1 Aldous v. Corn well, Law R. 3 Q. B. 573 (1868), modifying anything contrary in Pigot's Case, 11 Rep. 27 a, or in Master v. Miller, 4 T. R. 320.
2 Hutchins v. Scott, 2 M. & W. 809, and cases cited above.
3 Neff v. Horner, 63 Penn. St. 327 (1869). But a material alteration in some parts of a deed, as to the extent of land included, though fraudulently made by the grantee after its final delivery to him, will not operate to divest him of the title of that part of the estate described, which completely vested by the original delivery. Stewart v. Aston, 8 Irish Com. Law, 35 (1858), in the Exchequer Chamber.
4 Master v. Miller, 4 T. R. 320; Adams v. Frye, 3 Met. 103; Marshall v. Gougler, 10 Serg. & R. 164, and cases cited above.
5 Pigot's Case, 11 Co. 26, b; Lewis v. Payn, 8 Cow. 71; Henfree v.
contract, if the original writing remain legible; and if the contract be so injured that it cannot be read, or can only be read in parts, secondary evidence may be resorted to, to prove its terms.1 So, also, where a seal is torn off by a stranger, or by accident, or by the obligor, the mutilated deed or bond may be declared upon as the deed of the party, and the special facts set forth in the profert.2
Bromley, 6 East, 309. See Davidson v. Cooper, 11 M. & W. 778; Mol-lett d. Wackerbarth, 5 Com. B. 181; Swiney v. Barry, 1 Jones, Ex. 109; Smith v. McGowan, 3 Barb. 404; Waring v. Smyth, 2 Barb. Ch. 119; Nichols v. Johnson, 10 Conn. 192; Rees v. Overbaugh, 6 Cowen, 746; Jackson v. Malin, 15 Johns. 293; Davis v. Carlisle, 6 Ala. 707; Medlin v. Platte County, 8 Mo. 235.
1 1 Greenleaf on Evid. § 566, cases cited above. See, also, Henfree v. Bromley, 6 East, 309; Cutts v. U. S., 1 Gallis. 69; Rees v. Overbaugh, 6 Cowen, 746.
2 In U. S. v. Spalding, 2 Mason, 482, Mr. Justice Story says: "The old cases proceeded upon a very narrow ground. It seems to have been held that a material alteration of a deed by a stranger, without the privity of either obligor or obligee, avoided the deed; and by parity of reasoning the destruction or tearing off the seal either by a stranger or by accident. [Bigot's Case, 11 Co. 27; s. p. & c. 1 Roll. 39; 1 Roll. Abr. Fait, X. 1, 2, 3; Perk. § 135, 136; U. S. v. Cutts, 1 Gallis. 69, and cases cited; Com. Dig. Fait (F. 2); Mathewson's Case, 5 Co. 23; 1 Dyer, 59 a, and note 12; Shepp. Touch. 69.] A doctrine so repugnant to common sense and justice, which inflicts on an innocent party all the losses occasioned by mistake, by accident, by the wrongful acts of third persons, or by the providence of Heaven, ought to have the unequivocal support of unbroken authority before a court of law is bound to surrender its judgment to what deserves no better name than a technical quibble. It appears to me to be shaken to its very foundation in modern times; and every case which upholds a remedy at law where the deed is lost by time and accident is decisive against it. The case of Read v. Brookman [3 T. R. 151, and see Bolton v. Bishop of Carlisle, 2 H. Bl. 259] is directly in point, and is reasoned out by Lord Kenyon with vast force and ability upon principles of eternal justice. Mr. Justice Buller, in Master v. Miller [4 T. R. 320, 339; and see Waugh v. Bussell, 5 Taunt. 707; Totty v. Nesbitt, and Matison v. Atkinson, cited 3 T. R. 153, note (c); Henfree v. Bromley, 6 East, 309], said, and he is a great authority, 'It is not universally true that a deed is destroyed by an alteration, or by the tearing off the seal. In Palmer, 403, a deed which had erasures in it, and from which the seal was torn, was held good, it appearing that the seal was torn off by a little boy. So, in any case where the seal is torn off by accident after plea pleaded, as appears by the cases quoted by the plainthe party offering it, as if it be a note or bond altered to a less sum, the law does not presume that it was improperly made, so as to throw on him the burden of accounting for it.1 But where there are any suspicious circumstances, it is for a jury to determine whether the alteration were made after or before the execution of the instrument, or with or without the assent of the other party.2 But an exception to this rule is admitted in the case of negotiable securities, in regard to which it is held that every alteration must be explained by the party claiming under it.3 Whether the alteration be a material one is a question of law for the court, and not of fact for the jury.4 The late English rule is that any alteration of a promissory note or bill, which would make the instrument operate differently from the original, whether it be to the prejudice or benefit of a former party, who is not privy to the alteration, releases him from all liability. Thus, where A. signed a note as sole surety for B., and the payee afterwards procured another surety without A.'s knowledge, the latter was held to be released.5 So an alteration in the date of a note by which its payment is delayed avoids it as to a surety who had previously signed it, although such alteration be made by the principal signer before it leaves his hands.1
