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“ of the bill while in his custody, and the same objection must “hold against the plaintiffs who derived title from him.”
The following alterations have been held to be material. A change in the date of the bill advancing the date of maturity, a change in the date postponing the date of maturity,' where the alteration was in the date of a cheque.3
As to sum payable.—Eyre, C. J., in Master v. Miller, (supra) said, “A bill is more easily altered than a deed, if Courts of " Justice were not to insist op bills being strictly and faithfully
kept, alterations in them highly dangerous might take place, "such as the addition of a cipher in a bill for £100 by which " the sum may be changed to £1,000 and the holder having “ failed in attempting to recover the £1,000, might afterwards "take his chance of recovering the £100 as the bill originally But such a proceeding would be intolerable.”
In Warrington v. Early, where a promissory note had been made payable five months after date with lawful interest, and in the corner of the note at the plaintiff's request and without defendant's knowledge an addition of the words “interest to be paid at £6 per cent. per annum” was made, the alteration was held to be material and vitiate the note. In Hirschfield v. Smith,s where. the rate of exchange at which a foreign bill was to be paid, was added after it had been endorsed, it was held to render the bill void, though it was proved that the addition of the rate might have been beneficial to the drawer.
As to place. If the place of payment of an acceptance is altered, the bill is rendered void as against even a bonâ fide holder for value. Thus when the defendant had given his acceptance in blank to the plaintiff which the latter filled up payable at 135, Euston Road, where the words payable at Mr. B's, Chiswell Street, had been added' and in McIntosh v. Haydon, & Abbott, C. J., says, “Suppose a bill so altered to be indorsed " to a person ignorant of the alteration, his right to sue his "indorser would, as the bill appears, be complete, upon default
"where the bill is payable; whereas in truth, the acceptor, not
having in reality andertaken to pay there, would have com“mitted no default by such non-payment. I am of opinion, “therefore, that the alteration is in a material part of the bill
, "and the acceptor is in consequence, discharged.”
Adding Names.- This we have seen already, cannot be done without vitiating the instrument,' but previous to that case, the addition of a contracting party was held to be merely inoperative as to the added party.
Withdrawing Names.- Two instances of this appear in the reports, where the removal of the name of a joint maker of a promissory note was the alteration, and though in both cases the plaintiff was held entitled to recover, judgment proceeded on points of pleading, but the Court intimated its opinion, that the alteration was material, and would have vitiated the promissory note had the pleas been properly framed. As techni. calities in pleading are not now recognized in our Courts, these cases may be taken as authorities for saying, that where, as in one,“ one of the signatures to promissory note had been cut off, that would be a material alteration within the section. While advancing this proposition, I do not overlook the fact, that in the bill as originally framed by the Indian Law Commission, adding the name of a maker or drawer is mentioned as a substantial altering of a bill or note, withdrawing a name is not mentioned.
So far we have considered, what are material alterations made without consent of parties to the instrument, at the time of the alteration, and not made for the purpose of making the instrument conform to the intention of the original parties. We will now consider a few cases where alterations were held not to be material. In Catton v. Simpsons where the plaintiff joined the defendant as his surety in a joint and several promissory note, and the payee having pressed defendant for payment, had consented to give time on his procuring a third person to add his name to the note. Plaintiff subsequently paid part of the note, and sued defendant for repayment, and it was objected that as
1 Gardner v. Walsh, 5 E. & B. 83; S. C. 24 L. J. (Q. B.) 285.
· Catton v. Simpson, 8 A. & E. 136.
3 Mason v. Bradley, 11 M. &
W. 590; Parry v. Nicholson, 13
* Parry v. Nicholson (supra).
" It seems
the name of a third party had been added without plaintiff's consent, he had been discharged and had paid the money for his own wrong. The Court held it was not an alteration of the note, but an addition which had no effect; Gardener v. Walshi overruled this case. Where a promissory expressed no time for payment, (see Sec. 19) and while it was in possession of the payee the words “on demand” were added without the maker's consent; in an action by the payee, the Court said, " to us repugnant to justice and common sense, to hold that the “maker of a promissory note is discharged from his obligation to
pay it, because the holder has put in writing on the note what the law would have supplied, if the words had not been 6 written."
