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modified the one by the other, and read as one entire agreement; and the bond stands as a security for its performance. Daniel, J., 9 Grat. 250.

It may be, however, that consent to enlarge the time, when not by deed, would not continue the effect of the preceding deed, and consequently would not suffice to give a remedy upon the bond, although it might leave the party a remedy for the breach of the parol contract. Bayley, J., 2 Barn. & Cress. 179; 9 Eng. Com. Law Rep. 57, 8. For in England it is still recognized as an established rule that where an act is required by deed to be done against a certain time, you cannot shew that the period has been extended, except by some instrument also under seal. Tindal, C. J., in Gwynne v. Davy &c. 1 Man. & Grang. 573; 39 Eng. Com. Law Rep. 690. "No rule of law," says Bosanquet, J., "is more fully established than this, that a contract under seal cannot be varied by a parol contract." West v. Blakeway, 2 Man. & Grang. 752; 40 Eng. Com. Law Rep. 752.

2. How far an instrument may be altered by consent.

Consent cannot authorize an alteration in a deed which has been acknowledged before a justice or other officer and by him certified for record. Moore &c. v. Beckham &c. 4 Binn. 1.

In a case wherein there has been no such acknowledgment before a justice or officer, if the alteration be explained to the party sought to be charged in the instrument, and he assents to the alteration, re-executes the instrument and then recognizes its validity, he will be precluded from afterwards objecting to the alteration. Coke v. Brummell &c. 8 Taunt. 439; 4 Eng. Com. Law Rep. 157.

So far an alteration in a sealed instrument, by consent, when the proof of that consent was merely by parol, has been sanctioned by the English courts, within very narrow limits.

Notwithstanding what is said in 2 Roll's Abr. 29, and in Bull. N. P. 267, there may be cases in which blanks left in an obligation would be allowed to be filled up afterwards by consent of the parties. Hudson v. Revett, 5 Bingh. 368; 15 Eng. Com. Law Rep. 472. With such consent a blank was filled in Markham v. Gonaston, Cro. Eliz. 626, Moor 547; and an obligor was added in Zouch v. Clay, 1 Ventr. 185; 2 Keble 872, 881; 2 Lev. 85; cases in which Marshall, C. J., has said the alteration was in the words, not in the obligation of the instrument; he understands the assent to have been to the specific alteration and to be an assent not impliedly but expressly given. U. S. v. Nelson &c. 2 Brock. 71.

The

case of Matson v. Booth, 5 M. & S. 223, was considered to be brought within the authority of Zouch v. Clay.

In the United States there have been cases of an alteration or addition by consent. Woolley v. Constant, 4 Johns. 59; Camden Bank v. Hall &c. 2 Green's (New Jersey) Rep. 583. The erasure was with the consent and in the presence of all the parties in Penny v. Corwithe, 18 Johns. 501. The court in this case said it is competent to the parties interested to consent to an alteration in a deed after it is executed, and then the deed takes effect as a new execution of it.

Mr. Justice Story considers it "clear at the common law that an alteration or addition in a deed, as by adding a new obligor, or an erasure in a deed, as by striking out an old obligor, if done with the consent and concurrence of all the parties to the deed, does not avoid it. And this principle equally applies whether the alteration or erasure be made in pursuance of an agreement or consent prior or subsequent to the deed; and the cases in the books in which erasures, interlineations and alterations in deeds have been held to avoid them, will be found on examination to have been cases in which no such consent had been given." Speake &c. v. U. S. 9 Cranch 37. Here, says C. J. Marshall, the pleadings presented the case of an express authority to make the alteration, and the only questions were, whether this express authority could avail the obligee, and whether it could be given by parol; the case has settled these questions but it goes no farther. 2 Brock. 74.

