Carman, 12 Johns. 161; Com. Bank v. Korkwright, 22 Wend. 357.

In Massachusetts, where the person intended to be surety was made payee without the words "or order," and the note was endorsed by him in blank, the holder has been allowed to write over his name these words: "For value received 1 undertake to pay the money within mentioned to E. J." Joselyn v. Ames, 3 Mass. 514. And when the note by mistake was not payable to the intended endorser, but to the creditor, the effect of the endorser's signature was considered to be the same as if he had subscribed the note on the face of it as a surety though there was no demand on the maker, or notice to the endorser, the latter was held answerable-as if he had subscribed the note on the face of it as a surety. White v. Howland, 9 Mass. 301.

The supreme court of New York followed this case in Nelson v. Dubois, 13 Johns. 175, and Campbell v. Butler, 14 Johns. 349. It was observed that the endorser in these cases had either been present and agreed to guaranty the payment, or it appeared in proof that he knew the extent of his endorsement to be as alleged, which was not the case in Tillman v. Wheeler, 17 Johns. 326.

The principle of this class of cases is stated in Moies v. Bird, 11 Mass. 440, in Beckwith v. Angell, 6 Con. 315, which Cowen, J. thinks (17 Wend. 220) pushed the former authorities to a greater length than they would originally warrant, and in Dean v. Hall, 17 Wend. 215. When," says Cowen, J., "notes have been made payable to a particular person or order, or to the order of a particular person, and endorsed first by a third person, such third person has been held to be an original maker of the note, or a guarantor of payment, according to the nature of the transaction and the understanding of the parties. If such endorser put his name on the back of the note at the time it was made, according to a promise to become originally and directly responsible, or if he participated in the consideration for which the paper was given, he has been adjudged a joint maker. If his endorsement was subsequent to the making of the note, and he had nothing to do with the original consideration, but put his name on the note to add to the security, he has been adjudged a guarantor. The reason of these decisions appears to be this-the paper was not negotiable mercantile paper, and was not within the law merchant, and the person by putting his name on the note could not become an endorser, according to mercantile usage; but as he put his name to the instrument to add to its security, he must be responsible in some shape, and therefore he must

be considered either as maker or guarantor, according to the original intention of the parties." Hough v. Gray, 19 Wend. 202.

In Virginia, the subject was much discussed in a case wherein the paper was entirely blank, with the names of the signers on one side and of the endorser on the other, at the time of its delivery to the plaintiff. He filled it up with a note payable to himself, not in its form negotiable, and on which, therefore, there could not, technically speaking, be an endorser. The court held that the plaintiff had a right to fill up the paper as he did, and upon the endorsement of the defendant to charge him either as a collateral promiser or as a direct and absolute surety. Orrick v. Colston, 7 Grat. 195.

The author is unable to assent to the correctness of this judgment. Let it be that the authority to fill up the instru ment must be judged of from the paper itself. 9 W. H. & G. 686. How can a name on the back of a paper, blank when it is delivered to the payee, import an authority to fill it up so as to make the endorser undertake absolutely to pay the money? The paper, as it came to the payee, imported no more than an authority to fill it up, so as to make the endorser bound to pay on condition. It might admit of question, whether the condition should be that attaching to a negotiable instrument, to wit: to demand payment at maturity and give notice of dishonour, or the condition which in Virginia attaches to a note not negotiable, to wit: use due diligence to enforce payment from the maker; but it was reasonable to intend that the party putting his name on the back of the paper intended to make it subject to the one condition or the other, and, whether the one or the other, the payee should not be relieved from the performance of that condition, either by his own act or by the judgment of the court.

CHAPTER XIV.

HOW THE VALIDITY OF AN UNSEALED INSTRUMENT IS AFFECTED BY A MATERIAL ALTERATION.

1. Principle of Pigot's case applied to unsealed instruments.

The principle of Pigot's case, 11 Rep. 27a, cited ante, p. 27, is not confined to deeds. Masters &c. v. Miller, 4 T. R.

320. The law of England being that a material alteration in a deed, whether made by a party or a stranger, is fatal to its validity, that principle is equally applied to an unsealed instrument. Davidson v. Cooper, 11 M. & W. 802; 13 Id. 352.

2. As to alteration of a bill of exchange.

A bill of exchange, said Eyre, C. J., "is more easily altered than a deed; if, therefore, courts of justice were not to insist on bills being strictly and faithfully kept, alterations in them highly dangerous might take place, such as the addition of a cypher in a bill for £ 100, by which the sum might be changed to £1000, and the holder having failed in attempting to recover the £1000 might afterwards take his chance of recovering the £100, as the bill originally stood. But such a proceeding would be intolerable. Master v. Miller, 2 H. Bl. 143.

An action may not be defeated by an alteration which is immaterial, Hunt v. Adams, 6 Mass. 519; Trapp v. Spearman, 3 Esp. 57; Farquahar &c. v. Southey &c. 1 Mood. & Malk. 14, 22 Eng. Com. Law Rep. 234; or to which the defendant has consented, Kershaw &c. v. Cox, 3 Esp. 246; 10 East 437; Tarleton v. Shingler, 7 Man. Gr. & Scott 812, 62 Eng. Com. Law Rep. 812.

