An alteration of a contract is said to operate a discharge of it. If the alteration be by a stranger, and is material, and the original words cannot be certainly restored, it avoids the instrument, on the ground that it is no longer the instrument of the parties. (m)l

(l) Jones v. Johnson, 8 Watts & S. 270. And see Twopenny v. Young, 3 B. & C. 208.

(m) Formerly a material alteration by a stranger was held to render the instrument void, notwithstanding the original words might be restored. Thus, in Pigot's case, 11 Rep. 27, it was resolved, that when any deed is altered in a point material, by the plaintiff himself, or by any stranger, without the privity of the obligee, be it by interlineation, addition, raising, or by drawing of a pen through a line, or through the midst of any material word, that the deed thereby becomes void: as if a bond is to be made to the sheriff for appearance, etc., and in the bond the sheriff's name is omitted,

1 A material alteration of an instrument, as of a note, avoids it, and. if negotiated, even in the hands of an innocent holder. Suffell v. Bank of England, 9 Q. B. D. 555; Draper v. Wood, 112 Mass. 315; Citizens' Bank v. Richmond, 121 Mass. 110; Schnewind v. Hacket, 54 Ind. 248; Hewins v. Cargill, 67 Me. 554; AEtna Bank v. Winchester, 43 Conn. 391; Neff v. Horner, 63 Penn. St. 327; but not if done by consent of parties as against such, Booth v. Powers, 56 N. T. 22, 31; Stoddard v. Penniman, 113 Mass. 386; Myers v. Nell, 84 Penn. St. 369 ; or if done to effectuate the parties' intention, Derby v. Thrall, 44 Vt 413; Duker v. Franz, 7 Bush, 273; McRaven v. Crisler, 53 Miss. 542; Hanson v. Crawley, 41 Ga, 303. The following alterations have been held material: The changing the numbers on bank-notes, to prevent their being traced, Suffell v. Bank of England, 9 Q. B. D. 555; the changing the date of a note, Vance v. Lowther, 1 Ex. D. 176; Hirschman v. Budd, L. R. 8 Ex. 171; Miller v. Gilleland, 1 Am. L. Reg. 672; the addition of interest or changing the rate, McGrath v. Clark, 56 N. Y. 34; Holmes v. Trumper, 22 Mich. 427; Schnewind v. Hacket, 54 Ind. 248; Coburn v. Webb, 56 Ind. 96; Kilkelly v. Martin, 34 Wis. 525; Harsh v. Klepper, 28 Ohio St 200; Marsh v. Griffin, 42 la. 403; see, however, Rainbolt v. Eddy, 34 la. 440; Glover v. Robbing, 49 Ala. 219; the signing of another person as a party, Wallace v. Jewell, 21 Ohio St 163; Dickerman v. Miner, 43 la. 508; the insertion of words of negotiability, Belknap v. Bank of N. A. 100 Mass. 376; and the cutting off of any memorandum, Benedict v. Cowden, 49 N. Y. 396; Gerrish v. Glines, 56 N. H. 9; Wait v. Pomeroy, 20 Mich. 425; Cochran v. Nebeker, 48 Ind. 459; Palmer v. Largent, 5 Neb. 223. One paying a note in ignorance of its having been materially altered after execution by him, may recover money so paid. Bank of Commerce v. Mechanics' Bank Ass. 55 N. Y. 211; Sheridan v. Carpenter, 61 Me. 83; City Bank v. First Bank, 45 Tex. 203. An immaterial alteration in a note will not affect its validity. Manufacturers' Bank v. Follett. 11 R. I. 99; Burlintrame v. Brewster, 79 111. 515; Palmer v. Largent, 5 Neb. 223. If a note is innocently altered, the holder may recover on the original consideration, Krause v. Meyer, 32 la. 565; or if an alteration be made without fraud, the note may be restored and recovery had, Kounts v. Kennedy, 63 Penn. St. 187; Horn v. Wagner, 43 la. 373. It has also been held, that a bona fide holder of note previously altered can recover upon it in its original form. Myers v. Nell, 84 Penn. St. 369, 373, contra; Citizens' Bank v. Richmond, 121 Mass. 110.

