§ 145

Alteration of bill.

12. The question of the alteration of a note is for the jury: Domville v. Davies, 13 N. S. (1 R. & G.) 159 (1879); Street v. Walsh, Stevens' N. B. Dig. 250 (1862).

13. Where a renewal note was altered by inserting the words 'jointly and severally," it was rendered void; but plaintiffs recovered the balance due on the original note which was also declared on: People's Bank v. Wharton, 27 N. S. 67 (1894).

14. The rule in the proviso was applied in favor of plaintiffs when after the note was signed the words "jointly and severally ' had been inserted in the same handwriting as the rest of the body of the note: Waterous Engine Co. v. McLean, 2 Man. 279 (1885):

15. A genuine cheque for $6 was altered to $1,000 so skilfully as to escape detection, and deposited in another bank by the pretended payee, $25 being paid him at the time and $800 more after collect on from the drawee bank. At the end of the month the forgery was discovered. Held, following Imperial Bank v. Bank of Hamilton, supra, that the drawee was entitled to recover from the collecting bank: Dominion Bank v. Union Bank, 40 S. C. Can. 366 (1908).

16. Where a bill is voided on account of a material alteration, the holder cannot sue on the consideration, unless the alteration took place before the bill was negotiated to him, or he is innocent in the matter, and the person from whom he received it, had no remedy over on the bill: Alderson v. Langdale, 3 B. & Ad. 660 (1832); Burchfield v. Moore, 3 E. & B. 683 (1854); Atkinson v. Hawdon, 2 A. & E. 628 (1835).

17. Where a bill appears to have been altered, the party seeking to enforce it must show that it is not avoided thereby : Knight v. Clements, 8 A. & E. 215 (1838).

18. The alteration may be "apparent " although the holder may not have been able to detect it: Leeds Bank v. Walker, 11 Q. B. D. 84 (1883). But see Cunnington v. Peterson, 29 O. R. at p. 349 (1898).

19. A bill for £500 was after acceptance altered by the drawer to £3,500. The stamp was sufficient to cover the larger amount, and the bill when accepted had spaces where the words and figures necessary for the alterations were written in. In an action by a holder for value against the acceptor, it was held that the latter was not estopped from setting up the true facts, and was only liable for £500: Scholfield v. Londesborough, [1896] A. C. 514; followed in Imperial Bank v. Hamilton, [1903] A. C. 49; Colonial Bank v. Marshall, [1906] A. C. 559; Smith v. Prosser, [1907] 2 K. B. at p. 746; Lewes v. Barclay, 11 Com. Cas. 255 (1906).

20. A bill was materially altered by the son of the acceptor. The next day the acceptor gave her son full authority to draw, accept, etc., for her. Held, that the bill was voided by the alteration: Sutton v. Blakey, 13 T. L. R. 441 (1897).

21. Except in the case of banker and customer, there is no duty § 145 on the part of the drawer or maker of a negotiable instrument to use care in framing it so as, as far as possible, to prevent fraudulent interpolation or alteration, and failure to use such care will not prevent him from setting up the defence that the instrument has been avoided as against him by material alteration without his con sent. A finding by the jury that but for the plaintiff's want of care he would have seen that the bill in question had been altered, negatived the proviso of this section and was equivalent to a finding that the alteration was apparent: Brown v. Bennett; Colonial Bank v. Bennett, 9 N. Z. L. R. 487 (1891). See No. 19, supra.

22. Defendants made a note in England to the order of the Goderich Organ Co. and sent it to the payees in Canada, who had become an incorporated company. The word "Limited" was added to the name of the payees on the face of the note, and it was endorsed in that name to the plaintiffs. The alteration was not apparent. Held, that the plaintiffs could not recover as the original payees had not endorsed: Bank of Montreal v. Exhibit and Trading Co., 22 T. L. R. 722 (1906).

Place.

(d) of the place of payment;

(e) by the addition of a place of payment with- Adding out the acceptor's assent where a bill has places. been accepted generally; is a material altera

tion.

64 (2).

53 V., c. 33, s. 63 (2). Imp. Act, s.

This is not an exhaustive list of material alterations, but merely an enumeration of some of the changes which have been held to be material.

ILLUSTRATIONS.

