332

CHAPTER XXI.

ALTERATION OR FORGERY OF A BILL OR NOTE.

Personating the Party

CHAPTER
XXI.

Effect of

Procuring to Utter

Statement of the Instrument

in the Indictment

Where Several make dis

Party whose Name is

Signing.

343

Misrepresentation of Au

Where an alteration will

thority.

not vitiate

335

Alteration.

344

.

Uttering

344

.

To Correct a Mistake.

. 336

344

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 alteration at writing new letters upon the old in any material place or common law. 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).

(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.

XXI.

And by a recent solemn decision, a deed, bill of ex- CHAPTER change, promissory note, guarantee, 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). 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.

The rules relating to alteration or rasure of deeds apply of bills and (at least, for the most part) to other written contracts, and notes. 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 Ashhurst, J., “that if this had been a deed, the alteration would have vitiated it. Now, I cannot see any reason why the principle, on 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, where the drawer, without the consent of the acceptor, added to the acceptance the words, " Payable at Mr. B.'s, Chiswell Street," it was held that this was a material alteration, discharging the acceptor (d). And the same point has been repeatedly decided since the 1 & 2 Geo. 4, c. 78. "Suppose," says Abbott, C.J., "a bill so altered to be indorsed to a person ignorant of the alteration; his right to sue his indorser would, as the bill appears, be complete, upon default made where the bill is payable; whereas, in truth, the acceptor, not having in reality undertaken to pay there, would have committed no default by such non

(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.

(c) Master v. Miller, 4 T. R. 320; in error, 2 H. Bl. 140; Hirschman v. Budd, L. R., 8 Ex. 171; Vance v. Lowther, L. R., 1 Ex. Div. 126. The defence was capable of being raised by a lea traversing the acceptance; ut see now Ord. XIX. rr. 6 & 15.

(d) Cowie v. Halsall, 4 B. & Al. 197; 3 Stark. 36. Code, s. 64 (2).

XXI.

CHAFTER payment. I am of opinion, therefore, that the alteration is in a material part of the bill, and the acceptor is, in consequence, discharged " (e).

UNDER THE

But it has been held by the same learned judge (ƒ), and by the Court of Exchequer, that a similar addition, with the consent of the acceptor, would not invalidate the instrument, either at common law or under the Stamp Act. Where a bill was addressed to A. B. & Co., and the acceptance was by A. and B., and the address was afterwards altered to correspond with the acceptance, as the acceptors would be liable either way, the alteration was held to be immaterial (g). An alteration of a foreign bill, by adding either on the face of the bill or to the indorsements the rate of exchange, according to which the bill is to be paid, is fatal (h).

The addition of the words "interest to be paid at six per cent. per annum," written at the corner of the note, and not in the body, is a material alteration avoiding the note (i).

But, secondly, even if the consent of all parties have STAMP ACTS. been obtained to an alteration in a material part, such alteration, nevertheless, avoids the bill under the stamp laws; for it is become a new and different instrument, and therefore requires a new stamp; which stamp cannot, as we have seen, then be affixed (j). Any alteration in the date, sum (k), or time of payment, the insertion of words rendering negotiable an instrument which before was not so, altering the words "value received" into an expression of the particular consideration which passed, are respec

(e) M'Intosh v. Haydon, R. & M. 362; Desbrowe v. Weatherby, 1 M. & Rob. 438; 6 C. & P. 758; Taylor v. Moseley, 1 M. & Rob. 439, n.; Semple v. Cole, 8 L. J., Exch. 155. These decisions have been recently under review and confirmed by the Court of Queen's Bench in Burchfield v. Moore, 23 L. J., Q. B. 261; 3 E. & B. 683; Gardner v. Walsh, 5 E. & B. 83.

(f) Stevens v. Lloyd, M. & M. 292; and see Jacobs v. Hart, 6 M. & S. 142; Walter v. Cubley, 2 C. & M. 151; but in Walter v. Cubley the attention of the Court was not drawn to Gibb v. Mather, 8 Bing. 221; 1 Moore & S. 387; 2 C. & J. 254. Would not the

alteration have been material in an action against the drawer? Stevens v. Lloyd, M. & M. 292; and if so, was not the legal effect of the instrument altered?

(g) Farquhar v. Southey, M. & M. 17; 2 C. & P. 497; Hamelin v. Bruck, 15 L. J., Q. B. 343; 9 Q. B. 306.

(h) Hirschfield v. Smith, 35 L. J., C. P. 177; L. R., 1 C. P. 340, though the additions were in red ink.

(i) Warrington v. Early, 23 L. J., Q. B. 47.

(j) Wilson v. Justice, Bayley, 6th ed. 118; Bowman v. Nichol, 5 T. R. 537: 1 Esp. 81.

