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William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) online

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Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 66 of 109)
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Gray, 1 Litt. (Ky.) 149 ; Piper v. Richardson. 9 Mete. 155; Meeks\.
RicKbourgh, 1 Hep. Con. Ct. 411.

The common-law doctrines on this subject now prevail m very few,
if any, of the States. In Florida, Illinois, Iowa, Maine, Maryland,
Massachusetts, Michigan, Nebraska, New Jersey, Ohio, Pennsylvania,
and Wisconsin, they have been entirely abrogated, and aliens may pur-
chase, hold, inherit, and transmit property, the same as native born cit-
izens. In Connecticut, Mississippi, and New Hampshire, the only con-
dition of enjoying those rights is residence ; while California requires a
non-resident alien to whom an inheritance falls to come and claim it
within five years ; and Missouri requires that an alien heir, residing in
another of the United States, shall have declared his intention to become
a citizen, in order to entitle him to inherit. See Wacker v. Wacker,
26 Mo. 426 ; Siemssen v. Bofer, 6 Cal. 250. In Georgia, Rhode Island,
Tennessee, and Texas, resident aliens may purchase and convey lands,
if they have declared their intentions to become citizens ; and so they
may in Alabama, Arkansas, and Delaware, but in the latter States, to
take by descent, they must be residents of the United States at the
death of the intestate. In Kentucky aliens enjoy the most of the rights
of citizens, but two years' residence is necessary to enable them to inherit
lands. Beard, v. Roioan, 1 McLean (C. C), 135 ; 'White v. ^Yhite, 2
Mete. (Ky.) 185 ; Yeaker v. Yeaker, 4 id. 33 ; Eustache v. Rodaquest,
11 Bush, 42; Dudley v. Grayson, 6 Monr. 260. Virginia permits
aliens to hold land for twenty years, for residence, trade or manufacture.
.By an act of 1779, that State allowed aliens to take patents for land
during the time within which he was required to become a citizen ;
confirming the title if he afterward became such citizen. It also secured
from escheat lands acquired by aliens under statutes preceding the patent,
yet left them in other respects under the ordinary alien disabilities.
Elmendorff v. Carmichael, 3 Litt. (Ky.) 475 ; Doe v. Robertson^ 11



4Gi ALIEN AND ALIENAGE.

Wheat. 332. Sul)sor|nont statute!*, protcctiiiii^ purcliasors of sueli lands
before escheat to the State, are held to extend to ec^^uitable as well as to
legal estates. Robertson v. Miller^ 1 Brock. (C. C.) 466. An alien
enemy could, in that State, take lands by devise, and it has been held
that a British subject to whom such a devise was made in 1781, could,
by the treaty of 1794, hold and alien the lands so devised. Stephen v.
Swann, 1) Leigh (Va.), 404.

A South Carolina statute of 1807 permitted a/iens, who had declared
their intentions to become citizens, to take lands by grant, and lands
held by them might be conveyed, devised or distributed to their children,
grand-children, or other relations, wlio should, within one year after the
death of the owner, become residents of the State, and as soon as al-
lowed by law, become citizens. Michaf ds v. McDonald^ 2 Rep. Con.
Ct. 18.

An English statute, held in 1824 to be still in force in Maryland, re-
moving the disability as to claiming title by descent through an alien
ancestor, is held to merely put the claimant in the same position as he
would be if his ancestor had not been an alien ; and not to apply to the
case of a living alien ancestor, so as to create a title by heirship where
by common law it would not exist if the ancestor was a natural born
subject. McCreery Y.Somerville, 9 Wheat. 354. The same construc-
tion has been put upon a similar statute in Texas. McKinney v. Saviego^
18 How. (U. S.) 235.

A Maryland statute of 1791, allowing foreigners to hold lands, is held
to be a mere enabling act, applicable only to those who could not other-
wise take. Lands purchased there by an alien before naturalization can
be held under that law, and transmitted to his alien heirs and relations,
even after he becomes a citizen ; but those purchased by him after nat-
uralization are held by him as a citizen, and cannot be so transmitted.
Spratt V. Spratt, 1 Pet. 343 ; S. C, 4 id. 393. The subsequent statute
of 1813 is held not to authorize a female alien, who never resided in the
United States during coverture to be endowed, or to inherit from her
husband. Buchanan v, Deshon, 1 Harr. & Gill (Md.), 280.