The following alterations in bills and notes have been held to be material:

1. Alteration of the date: Meredith v. Culver, 5 U. C. Q. B. 218 (1848); Gladstone v. Dew, 9 U. C. C. P. 439 (1859); Beltz v. Molsons Bank, 40 U. C. Q. B. 253 (1876); Banque Ville Marie v. Primeau, 26 L. C. J. 20 (1881); Quebec Bank v. Ogilvy, 3 Dorion 200 (1883); Master v. Miller, 4 T. R. 320 (1791); Outhwaite v.

M'L.B.E.A.-24

Discharge

§ 146 Luntley, 4 Camp. 179 (1815); Atkinson v. Hawdon, 2 A. & E. 628 (1835); Hirschman v. Budd, L. R. 8 Ex. 171 (1873); Vance v. Lowther, 1 Ex. D. 176 (1876); Engle v. Stourton, 5 T. L. R. 444 by altera (1889). Even although it be by changing the date of a demand note, payable with interest, to a later date, which benefits the maker by reducing the amount of interest chargeable to him: Boulton v. Langmuir, 24 Ont. A. R. 618 (1897).

tion.

2. Alteration of the sum payable: Halcrow v. Kelly, 28 U. C. C. P. 551 (1878); Fitch v. Kelly, 44 U. C. Q. B. 578 (1879); Hébert v. Banque Nationale, 40 S. C. Can. 458 (1908). Even if made less: Hamelin v. Bruck, 9 Q. B. 306 (1846); Sutton v. Toomer, 7 B. & C. 416 (1827); Warrington v. Early, 2 E. & B. 763 (1853).

3. Alteration of the time of payment: Meredith v. Culver, supra; Reg. v. Craig, 7 U. C. C. P. 239 (1857); Westloh v. Brown, 43 U. C. Q. B. 402 (1878); Long v. Moore, 3 Esp. 155 n. (1790).

McQueen v. McIntyre, Grover, 1 M. & S. 735

4. Alteration of the place of payment:
30 U. C. C. P. 426 (1879); Tidmarsh v.
(1813); Cowie v. Halsall, 4 B. & Ald. 197 (1821).

5. Adding a place of payment: Jones v. Reid, 7 O. W. R. 131 (1906); Calvert v. Baker, 4 M. & W. 417 (1838); Gibb v. Mather, 2 Cr. & J. at p. 262 (1832).

6. Adding "with interest:" Jones v. Reid, 7 O. W. R. 131 (1906); Hébert v. Banque Nationale. 40 S. C. Can. 458 (1908).

7. Adding "Limited" to the name of the payee (Quære): Bank of Montreal v. Exhibit and Trading Co., 22 T. L. R. 722 (1906).

8. Making a "joint" note "joint and several:" Samson v. Yager, 4 U. C. O. S. 3 (1834); Banque Provinciale v. Arnoldi, 2 O. L. R. 624 (1901); People's Bank v. Wharton, 27 N. S. 67 (1894); Perring v. Hone, 4 Bing. 28 (1826). See Leslie v. Emmons, 25 U. C. Q. B. 243 (1866).

Camp

9. By striking out or clipping off a condition indorsed: bell v. McKinnon, 18 U. C. Q. B. 612 (1859); Swaisland v. Davidson, 3 0. R. 320 (1883).

10. By adding "or order" to make the note negotiable: Lawton v. Millidge, 4 N. B. (2 Kerr) 520 (1844). But see No. 7 below.

11. By adding a new maker after issue: Reid v. Humphrey, 6 Ont. A. R. 403 (1881); Carrique v. Beaty, 24 Ont. A. R. 302 (1897); Gardner v. Walsh, 5 E. & B. 83 (1855); Browning v. Gosnell, (Iowa) 59 N. W. R. 340 (1894). Contra. Kinnard v. Tewsley, 27 O. R. 398 (1896); Mersman v. Werges, 112 U. S. 139 (1884) approved.

12. Erasing the word "renewal in the margin: Maxon v. Irwin, 15 O. L. R. 81 (1907).

13. Striking out without the consent of the makers a memorandum on the back of a note that it was to be renewed: Fulton v. McCardle, 6 N. Z. L. R. 365 (1888).

§ 146

Material.

