Sec. 78. Infancy

A minor can plead his non-age against a holder in due course.

The defense of minority is good against all the world. A minor's express contract is voidable by him. He is liable on his implied contract for necessaries, but not upon any express contract even for them, unless he chooses not to make his minority a defense. And he may set up his defense against a holder in due course.

Sec. 79. Forgery

A title cannot be acquired against one through forgery of his name; assuming there are no peculiar circumstances estopping him to set up the forgery.

That one's name has been forged to a document gives no rights against him; assuming that there are no particular circumstances in the case which would make it inequitable for him to set up the forgery, as where he in some measure really encouraged the act, or thereafter ratified it or did not deny his signature when it was possible for him so to do. See further, the next section.

Sec. 80. Material Alteration

That the instrument has been materially altered Is a defense that can be set up against a holder in due course; unless the alteration was made possible by the careless manner in which the instrument was drawn. But a holder of an altered instrument may recover on it according to its original tenor.

If a material alteration is made with guilty intent, it amounts to a forgery, and the same rules apply as in the section above. If not made with guilty intent yet still purposely it is nevertheless an alteration and the maker cannot be made liable upon the instrument as changed.

The alteration must be material in order to give the promissor any defense. The statute declares that "Any alteration which changes: 1. The date;

2. The sum payable, either for principal, or interest;

3. The time or place of payment; 4. The number of the relations of the parties: 5. The medium or currency in which payment is to be made; or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration."38

If by reason of the careless drawing of the instrument the alteration was made easily possible, the party who is guilty of such negligence is estopped to set up the alteration against a holder in due course.

Suit was brought upon a promissory note purporting to be made by defendants and reading as follows:39 "$1300. Kewanee, Illinois, Oct. 4, 1897.

One year after date I promise to pay to the order of ourselves thirteen hundred dollars at Kewanee, 111. Value received, with interest at the rate of seven per cent per annum.

(sd.) L. Silverman,

H. Clay Merritt."

Indorsed on back:

"L. Silverman. H. Clay Merritt." Boyden & Son, paid $1300 for the note, acquired it before maturity and had no notice of any altera18. Uniform Negotiable Instruments Act, SEC. 125. 39. Merritt v. Boyden, 191 Illinois Reports, 136.

tion. The defense was based on two theories: (1) That the note as originally delivered contained the figures "$100" in the margin, and the words "one hundred dollars" in the body of the note, and that the figures "$100" were altered to read "$1300," and the word "one" before "hundred" was erased, and the word "thirteen" inserted in its stead; or

(2) That the word "one" was not in the body of the note, but that there was a blank space in which the word "thirteen" had been inserted.

The court in the course of its opinion said: "First, If the note was altered by (the first method) then the alteration amounted to a forgery and appellant is not liable on the note, even though appellees were bona fide purchasers thereof for value without notice or knowledge of the change. If the amount named in the note is raised by erasing what is written, such alteration is a material one, and the note is thereby vitiated so as to become void. * * * Where a note is complete at the time when it is signed by the maker, its subsequent alteration by raising the amount thereof through obliteration of the same by the use of any chemical process, or other ingenious device, without the knowledge or consent of the maker, will discharge him from liability upon the note. * * * (The court found this theory unsupported by the evidence.)

"The second theory of the defense * * * was that, when he signed and endorsed the note, there was a blank space before the word "hundred" and that this blank space was subsequently filled by inserting the word "thirteen" therein without the knowledge or consent of the appellant. * * * When the maker of the note has, by careless execution of the instrument left room for an alteration to be made by insertion without defacing the instrument or exciting the suspicion of a careful man, and the instrument by reason of the opportunity thus afforded is subsequently filled up with a larger amount than that which it bore at the time it was signed, the maker will be liable upon it as altered to any bona fide holder without notice." (This left the contention that the marginal figures had been altered to be disposed of. For even though the makers of the note were negligent as to the body of the note, the marginal figures must have been erased and changed. As to that the Court said:) "The marginal figures have been held to be not part of the instrument, but to be intended merely as a convenient index, and as an aid to remove ambiguity or doubt in the instrument itself. The alteration or erasure of the marginal figures is an immaterial alteration and will not affect the rights of the holder of the instrument."

For these reasons the Court gave a decision in favor of the holder in due course.

The present law provides that where an instrument is altered and is come into the hands of a holder in due course, though the alteration is a defense against him, he may yet recover on the instrument according to its original tenor.

Sec. 81. Fraud Going To The Execution

The fraud whereby one Is induced to execute, accept or indorse a negotiable instrument under the impression that he is performing some other act with an entirely different legal effect, gives rise to a defense good against everyone, unless one is because of his negligence or otherwise estopped to set it up.

If one is fraudulently prevailed upon to attach his signature to a negotiable instrument, with the understanding that he is really signing some altogether different paper, he can set up his defense against even a holder in due course provided he was not negligent. It being the duty of every one to read what he signs, a failure to read would ordinarily constitute such negligence that the party would be estopped to set up his defense against the holder in due course. But there are rare cases in which this would not be true. So if by any trick or device another paper than the one read is substituted, a defense could be made as against even a holder in due course.

The fraud here discussed differs from that discussed above in section 72 in that the fraud there goes to the consideration or inducement and not to execution. The party in the other case signs just what he intended to sign. In such case a true bona fide holder has a good title. Here he has none if there was no negligence.

Sec. 82. Illegality Which By 8tatute Makes Instrument Void

By statute In many Jurisdictions it is declared that if an instrument is founded upon certain illegal considerations, as for Instance, a gambling consideration, it shall be utterly void. In such cases the Instrument is of no effect even In the hands of an innocent purchaser for value.

If the statute declares the instrument void, it becomes so to all purposes and can give no rights to any one. The chief case in which an instrument is declared void as to everyone is the case of an instrument executed as a part of a gambling transaction.