§ 1402. Where an instrument appears to be altered, the alteration will be presumed to be contemporaneous with its execution.1 But if the alteration be against the interest of tiff's counsel. And in these days, I think, even if the seal were torn off before the action brought, there would be no difficulty in framing a declaration which would obviate every doubt on that point by stating the truth of the case. The difficulty which arose in the old cases depended very much on the technical forms of pleading applicable to deeds alone. The plaintiff made a profert of the deed under seal, which he still must do, unless he can allege a sufficient ground for excusing it. When that is done, the deed or the profert must agree with that stated in the declaration or the plaintiff fails. But the profert of a deed without a seal will not support an allegation of a deed with a seal.' There is so much sound sense and legal propriety in this doctrine that one is persuasively urged to adopt it, and it stands supported by the authority of other cases. But however this may be, it is clear that a divulsion of the seal by the obligor himself, or by his connivance without the assent of obligee, does not avoid the deed. [Totty v. Nesbitt, 3 T. R. 153, note (c); Shepp. Touch. 69.] And it has been so decided by this court [Cutts p. U. S., 1 Gallis 69]. And I have no hesitation in declaring that if the seal is torn off with the assent of the obligee, either by mistake or by fraud and imposition practised by the obligor, it may still be declared on as a deed, making the proper averment of the facts upon the profert, and the party will be entitled to a recovery. The case of Matison v. Atkinson, cited' in a note in 3 T. R. 153, fully supports this doctrine; and if it were of the first impression, I should not hesitate to adopt it. Dealing with this case, therefore, as I am bound to do according to the admitted facts, I must take it to be a case where the obligors to the bonds have procured the destruction of the seals by the obligee, not merely by a mistake of the facts, but by gross fraud and imposition. [See, also, Perrott v. Perrott, 14 East, 423.] We may readily see how this doctrine stands in equity from what fell from Lord Hardwicke in Skip v. Huey [3 Atk. 91, 93], whose language meets the present case in its material features. ' There are many cases,' says his Lordship, 'where equity will set up debts extinguished at law against a surety as well as against a principal; as where a bond is burnt or cancelled by accident or mistake, and much stronger if a principal procure the bond to be delivered up by fraud, in such a case the court would certainly set it up, because he shall not avail himself of the fraud of any of the debtors.' Now it appears to me clear that the doctrine is the same at law as in equity in this respect, whenever from the nature of its proceedings a court of law can administer relief." Powers v. Ware, 2 Pick. 451; Read v. Brookman, 3 T. R. 152; Morrill v. Otis, 12 N. H. 466.
1 Trowel v. Castle, 1 Keb. 22; Bailey v. Taylor, 11 Conn. 531; Crab-tree v. Clark, 20 Me. 337, and cases cited below. See, also, 1 Greenl. on Evid. § 564, and cases cited.
1 Bailey v. Taylor, 11 Conn. 531; Coulson v. Walton, 9 Pet. 62.
2 The rule is so laid down by Professor Greenleaf in his learned treatise on Evidence, vol. i., § 564. See his note on this subject. See, also, Gooch v. Bryant, 13 Me. 386; Crabtree v. Clark, 20 Me. 337; Doe d. Tatham v. Catamore, 5 Eng. Law & Eq. 349; 16 Q. B. 745; Wickes v. Caulk, 5 Harr. & Johns. 41; Bailey v. Taylor, 11 Conn. 531; Wilde v. Armsby, 6 Cush. 314; Hemming v. Trenery, 9 Ad. & El. 926; Smith v. Fenner, 1 Gall. 170; Cumberland Bank v. Hall, 1 Halst. 215; Bar-rington v. Bank of Washington, 14 Serg. & R. 405; Penny v. Corwithe, 18 Johns. 499. See, also, the elaborate judgment in Beaman v. Russell, 20 Vt. 205.
3 Knight v. Clements, 8 Ad. & El. 215; Clifford v. Parker, 2 Man. & G. 909; Bishop v. Chambre, 3 C. & P. 55; Whitfield v. Collingwood, 1 C. & K. 325; Cariss v. Tattersall, 2 Man. & G. 890; Taylor v. Mosely, 6 C & P. 273. And in this country, Hills v. Barnes, 11 N. H. 395; Humphreys v. Guillow, 13 N. H. 385; Simpson v. Stackhouse, 9 Barr, 186; Davis v. Carlisle, 6 Ala. 707; McMicken v. Beauchamp, 2 La. 290; Walters v. Short, 5 Gilm. 252.
4 Steele v. Spencer, 1 Pet. 552; Stephens v. Graham, 7 Serg. & R. 508; Bowers v. Jewell, 2 N. H. 543.
5 Gardner v. Walsh, 32 Eng. Law & Eq. 165; 5 El. & B. 82; Burch-field v. Moore, 25 Eng. Law & Eq. 123; 3 El. & B. 683.
1 Wood v. Steele, 6 Wall. 80 (1867).