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And such alteration not only makes a new stamp necessary, but vacates the bill or note, (independently of the stamp laws) except as between the parties consenting to such al

teration.

Altering the (4) date, or sum, or (4) time for payment; or inserting words, rendering a bill or note (5) negotiable,

ledge, and by some person unknown to the jury. That after such alteration it was endorsed for a valuable consideration by Wilkinson and Cooke to the plaintiffs. After two arguments, Lord Kenyon, Ashhurst, and Grose, Js. held, that the alteration, though by a stranger, vacated the bill; Buller J. differed; but on error, the whole court was so clear that it was vacated, that they would not hear a second argument, and judgment for the defendant was affirmed. See Henfree v. Bromley, 6 East. Rep. 309.

(4) Walton v. Hastings, 4 Campb. 223. 1 Stark. 215. A bill drawn by Brooks in favor of plaintiff was dated 5th July. An agent of plaintiffs presented it for acceptance, and defendant, the drawee, desired to have the date altered to the 10th, which was done accordingly, and then defendant accepted it. Lord Ellenborough held that as the bill was issued before this alteration was made, and was a perfect available instrument, the alteration made a new stamp necessary, and nonsuit.

Outhwaite v. Luntley, 4 Campb. 179. A bill drawn 5th March was endorsed to J. S., who left it for acceptance. The drawees altered the date to 15th March, and then accepted it. In an action on the bill by endorsee against endorser, it was argued that this alteration vacated the bill. Lord Ellenborough was of that opinion, because the bill was a perfect instrument when issued to the endorsee, the alteration might embarrass parties who would expect notice or payment according to the original date, and the alteration made it a new bill, and made a new stamp necessary.

See Wilson v. Justice, and Bowman v. Nicholl, ante, p. 58, and Cardwell v. Martin, infra, p. 62. As to acceptances varying from the tenor of the bill, see Chapter VI.

[See also Stephens v. Graham, 7. Serg. and Raw. 505. Bank of U. S. v. Russell, 3 Yeates, 391.]

Action on a note dated Sept. 10th 1819. The note was in fact made on that day; but was originally written 1809, and had since been altered to 1819. There was no evidence that the maker of the note knew of the alteration. The court held that the alteration in this case was material, and would render the instrument void, unless made by consent of the maker either express or implied, or under circumstances which would rebut the presumption of improper motives in making the alteration. Woodbury J. said, "And whether under all the testimony consent can here be implied, or the presumption be deemed rebutted, that the alteration was fraudulent, should be submitted to a jury." Bowers v. Jewell, 2 N. Hamp. R. 543.

But in Tennessee it has been held that the alteration of the date of the assignment of a note, did not avoid the right of action by the assignee against the maker of the note. Griffith v. Cox, Overton, 210.]

(5) See Kershaw v. Cox, ante, p. 58. n. (2) In Knill v. Williams, 10 East's Rep. 437, Le Blanc, J. said, that Kershaw and Cox could only be supported on the ground that the alteration was merely the correction of a mistake, for the alteration was a very material one.

which was not so originally; or inserting words in a bill or note originally expressed to be for value received generally, stating such value to have been received on a (6) particular account, is a material alteration, and makes a new stamp necessary.

[So procuring a person to sign his name as a witness to a note who did not see the maker sign, is a material alteration. (a)

So striking out a special endorsement over the name of an endorser, is a material alteration; but if the alteration be made without any fraudulent intention, the court will permit the special endorsement to be restored. (b)]

(6) Knill v. Williams, 10 East. Rep. 431. This was an action on a note, by which, nine months after date, the defendant promised to pay to the plaintiff, or order, £100 for value received, for the good-will of the lease and trade of Mr. F. Knill, deceased. It appeared at the trial before Le Blanc J., at Hereford, that the words in Italics were added, by consent of both parties, on the day after the note had been signed and delivered to the plaintiff, without any new stamp being impressed upon it; upon this the plaintiff was nonsuited, and a rule nisi to set aside the nonsuit, the whole court held that the alteration was material, and therefore discharged the rule.

