or uncertain, in which case, it is regarded as a virtual destruction of it.1

The English doctrine that spoliation by a stranger avoided the instrument, has been characterized by Judge Story as repugnant to common sense and justice, and deserving no better name than a technical.2

§ 2. It was insisted at one time that the avoidance by alterations applied only to deeds, because of their solemn character, but where the date of a bill was altered by the payee, another indorsed by him to a holder for value without notice, it was held that he could not recover, and it was well said by Ashurst:3 "There is no magic in parchment or wax, and the principle to be extracted from the cases is that any alteration avoids the contract." And such are the constant and essential uses to which negotiable instruments are put, that it has been considered that more dangerous consequences would flow from a leniency toward alterations in bills and notes, than in deeds.*

§ 3. The alteration may consist in changing its (1) date, or the (2) time or (3) place of payment, or the (4) amount of principal or (5) interest to be paid, or the (6) medium or currency in which payment is to be made, or (7) the number or the relations of the parties, or in (8) the character and effect of the instrument as matter of obligation or evidence.

And the alteration may be effected by adding to the instrument some new provision, or by substituting one provision for another, or by obliterating or substracting from it some provision incorporated

in it.

It will be no answer to a plea of alteration that its operation is favorable to the parties effected by it, whether in lessening the amount to be paid, enlarging the time of payment, or otherwise. No man has a right to vary another's obligations at his discretion, whether for his good or ill. It ceases when varied to be that others act, and sufficient for him to say, "Non haec in foedera veni." It may be questioned whether or not prolongation of time, decrease of

1 Piersol vs. Grimes, 30 Indiana, 129, (1868); Crockett vs. Thomason, 5 Sneed, 342; Bigelow vs. Stephen, 35 Vt., 521; Terry vs. Hazlewood, 1 Duvall, 101; Lubbering s Kohlbrecher, 22 Missouri, 596; Medlin vs. Platte, & Co., 8 Id. 235; Ford is. Ford. 17 Pick., 418; Lee vs. Alexander, 9 B. Monroe, 25; Waring vs. Smyth, 2 Barb. Ch. R. 119; Davis vs. Carlisle, 5 Alabama, 707.

2 United States vs. Spalding, 2 Mason, 478.

3 Master vs. Miller, 4 Term. R., 320; 2 H. Bl., 140.

U. S. Bank vs. Russell, 3 Yeates, 391.

amount, or other apparently beneficial alteration, is really so. A debtor may make provision for payment on one day, and not be ready on another. A decrease of the amount destroys the identity, and confuses the traces of his obligation, and every reason of policy and principle forbid that the laws should tolerate tanıpering with the right and engagements of others.

Alteration of Date.

§ 4. In the first place, as to the DATE of the bill or note, it is obviously a most material part of it, indicating the time it became a subsisting contract, and the time when the contract is to be performed in many cases, and a thousand circumstances may arise adding additional consequence to the question when the instrument was issued.

Therefore, any change in the date imparts a new legal effect and operation to it, and is a material alteration which avoids it as against prior parties even in the hands of a bona fide holder without notice.'

It matters not that the time of payment, by relation to the date, may be prolonged, for suffice it to say it was not the time agreed on. Thus, in a case before the United States Supreme Court, where the maker of the note, drawn payable one year from date, changed "September 11," to "October 11," before delivery without consent of his surety, it was held that the note was avoided as to him.2

The alteration may be in the year,3 or the month, or the day of the month, or in all three."

