Sec 696

Whether an alteration is so material as to avoid a contract under the rule above given, depends upon the bearing of the alteration on the interests of the party who makes or permits the alteration.3 It has been held that where a composition deed, under the English bankruptcy act, purported to embrace all the creditors, and was adequately executed by a sufficient majority under the statute, the subsequent addition of the names of other creditors in the schedule, this in no wise affecting the document, was not a material alteration;4 though it is otherwise when the schedule itself is added after execution and registration.5 Adding a seal, so as to give, if valid, additional force to a contract, avoids it;6 and so does the introduction of a qualification enhancing the value of the property passing by the contract.1 As immaterial have been held the alteration of a name in a recital, the object being merely greater accuracy, without in any way enlarging liability;2 the insertion of "or bearer" in place of "or order," in a case where it did not at all appear that this varied the rights of the parties;3 the adding the words " on demand" to a promissory note;4 the addition of a harmless designation (e.g. "sheriff of the county") to a name;5 the correction of an obvious error;6 the insertion of a word which was so obviously dropped out in engrossing that the court in construing the passage would have regarded the word as understood;7 and the interlining innocently of explanatory words, in no wise affecting the sense.8 The rule, it is said, is applicable even to cases where the alteration was made bona fide, but without the consent of the opposite party; and this is rightfully the case when one party makes a material alteration in his own favor in the body of a document after it has been duly executed and delivered.9 But such is not the case with alterations which do not go to the body of the document. Thus, where the name of a witness Alterations are material when tending to benefit party making them.

Fort, 2 Fairf. 115; Martendale V. Follet, 1 N. H. 95; Bowers V. Jewell, 2 N. H. 543; Langdon V. Paul, 20 Vt. 217; Smith V. Crooker, 5 Mass. 538; Doane V, Eldridge, 16 Gray, 254; Stoddardt V. Penniman, 108 Mass. 366; Draper V. Wood, 112 Mass. 315; Booth V. Powers, 56 N. Y. 22; Churchman V. Smith, 6 Whart. 146; Hill V. Cooley, 46 Penn. St. 259; Farmers' Ins. Co. V. Bair, 82 Penn. St. 33; Carr V. Welch, 46 Ill. 88; Benedict V. Miner, 58 Ill. 19; Dietz V. Harder, 72 Ind. 208; Comstock V. Smith, 26 Mich. 306; Vaughan V. Fowler, 14 S. C. 355; Doster V. Brown, 25 Ga. 24; Washington Bk. V. Ecky, 51 Mo. 272.

1 Wh. on EV. sec 629.

2 Ibid.; Martendale V. Follet, 1 N. H. 95; Angle V. Ins. Co., 92 U. S. 330; Jewett V. Hodgden, 3 Greenl. 103;.

Thornton V. Appleton, 29 Me. 298 Goodman V. Eastman, 4 N. H. 455 Cape Ann Nat. Bk. V. Burns, 129 Mass 596; McGrath V. Clark, 56 N. Y. 34 Babb V. Clemson, 10 S. & R. 419 Marshall V. Gougler, 10 S. & R. 164 Kountz V. Kennedy, 63 Penn. St. 187 Holmes V. Trumper, 22 Mich. 427 Brooks V. Allen, 62 Ind. 401; Newell V. Mayberry, 3 Leigh, 250; Mills V. Starr, 2 Bailey, 359; Toomer V. Rutland, 57 Ala. 379.

3 See Wh. on EV. sec 622; Leake, 807; Hutchins V. Scott, 2 M. & W. 809; Vance V. Lowther, L. R. 1 Ex. D. 176; Smith V. Crooker, 5 Mass. 539; Neff V. Horner, 63 Penn. St. 327.