When in Virginia, to prove that an alteration of a deed if assented to by the obligee would not vitiate it, Shep. Touch. 68; 11 Rep. 27; Com. Dig. 294; 4 Johns. 54; 18 Johns. 449, and 9 Cranch 28, were referred to, Carr, J. said, "I have examined these cases. Some of them say that the alteration, if made by the obligor will not annul the bond; others if made by his consent. But all contemplate a case of consent given prior to or at the time of the alteration made; and it seems to be considered as a re-execution or re-acknowledgment of the deed. Cleaton v. Chambliss, 6 Rand. 92.

3. Distinction between alteration of a bond which is several and a bond which is joint or joint and several.

Although what discharges one of the obligors in a joint bond or a joint and several bond may discharge them all, Seaton v. Henson, 2 Show. 29; Rittenhouse v. Levering, 6 W. & S. 198; Mason v. Bradley, 11 M. & W. 590; yet it is otherwise when the bond is a several, and not a joint and sevral bond. Collins &c. v. Prosser &c. 1 Barn. & Cress. 682;

3 Dow. & Ry. 112; 8 Eng. Com. Law Rep. 183; 16 Id. 146. Covenants which are several are as several deeds written on one and the same piece of parchment or paper if the seal of one of those whose covenants are several be taken from the deed, it will avoid the deed only against him. Mathewson's case. 5 Rep. 23a; Roll's Abr. 30; Bull. N. P. 172.

4. Effect of alteration of bond by obligee.

An alteration in what might be supposed an immaterial point, may, when made by the obligee himself, without the privity. of the obligor, sometimes render the instrument void. Pigot's case, 11 Rep. 27a; Shep. Touch. 69; 15 Johns. 297; Lewis v. Payn, 8 Cow. 73; Moore v. Bickham, 4 Binn. 1; 10 S. & R. 168; Johnson v. Bank U. S. 2 B. Monroe 311. A change of date, or even the most trivial change made by the obligee, it is said, will support the plea of non est factum. Carr, J. in Cleaton v. Chambliss, 6 Rand. 96.

And however this be, certain it is that ever since Pigot's case it has been the settled doctrine of the common law that when a deed is altered in a material point by the plaintiff, be it interlineation, addition, rasing or by drawing a pen through a line or through the midst of any material word, the deed thereby becomes void, unless it appear that the party against whom action is brought on the deed gave his express assent to such alteration. 11 Rep. 27a; Weeks v. Maillerdet, 14 East 568. This rule has been often recognized in the United States. O'Neale v. Long, 4 Cranch 60; Steele's lessee v. Spencer &c. 1 Peters 560; Mills v. Starke, 2 Bailey 359; Barrington &c. v. Bank of Washington, 14 S. & R. 423; Chesley v. Frost, 1 New Hamp. 148; Johnson v. Bank U. S. 2 B. Monroe 311; Miller v. Stewart, 9 Wheat. 708; Arrison v. Harmstead, 2 Barr 194; Wallace v. Harmstad, 3 Id. 467.

The principle is, that a party who has the custody of an instrument made for his benefit is bound to preserve it in its original state. It is, says Lord Denman, highly important for preserving the purity of legal instruments that this principle should be borne in mind and the rule adhered to. Davidson v. Cooper, 13 M. & W. 352.

5. Whether bond will be avoided by a material alteration made by a stranger, without the obligee's privity.

With respect to the opinion expressed in Pigot's case, 11 Rep. 27a, that a material alteration, made by a stranger, with

out the privity of the party claiming under it, renders the deed void, the supreme court of New York would not assent to it in Jackson v. Malen, 15 Johns. 297; and expressly dissented from it in Rees v. Overbaugh, 6 Cow. 749; considering that as according to Read v. Brookman, 3 T. R. 151, a deed may be rendered available to a party notwithstanding its total destruction, there is no principle upon which he can be deprived of the benefit of it when it has suffered a partial injury, either from accident or the act of a stranger over which he had no control.