New York permits aliens who have declared their intention to become
citizens, and taken the oath as to actual residence, etc., required by
statute, to take and hold lands to them and their' assigns. Length of
residence alone does not, in that State, entitle an unnaturalized alien to
inherit lands, nor enable a person to deduce title through an alien an-
cestor still living. Kennedy v. Wood, 20 Wend. 230 ; People v. Irvin,
21 id. 128. An act of 1827, investing certain persons with heritable
blood and power of transmitting to next of kin, is held not to permit
their estates to go to next of kin who are aliens. Parish v. Ward, 28



ALIEN AND ALIENAGE. 465

Barb. 328. But see McCarty v. Terry ^ 7 Lans. 236 ; Ettenheimer v.
Heffernan, QQ Barb. 374. An act of 1845 enabled children of deceased
resident aliens to inherit their lands, thongh themselves non-resident
ahens, but the title of male heirs who were of full age was defeasible by
the State, unless they declared their intention to become citizens before
the institution of proceedings to forfeit them. Goodrich v. Russell, 42
N. Y. (3 Hand) 177. See Dusenherry v. Dawson, 9 Ilun (N. Y.), 511 ;
Hall V. Hall, 13 id. 306. By recent statutes, resident aliens can take
by descent from their parents, and the title of citizens is not affected by
the alienage of former owners.

A New Jersey statute of 1817 enables the children bom in this
country, of a person who purchased land in that State while an alien
enemy, and continued to hold it after that date, and after he became
an alien friend, to inherit from him, and his widow to take dower in
such land. Yeo v. Mercereau, 3 Harr. (N. J.) 387.

Under the statutes of Indiana, as they formerly existed, an alien
could not inherit land from an ancestor not fully naturalized, but the
rule has been changed, and an alien may now inherit. Eldon v. Doe^
6 Blackf. (Ind.) 341 ; Murray v. Kelly, 27 Ind. 42. Aliens who
have declared their intention can hold lands in the territory of Mon.
tana Territory v. Lee, 2 Mont. 124.

Alienage of an ancestor is now no bar to a title by descent through
him in a majority of the States.

Although aliens may be under disability as to land, yet resident aliens
are usually permitted to inherit personal property. Greenheld v. Mor-
rison, 21 Iowa, 538 ; Polk v. Ralston, 2 Humph. 537.

§ 5. Personal disabilities. Under the laws of the United States
governing the registry of vessels, an alien cannot be master of an
American vessel. The Duhuqiie, 2 Abb. (U. S.) 20. Those laws also
provide that aliens who are here after a declaration of war between this
and their native country shall be liable to be removed by this govern-
ment but they will be allowed a reasonable time to remove their goods,
which time is in some cases fixed by treaty. U. S. Rev. Stats, of 1874,
p. 789.

Asa general rule, an alien cannot vote at a public election, but the
charters of municipal corporations sometimes permit resident aliens,
otherwise qualified, to vote for municipal ofiicers {Stewart v. Foster, 2
Binn. 120), and in many of the American States, aliens are permitted
to vote after making their declarations of intention to become citizens.
It seems that a member of a religious society or other private corpora-
tion may vote at a corporate election, although an alien, unless there is
something in the law under which it is organized expressly or impliedly
YoL. YI.— 59



466 ALIEN AND ALIENAGE.

exdudiii^j^ liiiii. Conimonwealth v. Woelper, 3 Ser<^. & R. 20 ; Matter
of Barker, Weiul. 501).

Nor is ail alien elii^ible to a jinblic oflice ; thougli it has been held
that, if ho bc'i'oiues fully naturalized before the coinnioncement of a
term for whieh lie has been elected, he may take and hold it. Waltlier
V. Eaholt, 30 Cal. 185 ; State ex rel. Off v. Siwth, 14 Wis. 497; Stats
ex rel. Schuet v. Murray, 28 id, 90; 9 Am. Rep. 489. Nor is he gener-
ally a competent juror, until he has become fully naturalized. Schvr
maker v. State, 5 Wis. 324 ; Byrne v. State, 12 id. 519 ; Gruhh v.
State, 14 id. 434 ; Borst v^ Becker, 6 Johns. 332. But the objection,
to avail, must be raised before verdict. Uollingsworth v. Duane, 4
Dall. (Penn.) 353; State y. Quarrell, 2 Bay (S. C), 150; Siller v.
Cooper, 4 Bibb, 90. Alienage is not, however, gbod ground of challenge
to a juror in the District of Columbia. Mima, Queen, v. Hepburn,
2 Cranch (C. C), 3.

An alien cannot gain a settlement under the pauper laws. Knox v.
Waldohoroagh, 3 Me. 455 ; Jefferson v. Litchfield, 1 id. 196. He
cannot by intermarriage with a female citizen obtain control of her
lands. Fitzgerald v. Garvin, Charlt. (Ga.) 255.