4 Wood V. Slack, L. R. 3 Q. B. 379.

5 Sallin V. Price, L. R. 2 Ex. 189.

6 Davidson V. Cooper, 13 M. & W. 343.

1 Leake, 2d ed. 807; Powell V. Divett, 15 East, 29; Mollatt V. Wackerboth, 5 C. B. 181.

2 Trew V. Burton, 1 C. & M. 533.

3 Flint V. Craig, 59 Barb. 319; and other cases infra, sec 699.

4 Aldous V. Cornwell, L.R. 3 Q.B. 573.

5 Pigot's case, 11 Co. 26 6.

6 Hutchins V. Scott, 2 M. & W. 809.

7 Wangh V. Russell, 5 Taunt. 707; Hale V. Russ, 1 Greenl. 334; Knapp V. Maltby, 13 Wend. 587.

8 Aldous V. Cornwell, L. R. 3 Q. B. 573; Falmouth V. Roberts, 9 M. & W. 469; Hutchins V. Scott, 2 M. & W. 809; Hunt V. Adams, 6 Mass. 519; Brown V. Pinkham, 18 Pick. 172. That when the alterations are immaterial they do not avoid, see Bluck V. Gompertz, 7 Exch. R. 862; Keane V. Smallbone, 17 C. B. 179; Waugh V.

Russell, 5 Taunt. 707; Aldous V. Corn-well, L. R. 3 Q. B. 573; Major V. Hansen, 2 Biss. 195; Littlefield V. Coombs, 71 Me. 110; Pequawket Bridge V. Mathes, 8 N. H. 139; Smith V. Crooker, 5 Mass. 538; Brown V. Pinkham, 18 Pick. 172; Kountz V. Kennedy, 63 Penn. St. 187; Kimmel's App., 91 Penn. St. 471; Robertson V. Hay, 91 Penn. St. 242; Herrick V. Baldwin, 17 Minn. 209; Allen V. Sales, 56 Mo. 28; and so when the alteration, though material, does not affect the liability of the party sued to the party suing. Hutchins V. Scott, 2 M. & W. 809; Falmouth V. Roberts, 9 M. & W. 471; Davidson V. Cooper, 13 M. & W. 343; Ward V. Lumley, 5 H. & N. 87; U. S. V. Spalding, 2 Mason, 478.

9 See Bank of Hindustan V. Smith, 36 L. J. C. P. 241.

was added to a bond, Dewey, J., while saying that the alteration was undoubtedly material, on the ground that "by adding to the bond the name of an attesting witness, the obligee became entitled to show the due execution of the same by proving the handwriting of the supposed attesting witness, if the witness was out of the jurisdiction of the court;" added: "But we think that it would be too severe a rule, and one which might operate with great hardship upon an innocent party, to hold inflexibly that such alteration would in all cases discharge the obligor from the performance of his contract or obligation. If an alteration like that which was made in the present case can be shown to have been made honestly, if it can be reasonably accounted for as done under some misapprehension or mistake, or with the supposed assent of the obligor, it should not operate to avoid the obligation. But, on the other hand, if fraudulently done, and with a view to gain any improper advantage, it is right and proper that the fraudulent party should lose wholly the right to enforce his original contract in a court of law."1 The test is, intent to defraud; and of this, materiality is an important factor. If immaterial, an intent to defraud will not be inferred. And even if material, the document will not be necessarily vitiated where there was no fraudulent intent.2 - An alteration in the number of a note issued by the bank of England, it has been held, does not avoid the note so as to enable the bank to refuse payment to a bona fide purchaser without notice.3

1 Adams V. Frye, 3 Met. 103.

2 Ibid.; Thornton V. Appleton, 29 Me. 298; Willard V. Clark, 7 Met. 435; Marshall V. Gougler, 10 S. & R. 164.

3 Suffell V. Bank, L. R. 7 Q. B. D. 270. "The leading authority," said Lord Coleridge, C. J., "on the subject is the well-known case of Master V. Miller, 4 T. Rep. 320; in error, 2 Hen. Bl. 141. There an unauthorized alteration in a bill of exchange, whereby the day of payment was accelerated, was held to avoid the instrument, even as against the innocent holder for value. The nature of the alteration, and therefore the original contract, being capable of proof, made no difference in the opinion of the judges. Buller, J., dissented, and I think was overruled rather than answered by the majority who decided the case, but so is the law; and there is no doubt that the breadth of the language both of Lord Kenyon and Eyre, C. J., taken literally, would cover this case. But it has always been held that the alteration which vitiates the instrument must be a material alteration, i.e., must be one which alters or attempts to alter the character of the instrument itself, and.