A like doctrine is maintained in Connecticut. Nichols v. Johnson, 10 Conn. 198; and in Pennsylvania. The supreme court of this state considers that if the name or seal of an obligor be cut or torn off by another obligor or by a stranger without the obligee's consent, the bond is not thereby avoided. Barrington &c. v. Bank of Washington, 14 S. & R. 313; Rhoads v. Frederick, 8 Watts 448.

Moreover, in the supreme court of the United States the opinion was expressed by Thompson, J. that an alteration by a stranger, without the knowledge or consent of the obligee, would not affect the validity of the instrument. U. S. v. Linn &c. 1 How. 110. That opinion preceded the decision in Davidson v. Cooper, 11 M. & W. 798, and is not to be reconciled with this decision. In delivering the judgment of the court of exchequer, Lord Abinger says, "there is no doubt but that in the case of a deed any material alteration, whether made by the party holding it or by a stranger, renders the instrument altogether void from the time when such alteration is made." After observing that this was so resolved in Pigot's case, 11 Rep. 27, he adds, that though it was contended in argument that the rule had been relaxed in modern times, the court was not aware of any authority for such a proposition when the altered deed is relied on as the foundation of a right sought to be enforced. He proceeds to state how it would be in the case of an ejectment to recover lands, and then adds, "But if the party is not proceeding by ejectment to recover the land conveyed, but is suing the grantor under his covenants for title or other covenants contained in the release, then the alteration of the deed in any material point after its execution, whether made by the party or by a stranger, would certainly defeat the right of the party suing

to recover."

This judgment was affirmed in the exchequer chamber; Lord Denman saying the party who may suffer has no right to complain, since there cannot be any alteration except through fraud or laches on his part. To say that Pigot's case

has been overruled (he observes) is a mistake: on the contrary it has been extended; the authorities establishing, as common sense requires that the alteration of an unsealed paper will vitiate it. Davidson v. Cooper, 13 M. & W. 352.

In the United States there was a decision on the same principle in New Jersey. Den v. Wright &c. 2 Halstead 177.

6. Bond not avoided by an immaterial alteration made by a stranger without obligee's privity.

If a stranger, without the obligee's privity, alters the deed in a point not material, it shall not avoid the deed. So it was adjudged in Pigot's case, 11 Rep. 27a; U. S. v. Hatch &c. Paine 342; State v. Miller, 3 Gill 339; and Waugh & wife v. Bussell, 5 Taunt. 707; 1 Eng. Com. Law Rep. 241. Au alteration leaving the sense what it was before is deemed immaterial. Thus, where a bond was conditioned to pay £100 by six equal payments, that is to say, £ 16. 13. 4. each year, with interest on the same, the first payment to be made on the 3d of October 1812, and the same sum annually on the 3d of October in each year with interest until the full sum of pounds" shall be paid, it was considered that the addition in this part of the bond of the word "hundred" before pounds supplied nothing but what could be understood. before it was inserted, and was immaterial, and therefore did. not avoid the bond. Waugh & wife v. Bussell, 5 Taunt. 707; 1 Eng. Com. Law Rep. 341.

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And perhaps the alteration might, as regards the obligor, be deemed immaterial where the amount is reduced from a larger to a smaller sum, as from $400 to $323. A bond was adjudged not to be vitiated by such an alteration, where, after the surety had signed it, the principal with whom he had entrusted it, as his agent, made the alteration before delivering it to the obligee. Ogle v. Graham, 2 Pen. & Watts 132.

7. Whether adding the name of a subscribing witness as to a party who did not acknowledge the instrument before him will vitiate the bond.

The circumstances under which one may lawfully subscribe his name as an attesting witness, were considered in Parke v. Mears, 2 Bos. & Pul. 217; Wright &c. v. Wakeford, 4 Taunt. 214; McCraw v. Gentry, 3 Camp. 232; Loyd v. Frichfield, 2 C. & P. 325; 2 Eng. Com. Law Rep. 151; and Smith v. Dunham, 8 Pick. 246. All will agree that persons who were not present when an instrument was acknowledged

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