[(a) Hall whose name was written as the subscribing witness on a note, did not see the defendant sign the note; but the plaintiff long after the date of the note, brought it to Hall, and asked him to sign his name as a subscribing witness, which he did. The court held that this was a material alteration of the note. Homer v. Wallis, 11 Mass. R. 309. In Massachusetts a note executed in presence of a subscribing witness is excepted from the operation of the statute of limitations.] [(b) J. and T. G. Prentiss drew a bill on De Grand payable to the order of T. G. Prentiss. The bill was endorsed, "Pay to the order of J. T. Mason Jr. Tho. G. Prentiss," and afterwards an endorsement by Mason to pay to the order of Nevins and Co. or to Nevins and Co. or order. The bill thus endorsed was accepted by De Grand. Nevins and Co. in order to avoid responsibility as endorsers, erased the endorsement over Mason's name, leaving Mason's endorsement in blank, and sold the bill, which was afterwards passed to Cabot. De Grand refused payment when the bill was presented by Cabot, on account of the erasure. bot then brought an action on the bill, and had the endorsement filled up so as to be payable to himself, but the court held that he could not maintain the action. Nevins and Co. repaid Cabot the amount of the bill, and then brought their action against De Grand upon the bill. The plaintiffs asked leave of the court to strike out the words endorsed in Cabot's action, and to restore the original words which made the bill payable to their order. Parker C. J. delivered the opinion of the court. It being clear that the words now moved to be restored, were stricken out with honest intentions; and that the acceptor has in no way been prejudiced thereby, or can be in any way injured by the restoration ; justice requires, and the law allows it to be done. The bill never hav

6.

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But inserting a mere memorandum to say where the bill or note is to be payable, if it give a right direction in that respect, is not. (7)

But altering an acceptance, so as to give an unwarranted place for payment, vacates the acceptance. (8)

And altering the place where a bill or note is payable, if for purpose of fraud, may be a capital forgery. (9)

ing been assigned by the plaintiffs, to take effect as was intended, the property remains in them, and they have a right to maintain the action." Nevins v. De Grand, 15 Mass. R. 436.]

(7) Trapp v. Spearman, 3 Esp. N. P. C. 57. In an action on a bill by an endorsee against the acceptor, the defence was, that the bill had been altered, by the insertion of the words, "When due, at the Cross Keys, Black Friars Road." But Lord Kenyon held that the alteration was immaterial, and the plaintiff had a verdict. Marson v. Petit, 1 Campb. N. P. C. 82 n. tor of a bill; after acceptance, the drawer, without the consent or knowledge of the defendant, wrote under his name, Prescott and Co. Lord Ellenborough held it immaterial.

Endorsee against accep

[Woodworth was sued as endorser of a note. After the note was made and endorsed, Kane, the maker, without the knowledge of Woodworth, wrote in the margin of the note, "Payable at the Bank of America, James Kane." The court held that this was not a material alteration, and did not invalidate the note. Bank of America v. Woodworth, 18 Johns. R. 315.

This decision was afterwards reversed in the Court of Errors, who considered the addition of the place of payment as a material alteration. Eighteen votes for reversing, ten, including the Chancellor, for affirming. S. C. 19 Johns. R. 391.]

(8) Tidmarsh v. Grover, 1 Maul. and Sel. 735. Defendant accepted a bill so as to make it payable at Bloxam and Co.'s: Bloxam and Co. failed, and the holder, without defendant's knowledge or consent, struck out their names, and substituted Esdaile and Co.'s. On point reserved whether this alteration vacated the acceptance, the whole court held it did, and plaintiff was nonsuited.

Cowie v. Halsall, 4 Barnew. and Ald. 197. In an action by endorsee of a bill against the acceptor, it appeared that the acceptance was general, and that the drawer, without the defendant's knowledge, added to it "Payable at Mr. B.'s, Chiswell Street;" and on the ground that this was a material alteration and vacated the acceptance, verdict for defendant: A motion was made for a new trial, but the court thought the verdict right, for this alteration would lead to a presentment at B.'s, not at defendant's and the bill might be treated as dishonored, and defendant be arrested thereon, without any presentment where he would expect it, and a rule was refused.

(9) Rex v. Treble, 2 Taunt. 328. Kellaway issued ten pound notes payable at Fordingbridge, or at Wilkinson and Co.'s London: these notes were re-issuable, several of them were paid in town, and stolen on their way back to Fordingbridge. Wilkinson and Co. failed, and the prisoner, who had got one of these notes, covered the names of Wilkinson and Co. with a small piece of paper containing the names of Rams

[The interlining of a word which the law would have supplied, does not vitiate a bill or note. (a)]

Sect. 2.-A bill or note is, primâ facie, to be considered as issued as soon as it is passed away by the drawer or maker, (10) or accepted by the drawee; (11)

Not before. (12)

If two perosns exchange acceptances, each bill is to be considered as issued, and any alteration afterwards will make new stamps necessary. (13)

bottom and Co. and re-issued the note: he was indicted for forgery and convicted, and on argument before the twelve judges this was held a forgery, for substituting a solvent house as one of the places of payment instead of an insolvent one varied the credit of the note, and though Kellaway by the real note answered for no payment in London, but at Wilkinson and Co.'s, this alteration made him answerable for it at Ramsbottom's.