(k) Hamelin v. Bruck, 15 L. J., Q. B. 343; 9 Q. B. 306.

tively material alterations, avoiding the bill under the CHAPTER Stamp Acts (1). But the addition of another name to a XXI. joint and several note on a different part of the face of the note, with the assent of all parties, has been held, ut res magis valeat, to operate as an indorsement (m).

There are, however, two cases in which an alteration, Where an though in a material part, will not vacate the instrument; alteration will not vitiate. first, where such an alteration is made before the bill is issued, or become an available instrument; and, secondly, where the bill is altered to correct a mistake, or supply an omission, and in furtherance of the original intention of the parties (n).

Thus, where the drawer of a bill, payable to his own Before the order, sent it to the drawee for acceptance, and the drawee bill is issued. requested that a longer time might be allowed for payment, and an alteration to that effect was accordingly made with the consent of the drawer, and the bill was afterwards accepted; it was held that, the alteration being made before the bill was an available instrument against any party, a new stamp was unnecessary (o). Upon the same principle, where three persons joined, as drawer, acceptor, and indorser, in the fabrication of an accommodation bill, and the date was altered before it came into the hands of a holder for value; it was held that, as the accommodation parties could not sue upon it inter se, it was not, till it came into the hands of a holder for value, an available instrument, and therefore that an alteration before that time did not vitiate it. "The question," says Abbott, C.J., "is, whether this alteration made it a new bill? Now, undoubtedly, when an accommodation bill has the different parties written upon it, it is, in some sense of the word, a bill of exchange; but it is utterly unavailable as a security for money, until it is issued to some real holder for a valuable consideration. It first became a bill of exchange when it was issued to the indorsee for a valuable consideration."

(1) Bathe v. Taylor, 15 East, 412; Walton v. Hastings, 4 Camp. 223; 1 Stark. 215; Outhwaite v. Luntley, 4 Camp. 179; Knill v. Williams, 10 East, 431. The words "not negotiable" may be added at any time to a crossed cheque, see p. 30.

(m) Ex parte Yates, 27 L. J., Bank. 9; 2 De G. & J. 191; Gardner v. Walsh, 5 E. & B. 83;

CHAPTER "Here," adds Best, J., "at the time when the alteration XXI. was made, the bill was a perfect bill in form, but it did

To correct a mistake.

not constitute a valid contract between the parties. A bond is a perfect instrument before delivery; but still an alteration made before delivery will not vitiate it"(p). But if either payee or indorsee have given value for it, so that the drawer is liable, an alteration, though before acceptance, vacates the bill. "In such a case," says Lord Ellenborough, "it does not remain in fieri till acceptance. As to the drawer, it was before then a perfect instrument (q). When the date was altered, a new bill was drawn, and that could not be done without a new stamp" (r). So, if a promissory note be signed by A., and subsequently by B. as surety for A., whilst the note is in the hands of the payee, it will be void, unless the signature of B. is in pursuance of a previous agreement at the time of making the note (s). And an altered bill will be void in the hands of an innocent indorsee, as well as in the hands of parties cognizant of the alteration (t).

If, again, the alteration were merely to correct a mistake, or to make a bill what it was originally intended to be, it will not avoid it under the Stamp Act. Thus, where the drawer intended to make the bill negotiable, and indorsed it over, but had omitted the words "or order" their subsequent insertion in pursuance of the original intention was held not to vacate the bill (u). So, where a bill having been dated, by mistake, 1822, instead of 1823, the agent of the drawer and acceptor, to whom it had been given to be delivered to the indorsee, without their knowledge or consent corrected the mistake; it was held, that such alteration did not vacate the bill (x). So, again, a man, who has agreed beforehand to be a surety, may, after the advance to

(p) Downes v. Richardson, 5 B. & Ald. 674 ; 1 D. & R. 332; Tarleton v. Shingler, 7 C. B. 812. An alteration of the date before issue without the consent of the acceptor avoids the acceptance; Engel v. Stourton, 5 Times. L. R. 444. As to the alteration of a deed after execution by one party, see Jones v. Jones, 1 C. & M. 721; before complete delivery, Spicer v. Burgess, 1 C., M. & R. 129; 4 Tyr. 598.

(q) Walton v. Hastings, 4 Camp. 223; 1 Stark. 215.

(r) Outhwaite v. Luntley, 4 Camp. 179.

(s) Clerk v. Blackstock, Holt, N. P. C. 474. See Ex parte White, 2 Deac. & Chitt. 334.

(t) Outhwaite v. Luntley, 4 Camp. 179; if apparent. Code, s. 64, prov.

(u) Kershaw v. Cox, 3 Esp. 246; 10 East, 437; Jacobs v. Hart, 2 Stark. 45; 6 M. & Sel. 142; Byron v. Thompson, 11 Ad. & Ell. 31; 3 P. & D. 71.

(x) Brutt v. Picard, R. & M. 37.