2 Pigot's Case, 11 Co. 26 6; Markham v. Gonaston, Cro. Eliz. 626; Master v. Miller, 4 T. R. 320; 5 T. R. 367; Miller v. Stewart, 4 Wash. C. C. 26; Mollett v. Wackerbarth, 5 C. B. 181; Martendale v. Follet, 1 N. H. 95.
3 Pigot's Case, 11 Coke, 26 b, and cases cited in the previous note.
4 In Hutchins v. Scott, 2 M. & W. 809, a lease was made to the plaintiff of a house, No. 38, and the number was altered to 35. Lord Abinger said, "No case has gone the length of saying that when a deed is altered, and thereby vitiated, it ceases to be evidence; it may be so with reference to the stamp laws: there is no occasion, however, in the present case to raise the general question. The old law was, no doubt, much more strict than it has been in modern times. Originally there could be no such thing as founding upon a deed without making profert of it; and it was but an invention of the pleaders, growing out of a decision of Lord Mansfield's, to allege, as an excuse for not making profert, a loss of the deed by time and accident, founded on the presumption to be derived from long possession and enjoyment. I can hardly see how such a course is consistent and the doctrine which obtains here is that if the alteration be not material, and especially if it be the correction of a patent error,1 or an expression of what would be implied by law,2 or the addition of words and matters purely a mistake, and by which the manifest meaning and effect of the instrument is not altered,3 it would not be a sufficient alteration to with the old authorities which say that any alteration even by a stranger shall vitiate a deed. If it be so altered as to leave no evidence of what it originally was, that may prevent any party from using it; or, if it be altered in a material part by a party taking a benefit under it, that may prevent him even from showing what it originally was. Here, however, it is sufficient to decide that this agreement was evidence to prove the terms of the holding; and there was no evidence of any other holding than that of the house No. 35." See, also, Swiney v. Barry, 1 Jones, Ex. 109; Falmouth 9. Roberts, 9 M. & W. 469. In Master v. Miller, 4 T. R. 334, 335, the necessity of some fraudulent intent on the part of the promisor was strongly insisted on by Buller, J. See, also, Henfree v. Bromley, 6 East, 309; Norton v. Powell, 4 Man. & G. 42, and note (a) of the reporters; Wilkinson v. Johnson, 3 B. & C. 428; Raper v. Birkbeck, 15 East, 17. In Powell v. Divett, 15 East, 29, it was held that an alteration of bought and sold notes by a broker at the instance of the vendor, and without the consent of the vendee, avoided the contract; but the ground on which the court proceeded was that the alteration was fraudulent, and could not be received in evidence. But see Davidson v. Cooper, 11 M. & W. 778; s. c. 13 M. & W. 313; and Mollett v. Wackerbath, 5 C B. 181.
5 Pequawket Bridge p. Mathes, 8 N. H. 139; Bowers p. Jewell, 2 N. H. 543; Smith v. Crooker, 5 Mass. 538; Hunt v. Adams, 6 Mass. 519; Granite Railway Co. v. Bacon, 15 Pick. 239; Langdon v. Paul, 20 Vt. 217; Adams v. Frye, 3 Met. 103; Thornton v. Appleton, 29 Me. 298; Smith v. Dunham, 8 Pick. 246; Hatch v. Hatch, 9 Mass. 311; Marshall v. Goug-ler, 10 Serg. & R. 164; Kountz v. Kennedy, 63 Penn. St. 187 (1869); Rhoades v. Castner, 12 Allen, 132 (1866).
1 Hutchins v. Scott, 2 M. & W. 809; Smith v. Crooker, 5 Mass. 539.
2 1 Greenleaf on Evid. § 567; Hunt v. Adams, 6 Mass. 519; Waugh v. Bussell, 5 Taunt. 707; Paget v. Paget, 2 Ch. Cas. 101; Hale v. Russ, 1 Greenl. 334; Knapp v. Maltby, 13 Wend. 587; Brown v. Pinkham, 18 Pick. 172. An alteration of a note by the holder by striking out the words "to the order of" and inserting "or bearer," it is said, does not necessarily avoid the note in the absence of any evidence that the rights of the makers are thereby prejudiced. Flint v. Craig, 59 Barb. 319 (1871).
3 Hunt v. Adams, 6 Mass. 519. In Adams v. Frye, 3 Met. 103, the name of a witness to a bond was added. 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 thereof by honest witnesses swearing avoid a contract. Thus the addition of the words "on demand" to a note expressing no time of payment, being an immaterial addition, does not avoid the note, although made by the payee.1 So, also, the erasure of an erroneous word or words, and the substitution of others, the former still remaining legible, would not render the contract void.2 But where the alteration is material or for the benefit of the party making it, and especially when it is fraudulently made, it would altogether3 annul the contract.4
§ 1401. Where an alteration is made by a stranger, without the knowledge of either party at the time, it is treated as a mere erasure by accident,5 and does not vitiate the 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."