[(a) A note was written payable on the "the 25th of Dec. in the of our Lord," omitting the word year, which word was interlined before the trial. Parsons C. J. delivered the opinion of the court. "The law would have supplied this word, and without the insertion of it the note would have supported a count on a promise to pay on the 25th of Dec. in the year of our Lord 1805. We are therefore of opinion that the actual insertion of the word year, which the law would clearly have supplied, is no such alteration as will annul the contract, if it was interlined by the promisee without consent; and if it were an immaterial alteration, the law will reasonably presume an assent of the promisers to the making of it." Hunt v. Adams, 6 Mass. R. 519. See also Bowers v. Jewell, ante, p. 59.

(10) See Walton v. Hastings, ante, p. 59. Outhwaite v. Luntly, ante, p. 59. Knill v. Williams, ante p. 60.

(11) See Tidmarsh v. Grover, and Cowie v. Halsall, ante, p. 61. (12) Kennerly v. Nash, 1 Stark. 452. Maules drew a bill upon Nash at three months, payable to his (Maule's) order, and sent it to Nash for acceptance: Nash sent it back to Maule, and desired him to let the bill be at four months instead of three: Maule assented, and the bill was altered accordingly. On question whether this made a new stamp necessary, Lord Ellenborough held it did not, and the plaintiff had a

verdict.

(13) Cardwell v. Martin, 9. East. Rep. 190. On the 3d of June, 1807, the defendant and Giles and Co. exchanged acceptances; on the 23d, before either of the bilis had been passed away, they altered the dates to the 23d; the bills were payable at a certain period after date. Lord Ellenborough thought a new stamp necessary, and nonsuited the plaintiff, with liberty to move to set aside the nonsuit: on motion accordingly, the whole court thought that the exchange of acceptances was a negotiation of each bill, and that the subsequent alteration rendered a new stamp necessary. Rule refused.

N. Each bill was payable to the drawer's order, and plaintiff was a bonâ fide endorsee.

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But a bill is not to be considered as issued, so as to make a new stamp necessary, until it is in the hands of some one who is entitled to make a claim thereon; (14)

Though it is accepted and endorsed; (14)

And an alteration thereon without the knowledge of acceptor or endorser, though it will entitle them to consider their acceptance or endorsement vacated if they do not assent thereto, will be binding upon them if they assent. (14)

Sect. 3.-If the date of a bill appear upon production to have been altered, and such alteration is in the hand-writing of the acceptor, the holder must prove that such alteration was made before the bill was parted with by the drawer. (15)

But proof that it was in the drawer's hands after it was accepted, will be primâ facie evidence for that purpose. (15)

(14) Downes v. Richardson, B. R. Easter Term, 1822. Upon an issue from chancery, on the question whether Thompson, as acceptor of a bill of exchange, was indebted thereon to Downes, an endorsee; it appeared in evidence that the bill was drawn by Raines to his own order upon Thompson, accepted by Thompson and endorsed by Raines and Lachlan; that its date was the 6th March; that Raines, Thompson and Lachlan were in the habit of putting their names for each other upon bills, and that Thompson and Lachlan put their names upon this bill to enable Raines to pass it: Raines put it into the hands of an agent, and he could not pass it till 10th April, when he paid it for value to Howell, who passed it for value to plaintiff. Before it was paid to Howell, the date was altered to the 16th of March: Thompson did not know of this alteration till after the bill was paid to Howell, but as soon as he knew of it he assented to it. It was urged for defendant, that this alteration made a new stamp necessary; but upon a case reserved, the court thought otherwise; for though the bill had names upon it, so as to give it the semblance of an available bill before it was paid to Howell, it was not in fact an available bill till that payment; no person could have made a claim upon it, and if not, it was not to be considered as issued till that period, and then the alteration was in time; and though Thompson would not have been bound by the bill in its altered state had he not assented to the alteration but might have insisted that the alteration cancelled his acceptance, his subsequent assent bound him, and revived and continued his acceptance.

(15) Johnson v. Duke of Marlborough, 2 Stark. 313. In action by endorsee against acceptor on bill payable to the drawer's order, the bill on production appeared to have been dated originally 29th Decem

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