The insertion of a mere memorandum showing the right place for payment, or the correction of the acceptor's name, are not material. The alteration of the number of a Bank of England note, was held by the Queen's Bench Division not to be such a material alteration as to affect the rights of a bonâ fide holder of the note for value.“ The alteration to be material, must vary or be an attempt to vary the contract. In ex parte Yates, the executor of a payee of a promissory note, forbore at the request of one of the makers to press for payment of it on his procuring additional security, and accordingly another party placed his signature on it, not under those of the makers but in the opposite corner; the Court held it was not an alteration by addition but an indorsement.
Alteration made with consent.-The difficulties which arise on bills of exchange, and promissory notes on which alterations have been made by consent of the parties thereto, generally owe their origin, to the question whether or not the stamp upon
them covers the new agreement, or whether by substituting something for the original an entirely new bill or note is not made.'
From clauses (6) and (c) of Sec. 51 of the Stamp Act, it will be seen, that provision is made, for enabling parties to negotiable instruments, to make what we may call clean bills, without having to incur the expense of a second stamp duty, in case of mistakes or omissions having occurred, from which the inference to be drawn is, that the Law will not favor altered instruments. These provisions would however seem only applicable in practice, where the bill note or cheque has not been negotiated within the meaning of Sec. 14, or where after negotiation the parties thereto are but few. They would not therefore be applicable in their entirety, as wholly preventing material alterations after issue of the instrument, because the section does not render void alterations made without the consent of the parties to it, where such alteration is to make it conform or carry
out the intention of the original parties. So, for instance, in Byrom v. Thompson, where the defendant drew a promissory note in favor of plaintiff without the words “or order," and six months afterwards plaintiff mentioned the omission to defendant, who answered that the omission was his own, and consented that the words should be inserted, which was done, it was held that the alteration was only made in furtherance of the original intention of the parties and to correct a mistake, and being so no new stamp was requisite. The section as we have before seen, would seem only to apply to alterations after issue, because the stamp law provides for renewing stamps spoiled, and the English cases as far as they go, as summarised in Byles are not affected by the stamp laws, when the bill is altered to correct a mistake or supply an omission, and in furtherance of the original intention of the parties.
The second paragraph of the section expressly relieves from liability the indorser of an indorsee, who makes a material alteration without the necessary consent. 3 This is founded on Burchfield v. Moore, where the alteration was by the indorsee inserting a place for payment.
i See Secs. 16, 29, 34, 44, 51 of the Stamp Act. (app).
II A. & E. 31.
3 See Sec. 40.
4 3 E. & B. 683; 3 C. 23 L. J. (O. B.) 261.
As to the exceptions in the 3rd paragraph, the reader is referred to the remarks on the several sections.
Burden of proof when a bill appears to have been altered.—Under Sec. 102 of the Evidence Act the burden of proof on such a document would lie upon the plaintiff, for the presumption is against a negotiable instrument bearing obliterations or alterations."
tion is not apparent.
88. An acceptor or indorser of a negotiable Acceptor or ininstrument is bound by his acceptance or indorse- notwithstandment notwithstanding any previous alteration of the ing previous instrument.
This section would hardly seem necessary for, as their assent has been expressed in writing on the bill, it is nothing but the contract they entered into.
89. Where a promissory note, bill of exchange or Payment of in. cheque has been materially altered but does not which alteraappear to have been so altered,
or where a cheque is presented for payment which does not at the time of presentation appear to be crossed or to have had a crossing which has been obliterated,
payment thereof by a person or Banker liable to pay, and paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such person or Banker from all liability thereon, and such payment shall not be questioned by reason of the instrument having been altered, or the cheque crossed.
The neglect must be in the transaction itself, and the proximate cause of leading the party into the mistake, and must also be the neglect of some duty, that is owing to the person led into the belief, or what comes to the same thing, to the general public of whom that person is one, and not merely neglect of what
i Ramasamy Row v. Bhavani Ayyar, 3 M. H. C. R. 247.