And a material alteration in commercial paper, destroys the nonand after the delivery thereof his name is interlined, either by the obligee or a stranger, without his privity, the deed is void. So if one makes a bond of £10, and after the sealing of it another £10 is added, which makes it £20, the deed is void. So if a bond is raised, by which the first word cannot be seen, or if it is drawn with a pen and ink through the word, although the first word is legible, yet the deed is void, and shall never make an issue, whether it was in any of these cases altered by the obligee himself, or by a stranger without his privity. Markham v. Gonaston, Cro. Eliz. 626, is to the same effect. And such is still held to be the law by all the common law courts in England, as appears by the case of Davidson v. Cooper, 11 M. & W. 778, 13 id. 343. That was an action of assumpsit on a guarantee. The defendants pleaded that after the guarantee or agreement in writing had been made and signed, and after the defendants had promised as in the declaration mentioned, and after the guarantee had been delivered to the plaintiff, and while it was in his hands, it was, without the knowledge or consent of the defendants, altered in a material particular by some person to the defendants unknown, and its nature and effect materially changed, by such unknown person affixing a seal by or near to the signature of the defendants, so as to make it purport to be sealed by the defendants, and to be the deed of the defendants; by reason of which alteration the said guarantee became void in law. The plaintiff took issue upon this plea, and upon the trial a verdict was found for the defendants. Afterwards, upon a motion to enter judgment for the plaintiff non obstante veredicto, on the ground that it was not stated in the plea that the alteration was made by the plaintiff, or with his privity, Lord Abinger, in delivering the judgment of the Court of Exchequer, said: "There is no doubt, but that, in the case of a deed, any material alteration, whether made by the party holding it or by a stranger, renders the instrument altogether void from the time when such alteration is made. This was so resolved in Pigot's case; and though it was contended in argument, that the rule has been relaxed in modern times, we are not aware of any authority for such a proposition, when the altered deed is relied on as the foundation of a right sought to be enforced. The case is different, where the deed is produced merely as proof of some right or title created by, or resulting from, its having been executed; as in the case of an ejectment to recover lands which have been conveyed by lease and release, or now by release only. There, what the plaintiff is seeking to enforce, is not, in strictness, a right under the lease and release, but a right to the possession of the land, resulting from the fact of the lease and release having been executed. The moment after their execution the deeds become valueless, so far as they relate to the passing of the estate, except as affording evidence of the fact that they were executed. If the effect of the execution of such deeds was to create a title to the land in question, that title cannot be affected by the subsequent alteration of the deeds; and the principles laid down in Pigot's case would not be applicable. But if the party is not proceeding by ejectment to recover the land conveyed, but is suing the grantor under his covenants for title or other covenants contained in the release, there the alteration of the deed in any material point, after its execution, whether made by the party or by a stranger, would certainly defeat the right of the party suing to recover. The principle thus recognized in Pigot's case, with respect to deeds, was, in the case of Master v. Miller, 4 T. R. 820, and 2 H. Bl. 141, established as to bills of exchange and promissory notes; and the ground on which the decision in that case was put by the court of error was, that in all such instruments a duty arises analogous to the duty arising on deeds. The instrument itself proves the duty, without any further proof to establish it, ubi codem est ratio, cadem est lex. The law having been long settled as to deeds, was held to be also applicable to these mercantile instruments, which, though not under seal, yet possess properties, the existence of which in the case of deeds was, it must be presumed, the foundation of the rule." And see Burchfield v. Moore, 8 Ellis & B. 688, 25 Eng. L. & Eq. 123; Gardner v. Walsh, 6 Ellis & B. 82, 82 Eng. L. & Eq. 162. "But the decisions do not stop there. In Powell v. Divett, 15 East, 29, the Court of King's Bench extended the doctrine to the case of bought and sold notes, holding, that a vendor who, after the bought and sold notes had been exchanged, prevailed on the broker, without the consent of the vendee, to add a terra to the bought note for his (the vendor's) benefit, thereby lost all title to recover against the vendee. The ground on which the court proceeded was, that the bought note, having been fraudulently altered consenting party's liability, although the alteration was made before by the plaintiff, could not be received in evidence for any purpose, and as no other evidence was admissible, the plaintiff had no means of asserting any claim whatever. The court considered that Master v. Miller expressly decided the point before them, and Mr. Justice Le Blanc, taking, it should seem, his view of that case, not from the judges in the Exchequer Chamber, but from the wider line of argument adopted by Lord Kenyan in the court below, expressly stated that Master v. Miller was not confined to negotiable securities. Now, the case of Powell v. Divett was decided more than thirty years ago, and has ever since been treated as law; and therefore, although we certainly feel that there are difficulties in the extent to which it carries the doctrine of Pigot's case, yet we do not feel it open to us, if we were inclined to do so, to act against that authority; and the only question therefore is, whether there is any real distinction in principle between this case and that of Powell v. Divett. The only difference is, that in Powell v. Divett, the alteration was made by the plaintiffs, who held the written instrument; whereas, in this case, it is not ascertained by whom the alteration was made; the jury finding that the alteration was made by some person to them unknown, whilst the document was in the hands of the plaintiff. After much reflection, we are of opinion that this does not create any real distinction between the two cases. The case of Powell v. Divett was decided on the ground that written instruments, constituting the evidence of contracts, are within the doctrine laid down in Master v. Miller, as applicable