Irish courts. Swiney v. Barry, 1 Jones, 100, where it was held, that an alteration in a material part of a deed by a stranger does not avoid the deed; and the court will look at the deed as it was before it was altered; and, therefore, if upon oyer, the deed is set out as it was before it was altered, it is no variance. And in this country it is clearly settled that a material alteration by a stranger will not render an instrument void, if it can be shown by evidence what the instrument was before it was altered. Nichols v. Johnson, 10 Conn. 192; Rees v. Overbaugh, 6 Cowen, 746; Lewis v. Payn, 8 id. 71; Medlin v. Platte County, 8 Mo. 236; Davis v. Carlisle, 6 Ala. 707; Waring v. Smith, 2 Barb. Ch. 119; Smith v. McGowan, 3 Barb. 404; Jackson v. Malin, 16 Johns. 293; City of Boston v. Benson, 12 Cush. 61. See Worrall v. Gheen, 39 Penn. St. 388, for an application of this doctrine to the liability of an accommodation indorser, to the amount for which he had indorsed, notwithstanding the maker had subsequently altered the note so as to increase the amount.

(mm) Wood v. Steele, 6 Wallace, 80.

(n) Pigot's case, 11 Rep. 27; Lewis v. Payn, 8 Cowen, 71; Den d. Wright v. Wright, 2 Halst. 176. And see Mollett v. Wackerbarth, 6 C. B. 181; Boalt v. Brown, 13 Ohio St. 364. But in Pequawket Bridge v. Mathes, 8 N. H. 139, it was held, that an immaterial alteration of a bond, though made by the obligee, would not destroy the bond. And see, to the same effect, Bowers v. Jewell, 2 N. H. 543; Nichols v. Johnson, 10 Conn. 192. Where a mortgagor altered a mortgage after it was signed by his co-mortgagor, without the knowledge or consent of such co-mortgagor, by inserting the description of additional property, it was held, that the mortgage was valid as to both mortgagors as a conveyance of the property therein described before the alteration was made; and that the party who made the alteration was bound by it as a conveyance of all the property embraced both in the original mortgage and in the alteration. Van Horn and Clark, Adm'rs, v. Bell, 11 Iowa, 466.

(o) Such seems to have been the opinion of the court in Falmouth v. Roberts, 9 M. & W. 469. And it was expressly so held in Smith v. Crooker, 5 Mass. 640, where the name of the obligor of a bond was inserted in the body of the instrument by the obligee, after it was signed. See also Hunt v. Adams, 6 Mass. 510, as to supplying words omitted by mistake, or which the law itself would supply. In Granite Railway Co. v. Bacon, 15 Pick. 230, a promissory note in the following words was signed by the defendant: "For value received I promise to pay to Quincy Railway Company " (who were the plaintiffs), "or order, one thousand and thirty dollars, in six months." The note was then indorsed by E. P., and delivered to the treasurer of the plaintiffs, who, without the knowledge or consent of the defendant, inserted the words,"the order of E. P." above the words, "Quincy Railway Company, or order," but without erasing the latter words. It was held, that, in the absence of fraud, this was not an alteration affecting the validity of the note. So, in Langdon v. Paul. 20 Vt. 217, where the plaintiff offered in evidence a sealed instrument, in which the defendant acknowledged that he had "signed" certain promissory notes, and the words "and executed" were interlined after the word "signed," it was held, that these words were immaterial, and that no explanation of the time when the interlineation was made was necessary. See also Huntington v. Finch, 3 Ohio St. 445, and cases cited in preceding note.

(p) Fitch v. Jones, 5 Ellis & B. 23S.

(q) Master v. Miller, 4 T. R. 329.

(r) The sensible rule on this subject seems to have been arrived at in Adams v. Frye, 3 Met 103, where it was held, that if, after the execution and delivery of an unattested bond, the obligee, without the knowledge and consent of the obligor, fraudulently, and with a view to some improper advantage, procures a person who was not present at the execution of the bond, to sign his name thereto as an attesting witness, the bond is thereby avoided and the obligor discharged. The act of an obligee in procuring a person who was not present at the execution of the bond, nor duly authorized to attest its execution, to sign his name thereto, as an attesting witness, is prima facie sufficient to authorize the jury to infer a fraudulent intent. But it is competent for the obligee to rebut such inference; and if the act be shown to have been done without any fraudulent purpose, the bond will not be avoided by such alteration. And Dewey, J., said: "There was, by the alteration which was made in the case at bar, a material change introduced as to the nature and kind of evidence which might be relied upon to prove the facts necessary to substantiate the plaintiff's case in a court of law. 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. It is quite obvious, therefore, that a fraudulent party might, by means of such an alteration of a contract, furnish the legal proof of the due execution therequestion of fact for the jury; but whether the alteration is material, is not a question * of fact for a jury, but of law for the courts; (s) and the burden of proof of the fact of alteration rests on the party alleging it. (t) So whether, and when, and by whom, and with what intent an alteration was made, are questions of fact for the jury. (tt)

If the alteration be not fraudulent, although it cancels the instrument, it will not cancel the debt of which the instrument was evidence. (tu)

If the alteration be by tearing off a seal, the instrument cannot, in strict law, be pleaded with a profert, but the facts should be specially set forth as the reason why there is no profert. (u) If a seal be added to an instrument, this has been held to be a material alteration; (v) but we think it would generally be regarded as immaterial and inoperative. It has indeed been held, that when a seal adds no actual strength to the contract, and does not interfere with the intention of the parties, which is adequately expressed and effected by the instrument regarded as a simple contract, then the seal may be treated as mere surplusage. (w) And if an agent of, by honest witnesses swearing truly as to the genuineness of the handwriting of the supposed attesting witness; and yet the attestation might be wholly unauthorized and fraudulent. It seems to us that we ought not to sanction a principle which would permit the holder of an obligation thus to tamper with it with entire impunity. But such would be the necessary consequence of an adjudication, that the subsequent addition of the name of an attesting witness, without the privity or consent of the obligee, is not a material alteration of the instrument, and would under no circumstances affect its validity. 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." See also Thornton v. Appleton, 29 Me. 296; Bassett v. Baasett, 55 Me. 125; Commonwealth v. Emigrant, etc. Bank, 48 Mass. 12; Pope v. Chaffee, 14 Rich. Eq. 69; Carr v. Welch, 46 Ill. 88.