Even where a note was altered in date to one day previous, and the effect as to its time of maturity remained unchanged, because of the circumstance that originally it would have fallen due as its

1 Master vs. Miller, 4 Term R., 320; 2 H. Bl., 140; Owings vs. Arnot, 33 Miss., 406 Britton vs. Dierker.

2 Wood vs. Steele, 6 Wallace, 80, (1867). Swayne, Judge, saying: "The grounds of the discharge in such cases are obvious. The agreement is no longer the one into which the defendant entered. Its identity is changed, another is substituted without his consent, and by a party who had no authority to consent for him. There is no longer the necessary concurrence of minds. If the instrument be under seal, he may well plead that it is not his deed, and if it be not under seal that he did not so promise. In either case, the issue must necessarily be found for him. To prevent such tampering, the law does not permit the plaintiff to fall back upon the contract as it was originally. In persuance of a stern but wise policy, it annuls the instrument, as to the party sought to be wronged." Russel vs. McNab, Scotch case, Thompson on Bills, 111.

'Jacob vs. Hart, 2 Starkee, 45.

5 Outhwaite vs. Luntly, 4 Camp., 179; Master vs. Miller, 4 T. R., 320, see supra. Walton vs. Hastings, 4 Camp., 223.

face imported, on Sunday, and therefore would have been legally due on Saturday, and by the change of date it fell due on Saturday, so that in point of fact, Saturday in either case was its day of payment. It was held, that it was avoided by the alteration. And the decision seems clearly right. The maker appeared to be bound as of a day prior to his binding himself. The identity of his contract was destroyed; and its legal effect changed. Questions of his own, and of others solvency, might arise making a day material. His memory and his memoranda might be challenged, or contradicted. And then although no actual injury might result, the inflexibility of the principle is essential to prevent its possibility.

It has been held, that the date of an indorsement on assignment is not a material part of it; and that an alteration of it wilt vitiate the holder's title to the whole amount; but the date may be very material when the question arises whether or not the indorsement was made before or after maturity, and this doctrine does not seem to us maintainable.

Alteration in time of Payment.

$ 5. In the second place as to the time of payment, specified or implied in the bill or note, a change of such time is obviously of the same nature as a change in the date-identical in principle and effect; and whether such change delays, accelerates, or preserves in legal effect the time specified or implied for payment, it constitutes a material alteration. Thus, if the bill be payable on demand, and is altered to read one day after date, it is materially varied;' so a substitution of "after date" for "after sight"; or the date of day, or month, or year, effects the same result." And where a party gave authority to another to draw a bill upon him at "ninety days from the 10th of April," on alteration to the "16th of April,” unauthorized by him, was held to discharge his liability as acceptor under the authority, although the time of pay men was extended six days.'

'Stephens vs. Graham, 7 Sergt. & R., 505.

"Griffith vs. Cox, 1 Tenn., 210.

Miller vs. Gilleland, 19 Penn. St., 119; Lesler vs. Rogers, 18 B. Monroe, 528; Outhwaite vs. Luntley, 4 Camp, 179; Bathe vs. Taylor, 15 East., 412.

*Murdoch vs. Lee, 4 Pat. Ap. Ca., 261 (Scotch case); Thompson on Bills, 111, the object being, as the annotator observes, to make the bill bear interest.

Long us. Moor, 3 Esp., 155; note Anderson vs. Langdale, 3 B. & Ad., 660. "Thompson on Bills (Wilson's ed.), 111; Lewis vs. Kramer, 3 Md., 265. Lewis vs. Kramer, 3 Md., 265.

Alteration in the Place of Payment.

§ 6. In the third place, as to PLACE of payment, when the bill or note has been drawn payable at a particular place, the obliteration of such place so as to make it payable generally constitutes a material alteration as against all parties not consenting; and likewise where no place is designated, it is a material alteration to insert one. And a fortiori it is a material alteration to obliterate one place and insert another. Thus, where the drawer of a bill after acceptance and without acceptor's consent, wrote after the acceptance "payable at Mr. B.'s, Chiswell street," it was held a material alteration, and the acceptor discharged,3 though in England it was formerly held otherwise.* So, striking out "in London," and thus making the bill payable generally. Even a bona fide holder can not recover upon an acceptance so altered, nor upon a note so altered against parties prior to the one making the alteration; changing the place of date would change the -hts of the parties, and hence bears alteration.8