14. Erasing the signature of one of two joint makers: Nicholson v. Revill, 4 A. & E. 675 (1836).

15. Cutting off the signatures of one of several joint makers: Mason v. Bradley, 11 M. & W. 590 (1843).

16. Filling up a blank with an incorrect date: Harrison v. Cotgreave, 4 C. B. 562 (1847).

17. Writing on the face of a foreign bill a special rate of exchange: Hirschfield v. Smith, L. R. 1 C. P. 340 (1866).

18. Altering the numbers of Bank of England notes: Bank of England, 9 Q. B. D. 535 (1882).

Suffell v.

19. Changing "I" to "we:" Draper v. Wood, 112 Mass. 315 (1873).

66

20. Changing order" to "bearer:" Re Commercial Bank, 10 Man. 171 (1894); Booth v. Powers, 56 N. Y. 22 (1874).

21. Where a note was payable with interest, adding "after maturity:" Coburn v. Webb, 56 Ind. 100 (1877).

The following alterations have been held not to be material:

1. Changing the date of a note from 1886 to 1896, where the former figures were written by inadvertence for the latter: McLaren v. Miller. 36 C. L. J. 680 (1900).

2. Inserting the word "months" where inadvertently omitted: Lainé v. Clarke, 3 Rev. de Lég. 434 (1816).

3. As regards the maker, giving the note a later date: Canadian Investment Co. v. Brown, 19 R. L. 364 (1890).

4. Writing the words " pour aval over the signature of the first indorser, when he had in fact indorsed the note above the payee, and as an "aval:" Abbott v. Wurtele, Q. R. 6 S. C. 204 (1894).

5. The maker of an accommodation note issued in June, dated it "6th, 1875," without a month. June 6th was a Sunday. The payee made the date June 8th. Held, that the note was not voided: Merchants' Bank v. Sterling, 13 N. S. (1 R. & G.) 439 (1880); but now see sub-section 2. supra.

6. Adding a memorandum at the foot declaring the note to be payable at a particular place: Cunard v. Tozer, 4 N. B. (2 Kerr)

365 (1844); Sims v. Anderson, V. L. R. (1908) p. 348.

66

7. Adding or order:" Kershaw v. Cox, 3 Esp. 246 (1800); Byrom v. Thompson, 11 A. & E. 31 (1839).

Not material.

§ 146

Not material.

Acceptance for honour

supra protest.

8. Changing the name of the drawees from S. C. & Co. to S. & C., their proper firm name: Farquhar v. Southey, 1 M. & M. 14 (1826).

66

9. Adding on demand," where no due time was mentioned: Aldous v. Cornwell, L. R. 3 Q. B. 573 (1868).

46

10. Striking out the word order in a bill payable to order L. D. F.:" Decroix v. Meyer, 25 Q. B. D. 343 (1890).

11. Inserting the word 'pay" where inadvertently omitted: Maclean v. McEwen, 1 Rettie (5th series), 381 (1899).

12. Adding "for the Bank of, etc.," to the cashier when he had in fact signed for the bank: 18 Pick. (Mass.) 63 (1836).

signature of the Folger v. Chase,

13. Inserting the dollar mark before the numerals: Houghton v. Francis. 29 Ill. 244 (1862).

14. Correcting a name incorrectly written: H. 227 (1863); Derby v. Thrall, 44 Vt. 413

15. Retracing a faded name in clear ink: Nat. Park Bank, 59 Hun. 495 (1891).

Cole v. Hills, 44 N. (1872).

U. S. Nat. Bank v.

ACCEPTANCE AND PAYMENT FOR HONOUR.

Sections 147 to 155, inclusive, relate to this peculiar form of acceptance and payment, called also supra protest, because it can only take place after the bill has been protested for non-acceptance or non-payment as the case may be. In the French Code de Commerce it is called acceptance or payment by intervention. On account of the great facilities which parties to a bill now have for communicating with each other, it is seldom resorted to in the course of modern mercantile affairs. As a rule the same object may be attained by simply paying the amount of the bill to the holder and taking a transfer from him.

147. Where a bill of exchange has been protested for dishonour by non-acceptance, or protested for better security, and is not overdue, any person, not being a party already liable thereon, may, with the consent of the holder, intervene and accept the bill supra protest, for the honour of any party liable thereon, or for the honour of the person for whose account the bill is drawn. 53 V., c. 33, s. 64 (1). Imp. Act, s. 65 (1).