bank v. Gross, 11 Casey 80. An accommodation bill was drawn for the purpose of being discounted at a bank, and at

hurst, J., "that if this had been a deed, the alteration would have vitiated it. Now, I cannot see any reason why the principle on

the foot of it was a memorandum, signed by the last indorser, directing the proceeds of the bill to be credited to the drawer. On the trial of a suit on the bill by the last against a prior indorser, it appeared that this memorandum had been cut off. It was held that the memorandum was no part of the bill, and that its being taken off in no way affected the rights of the parties to the bill Hubbard v. Williamson, 25 Iredell 397.

If blank spaces be left to be filled after execution, the consent of the party executing that they shall be afterwards filled is to be implied: Wiley v. Moon, 17 Serg. & Rawle 438; Smith v. Crooker, 5 Mass. 538; Jordan v. Neilson, 2 Wash. 164; Boardman v. Gore, 1 Stewart 517; Bank v. Curry, 2 Dana 142; Stahl v. Berger, 10 Serg. & Rawle 170; Commonwealth Bank v. McChord, 4 Dana 191; Douglass v. Scott, 8 Leigh 43; Richmond Manufacturing Co. v. Davis, 7 Blackford 412; Ives v. Farmers' Bank, 2 Allen 236. In the case of the printed form of a note, filled up by the maker and then indorsed for his accommodation by another, and then altered by the maker to a larger sum, by taking advantage of some vacant space in the form, held that the indorser was only liable for the smaller sum: Worrall v. Gheen, 3 Wright 388. An alteration which does not vary the meaning of an instrument does not avoid it, though made by the party claiming under it: Nicholls v. Johnson, 10 Conn. 192; Granite Railway Co. v. Bacon, 15 Pick. 239; Morrill v. Otis, 12 N. Hamp. 466; Pequawket Bridge v. Mathes, 6 N. Hamp. 139; Mathis v. Mathis, 6 Dev. & Batt. 60; Harris v. Bradford, 4 Alabama 214; Gardner v. Sisk, 3 Barr 326; Burnham v. Ayer, 35 New Hamp. 351; Moye v. Herndon, 30 Miss. 110; Humphreys v. Crane, 5 California 173. A promissory note was made payable to a partnership under one name and indorsed by a surety, and was afterwards altered by the maker and payee, without the knowledge of the surety, so as to be payable to the same partnership by a different name; held, in an action by the payee against the surety, that the alteration was immaterial and did not affect the validity of the note: Arnold v. Jones, 2 Rhode Island 345.

When a person not present at the execution of a promissory note afterwards puts his name thereto as a witness, by the procurement of the payee, it avoids the note: Homer v. Wallis, 11 Mass. 309. Aliter where a person present at the execution afterwards affixes his name as a witness without any fraudulent intent: Smith v. Dunham, 8 Pick. 249; see Marshall v. Gougler, 10 Serg. & Rawle 164; Ravisies v. Alston, 5 Alabama 297; Stewart v. Preston, 1 Branch 10; Blackwell v. Lane, 4 Dev. & Batt. 113; Adams v. Frye, 3 Metcalf 103; Henning v. Werkheiser, 8 Barr 518; Thornton v. Appleton, 29 Maine 298; State v. Gherkin, 7 Iredell 206. The alteration of a note procured by the payee by the addition of the name of another party as maker, after its execution and delivery by the former parties and without their consent, avoids it as to such original parties: Bowers v. Briggs, 20 Indiana 139; Henry v. Coats, 17 Ibid. 161. Where the payee wrote his name under the names of the makers, and added after his own name the word "security," it was held to be a mate

which a deed would have been avoided should not extend to a case of a bill of exchange. There is no magic in parchment or wax, and the principle to be extracted from the cases is that any alteration avoids the contract. If A. B. had brought this action, he could not have recovered, because he must suffer from any alteration of the bill whilst in his custody; the same objection must hold against the plaintiffs who derive title from him."(c) So,

(c) Master v. Miller, 4 T. R. 320; in error, 2 H. Bl. 110; Hirschman v. rial alteration: Chappell v. Spencer, 23 Barbour 584. Alteration by adding "with interest," though without fraudulent intent, vitiates the note: Fay v. Smith, 1 Allen 477. If the maker, after it is indorsed, add "with interest," it avoids the note, even though the alteration was made before delivery to the payee Waterman v. Vose, 43 Maine 504. A note made by two, subsequently altered by one, is no longer binding on the other: Crockett v. Thomason, 5 Sneed. 342. If the payee make a material alteration, he can neither recover on the note nor on the contract for which the note was given: White v. Hass, 32 Alabama 430. The payee of a note given for the price of goods sold, having altered it without fraud, may recover on the common counts: Merrick v. Boury, 4 Ohio (N. S.) 60.

For cases in which an alteration has been held to be material, see McVean v. Scott, 46 Barb. 379; Hall's Adm'x v. McHenry, 19 Iowa 521; Grimes v. Piersol, 25 Indiana 246; Hill v. Cooley, 10 Wright 259; Miller v. Reed, 3 Grant 51; Mahaiwe Bank v. Douglass, 31 Conn. 170; Cole v. Hills, 44 N. Hamp. 227; Chadwick v. Eastman, 53 Maine 12; Wood v. Steele, 6 Wallace (S. C.) 80; Low v. Argrove, 30 Geo. 129; Elbert v. McClelland, 8 Bush 577; Wallace v. Jewell, 21 Ohio St. 163; Holmes v. Trumper, 22 Mich. 427; Kennedy v. Crandell, 3 Lansing 1; Flint v. Craig, 59 Barb. 319; Wait v. Pomeroy, 20 Mich. 425; Lincoln v. Lincoln, 12 Gray 45; Kountz v. Hart, 17 Indiana 329; Chism v. Toomer, 27 Ark. 108; Washington Bank v. Ecky, 51 Mo. 272; Major v. Hanson, 2 Biss. 195; Espy v. Bank, 18 Wall. 605; Bradley v. Mann, 37 Mich. 1; Cochran v. Nebeker, 48 Ind. 459; Bank v. Dunn, 62 Mo. 79; Bank v. Gay, 63 Mo. 33; Swift v. Barber, 28 Mich. 503; Morehead v. Bank, 5 W. Va. 74; Benedict v. Cowden, 49 N. Y. 396.

Taking the name of additional joint maker of a note, without consent of the previous signers, discharges them; the new maker is bound for the whole note: Hamilton v. Hooper, 46 Iowa 515.

For cases of immaterial alteration, see McCramer v. Thompson, 21 Iowa 244; Terry v. Hazlewood, 1 Duvall 104; Levi v. Mendell, Ibid. 77; Holland v. Hatch, 15 Ohio St. 464; Corcoran v. Doll, 32 Cal. 82; Jones v. Berryhill, 25 Iowa 289; Todd v. Bank of Kentucky, 3 Bush 626; Smith v. Lockridge, 8 Bush 423; Derby v. Thrall, 44 Verm. 413; Bridges v. Winter, 42 Miss. 135; Houghton v. Francis, 29 Illinois 244; McCaughey v. Smith, 27 N. York 39; McRaven v. Crisler, 53 Miss. 542; Hirst v. Wagner, 43 Iowa 373; Goodenow v. Curtis, 33 Mich. 505; Herrick v. Baldwin, 17 Minn. 209; Hunt v. Gray, 35 N. J. (Law) 227; Brugham v. Reddy, 5 Benedict 266.