But in the absence of such consent, the rule applies that any material alteration in the instrument vacates it. Cowie &c. v. Halsall, 4 Barn. & Ald. 197; 6 Eng. Com. Law Rep. 399. An action on a bill will fail when there has been such alteration of it while it was in possession either of the plaintiff or of a person under whom the plaintiff claims. An endorsee has failed in an action against the acceptor of a bill which after the acceptance, and while the bill was in the payee's possession, was altered as to the date, (whereby the day of payment was accelerated,) 4 T. R. 320; 2 H. Bl. 143; Cook v. Coxwell, 2 C. M. & R. 290; or altered as to the place of payment, Tidmarsh v. Grover, 1 M. & S. 735; as for example, where it was in the first instance accepted generally, and, after being put in circulation, altered by the addition of the words "payable at W. & Co. bankers." Although under the statute of 1 & 2 Geo. 4, c. 78, the words so added, if in the hand-writing of the defendant would still leave the acceptance a general acceptance, and therefore not alter his direct liability, yet the alteration is nevertheless considered to be in a material part of the bill. For the right of the endorsee to sue his immediate endorser would as the bill appears be complete upon

Rob. 438, Taylor v. that such

default made at the bankers, and notice thereof; whereas in truth, the acceptor, not having, in reality, undertaken to pay there, would have committed no default by such non-payment. Mackintosh v. Haydon, Ry. & Moo. 362, 21 Eng. Com. Law Rep. 456; Desbrowe v. Wetherby, 1 M. & 6 C. & P. 758, 25 Eng. Com. Law Rep. 636; Moseley, Id. 397, 6 C. & P. It is therefore held addition makes the acceptance itself a nullity. Calvert v. Baker, 4 M. & W. 417; Burchfield v. Moore, 3 El. & Black. 686, 77 Eng. Com. Law Rep. 686, 25 Eng. Law & Eq. 123. Very different is it, when the acceptor or maker of an instrument payable generally, makes in the margin, a memorandum of the place for his payment. This may not impair the holder's remedy on the instrument even against an endorser. Woodworth v. Bank of America, 18 Johns. 315; 19 Id. 393. But in the other case-of an addition not by the acceptor or with his consent-the holder is confined to a right to recover the consideration for the bill as between himself and the party from whom he received it. A similar remedy may be resorted to, till the party is reached through whose fraud or laches the alteration was made: he (Lord Campbell thinks) ought to suffer. Burchfield v. Moore, 3 El. & Black. 687; 77 Eng. Com. Law Rep. 687; 25 Eng. Law & Eq. 123.

3. As to the alteration of a promissory note.

Such a material alteration as would affect a bill of exchange, will in like manner, affect a note. Bank of U. S. v. Russel &c. 3 Yeates 391; Knell v. Williams, 10 East 431. An action on a note will be defeated by such an alteration of the date or other material part of the instrument, as would if the instrument were a bill of exchange, defeat an action upon it. Wheelock v. Freeman, 13 Pick. 168; Stevens v. Graham &c. 7 S. & R. 508.

Where a paper is signed and delivered for the most part blank, if at the time of such delivery the date was not blank, there is no implied authority to make the note of any other date than that which was then affixed; and if in such case the date be afterwards changed without the consent of those who had signed the paper, then the note with such substituted date is not that which they had signed, and no action can be maintained against them upon it. Mitchell &c. v. Ringgold, 3 Har. & J. 159; Bank of Com. v. McChord &c. 4 Dana 191.

4. As to the alteration of unsealed instruments generally.

The principle of Pigot's case is not confined to deeds, bills of exchange and promissory notes; it has been applied to policies of assurance and other written instruments constituting the evidence of contracts. Powell &c. v. Develt &c. 15 East 29; Langhorn v. Cologan, 4 Taunt. 320; Fairlie &c. v. Christie, 7 Taunt. 416; 2 Eng. Com. Law Rep. 159; Perning &c. v. Hone, 4 Bingh. 18; 13 Eng. Com. Law Rep. 328; Pepoon v. Stagg & Co. 1 Nott & M. 102; Newell v. Mayberry, 3 Leigh 250; Johnson v. Bank of U. S. 2 B. Monroe 311, 12; Martindale v. Follet, 1 New Hamp. 96, 7.

To the objection that an instrument is vitiated by an alteration in a material part, it is no answer to say that the alteration is not made in respect of the duty of which the plaintiff complains. Mollett v. Wackerbarth, 5 Man. Gr. & Scott 193; 57 Eng. Com. Law Rep. 193.

5. Where the alteration is by adding seals to the signatures.

Where an instrument of guaranty was altered by adding seals to the signatures, it was suggested that this was no alteration, for that the instrument remained exactly as it was when signed; but the court observed that the addition of seals gives a different legal character to the writing, and would, if made with the consent of all interested, completely change the nature of the relation towards each other of the parties to it and the remedies upon it. The observation that a deed is not made by sealing but by delivery, Lord Denman observes, does not appear to touch the argument, for no addition, erasure or interlineation after execution makes the actual instrument different in legal effect from what it was. The original document may be perfectly visible through the attempt to disguise it, but a different appearance is produced: the truth cannot be known from inspection but would require to be established by evidence, and this through some default of the person to whose care it was consigned, and who would be possessed of a superior legal remedy if the altered writing could be imposed on the contractor as genuine. Davidson v. Cooper, 13 M. &

W. 353.

6. Where the alteration is by adding, as a subscribing witness, the name of a person who was not a witness.

In Massachusetts, whose statute of limitations makes a distinction between notes with and notes without a subscribing