to negotiable securities; and the doctrine established in Master 9. Miller was, that negotiable securities are to be considered no less than deeds, within the principle of the law laid down in Pigot's case. That law is, that a material alteration in a deed, whether made by a party or a stranger, is fatal to its validity; and applying that principle to the present case, it is plain that there is no real difference between this case and that of Powell v. Divett . . . Considering it, therefore, impossible to distinguish this case from Powell v. Divett, we think that the plea affords a good defence to the action, and consequently the rule for judgment non obstante veredicto must be discharged." The case was afterwards carried by writ of error to the Exchequer Chamber, where the judgment of the court below was unanimously affirmed. Lord Denman, in delivering the judgment, said: "After much doubt we think the judgment right. The strictness of the rule on this subject, as laid down in Pigot's case, can only be explained on the principle, that a party who has the custody of an instrument made for his benefit, is bound to preserve it in its original state. It is highly important for preserving the purity of legal instruments that this principle should be borne in mind, and the rule adhered to. The party who may suffer has no right to complain, since there cannot be any alteration except through fraud, or laches on his part. To say that Pigot's case has been overruled, is a mistake; on the contrary, it has been extended; the authorities establishing, as common sense requires, that the alteration of an unsealed paper will vitiate it." And see Mollett v. Wackerbarth, 6 C. B. 181. There seems, however, at one time to have been an inclination on the part of the English courts to relax the rule declared in Pigot's case. Thus, in Henfree v. Bromley, 6 East, 800, it was held, that an award altered by the umpire after it was made up ready for delivery, and notice given to the parties, was not entirely vitiated thereby, but that the original award being still legible, was good, the same as if such alteration had been made by a mere stranger without the privity or consent of the party interested. Lord Ellenborough, after observing that the umpire had no authority to make the alteration, said: "Still, however, I see no objection to the award for the original sum of £57; for the alteration made by him afterwards was no more than a mere spoliation by a stranger, which would not vacate the award." And again: "I consider the alteration of the award by the umpire, after his authority was at an end, the same as if it had been made by a stranger, by a mere spoliator. And I still read it with the eyes of the law as if it were an award for £67, such as it originally was. If the alteration had been made by a person who was interested in the award, I should have felt myself pressed by the objection; but I can no more consider this as avoiding the instrument, than if it had been obliterated or cancelled by accident." The same inference may be drawn from Hutchins v. Scott, 2M. & W. 800. There, by an agreement between the plaintiff and defendant, a house, No. 38, was let to the plaintiff. After the agreement was executed and delivered to the plaintiff, it was altered (it was not proved by whom) by writing 35 instead the paper came into the payee's hands and was not known to him. (mm) If the alteration be made by a party, it is said so far to avoid the instrument that he cannot set it up, even if the alteration be in words not material. (n) But such a rule * would now be applied, if at all, with great relaxation. If the alteration does not vary the meaning of the instrument, or does * not effect its operation, there is of 38, on an erasure. The house occupied by the plaintiff under the agreement was in fact No. 35. Held, that the altered agreement might be given in evidence in an action for an excessive distress (in which the demise was admitted on the record), to show the terms of the holding. In the course of the argument, Alderson, B., interrupted the counsel to say: "It is difficult to understand why an alteration by a stranger should in any case avoid the deed, - why the tortious act of a third person should affect the rights of the two parties to it, unless the alteration goes the length of making it doubtful what the deed originally was, and what the parties meant.". And Lord Abinger added: "Suppose the stranger destroyed instead of altering it?" And again Lord Abinger, in delivering his opinion, said: "No case has gone the length of saying that when a deed is altered, and thereby vitiated, it ceases to be evidence; it may be so with reference to the stamp laws; there is no occasion, however, in the present case, to raise the general question. The old law was, no doubt, much more strict than it has been in modern times. Originally, there could be no such thing as founding upon a deed without making profert of it; and it was but an invention of the pleaders, growing out of a decision of Lord Mansfield's, to allege, as an excuse for not making profert, a loss of the deed by time and accident, founded on the presumption to be derived from long possession and enjoyment. I can hardly see how such a course is consistent with the old authorities which say that any alteration, even by a stranger, shall vitiate a deed. If it be so altered as to leave no evidence of what it originally was, that may prevent any party from using it; or if it be altered in a material part by a party taking a benefit under it, that may prevent him even from showing what it originally was. Here, however, it is sufficient to decide that this agreement was evidence to prove the terms of the holding; and there was no evidence of any other holding than that of the house No. 35."So Pigot's case has been overruled by the no good reason why it should make the instrument void. (o) And it seems, that an alteration * in negotiable paper, al though so material as to change the date and time of payment, may not avoid it, if it be only a correction of a certain error, and be. made before it is put into circulation. (p) The reason given by Lord Kenyon for holding that any alteration avoided an instrument, that "no man shall be permitted to take the chance of committing a fraud, without running any risk of losing by the event when it is detected," (q) is neither very clear nor very strong, nor does it apply to an immaterial alteration. We may therefore say, that, in this country generally, no immaterial alteration would avoid an instrument. And that alteration which only does what the law would do, - that is, only expresses what the law implies, - is not a material alteration, and therefore would not avoid an instrument. (r) Whether there be an alteration is a