$7. In England and in many of the United States, it is provided by statute that acceptances of bills drawn payable at a banking house, or other particular place, shall be deemed general acceptances, unless the drawer adds special words limiting the payment to a particular place. The effect of these statutory provisions is that it is not necessary to aver or prove presentment at such place in an action. against the acceptor, who, however, may show any loss resulting from non-presentment there. But an indorser is absolutely discharged by failure to make due presentment there.9

These provisions do not affect the rules applying to alterations. The acceptor has a right to deposit the amount at the particular place designated; and that done his obligation is discharged. Therefore, the insertion of a particular place would materially vary his rights. Besides, as said by Abbott, C. J.: "Suppose a bill so altered

1McCurbin vs. Turnbull (Scotch case), Thompson on Bills, 112. Chitty on Bills (13th Am. ed.), top p. 209–211, 183, 184.

Tidmarsh vs. Grover, 1 Maule & S., 735.

Cowie vs. Halsall, 4 B. & Ald., 197 (E. C. L. R.); 3 Stark, 36; see also, Tidmarsh vs Grover, 1 Maule & S., 735; Rex vs. Treble, 2 Taunt., 328.

Trapp vs. Spearman, 3 Esp., 57, in which case the insertion on a bill "when due at the Crosskeys, Blackfriar's Road," was held immaterial. See also, Marson vs. Petit, 1 Camp., 82.

Burchfield vs. Moore, 25 Law & Eq., 123; 5 El. & B., 683.

"Nazro vs. Fuller, 24 Wend., 374.

*Mahaiwe Bank vs. Douglass, 31 Conn., 170.

See 1 and 2 Ga., 4th ch., 78.

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

§ 8. Whether a memorandum of the place of payment is to be considered as a part of the contract, or merely as a direction where payment will be made has been questioned; but it seems now settled that it enters into the contract and is a material alteration.

In Bank of America vs. Woodworth, 18 Johns., 315, it appeared that an accommodation note had been made, dated and indorsed in blank at Albany, where the parties resided, and that the maker without the indorser's knowledge or consent wrote in the margin, "payable at the Bank of America," i. e., in New York City. The Supreme Court held the alteration immaterial, on the ground that an indorser in blank leaves the place of payment, when none is designated, to the subsequent discretion of the maker, except only when he appoints one in bad faith, or at an unreasonable distance.

But this decision was overruled on appeal, (Woodworth vs. Bank of America, 19 Johns., 391), the Court ruling that a written instrument might be varied by a memorandum in the margin, and that the terms of such memorandum had the same effect as if contained in the body of the instrument; and that this was a material alteration, because "it subjected the indorser to new and unexpected liabilities. By the note, as originally drawn, he bound himself to pay in the event of non-payment on a demand being made of the maker personally, or at his residence, by the addition of the memorandum, he is made liable upon a demand of payment at New York, which, but for that memorandum would have been perfectly nugatory. It rendered valid a notice of non payment, which was received one or two days later than that which he contemplated at the time of his indorsement, a circumstances by which he does not indeed appear to have been injured, but which certainly increased his risks, and lessened his prospects of indemnity.

'McIntosh vs. Haydon, Ry. & M., 362; Desbrowe vs. Weatherby, 1 M. & Rob., 438; Cowie vs. Halsall, 4 B. & Ald., 497; Taylor vs. Moseley, 1 M. & Rob., 439, n.; Gardner vs. Walsh, 5 El. & B., 83; Burchfield vs. Moore, 5 El. & B., 683; Bank of America vs. Woodworth, 19 Johns,, 391; Oakey vs. Wilcox, 3 How. Miss., 330; White vs. Haas, 32 Ala., 430.

2 Starr vs. Metcalf, 4 Camp., 217; Trecothick vs. Edwin, 1 Starkie's R., 469; 8. Smith, 14 Johns., 368; Jones vs. Failes, 4 Mass., 244.

Platt