Although alienage of the vendee is not a sufficient ground for re-
scinding a contract for the sale of lands, at the suit of the vendor, yet,
it is sufficient to prevent a decree for specific performance in favor of
the vendee. Hephurny. Dunlop, 1 Wheat. 197; Orr v. Hodgson, 4
id. 453.

A contract with an alien, relative to personal property, is lawful and
valid ; but one with an alien enemy is unlawful, unless made under a
license of the government. A ransom bond, however, is valid. Craw-
ford V. The William Penn, 3 Wash. (C. C.) 484.

An alien residing in the State of New York is not within the pro-
vision of the statute which requires non-residents to give security for
costs in actions brought by them unless such residence is shown to be
merely temporary. Norton v. MacKie, 8 Hun (N. Y.), 520.

An alien is, in general, incompetent to devise real estate ; but an
alien friend does not labor under any disability in regard to executing
wills of personal estate. Alien enemies are incapable of making a
valid will even of personalty, unless by force of special license from
the national government to reside and transact business within our
jurisdiction during the continuance of hostilities. 1 Redf . on "Wills, 7.

§ 6. Ownership of personal property. An alien may acquire,
hold and transmit personal property, the same as a citizen ; and he may
take mortgage security for a debt. See Hughes v. Edwards, 9 Wheat.
489. As we have before seen, he may take such property by descent.



ALIEN AND ALIENAGE. 467

He may also take it by bequest; and if a provision in a will of real
estate, making liim a beneficiary, can be construed as effecting an equit-
able conversion, he can take under it as a bequest of personal estate.
Craig v. Leslie, 3 Wheat. 563.

§ 7. Capacity to sue. An alien, who holds land under a special
State law, may maintain a suit in respect thereto in a United States
court. Bonaparte v. Cainden, etc., It. B. Co., I Bald. (C. C.) 216.
The right of an alien to sue in a United States court is not lost by his
residing in one of the States. Breedlove v. Nicolet, 7 Pet. 413. An
alien enemy cannot sue in a court of the United States, nor can he
sustain a claim in a prize court. Mitmford\. Muniford, 1 Gallis. (C. C.)
366 ; Uie Emulous, id. 563.

In some of the States an alien friend is permitted to maintain an
action for the recovery of lands conveyed to him, altliough his title is
defeasible by the State, or for rent reserved in a lease thereof. Ellice
V. Winn, 12 Wend. 342 ; Bradstreet v. Supervisors, 13 id. 546 ;
Overing v Russell, 32 Barb. 263 ; Ford v. Harrington, 16 N. Y.
(2 Smith) 285 ; Rouche v. Williamson, 3 Ired. (N. C.) 141. But a
non-resident alien cannot generally maintain ejectment as heir at law.
Ennas v. Franklin, 2 Brev. (S. C.) 398 ; Siemssen v. Bofer^ 6 Cal.
250.

As an alien can acquire title to personal property, he can also maintain
suits for its recovery and protection ; and if he takes mortgage security
for a debt, he can foreclose the mortgage in equity. An alien friend
can bring here any personal action for injury to his person or property
which a citizen can. Taylor v. Carpenter, 2 Woodb. & M. 1 ; Coffeen
V. Brunton, 4 McLean, 516. And one alien may sue another in our
courts, on a contract made abroad, or for a tort committed abroad, if
the parties are within the jurisdiction. Roberts v. Knight, 7 Allen,
449 ; Deioitt v. Buchanan, 54 Barb. 31.

A citizen may sue an alien here, even during war between this coun-
try and his own, for the protection of His property or rights, whenever
the defendant can be reached by process. Master son v. Iloioard, 18
Wall. 99 ; DeJarnett v. DeGimrmlle, 56 Mo. 440. But an alien
enemy cannot sue in the hostile country during the war, unless he con-
tinues to reside there with the permission of the government, or upon
a contract sanctioned by the government. 1 Kent's Com. 67 ; Bell v.
Chapman, 10 Johns. 183 ; Clarice v. Moray, id. 69 ; Jackson v. Decker,
11 Johns. 418 ; Wells v. Williams, 1 Ld. Kaym. 282; Russell v. Skip-
with, 6 Binney, 241 ; Burnsides v. Matthews, 54 N. Y. (9 Sick.) 78.
But, if the right of action accrued before the alien became an enemy,
the remedy is merely suspended during the war. Samds v. iT. Y. L.



468 ALIEN AND ALIENAGE.

Ins. Co., 50 N. Y. (5 Sick.) 626 ; S. C, 10 Am. Rep. 535 ; liobinson
V. International Law Ass. Soc, 42 N. Y. (3 ILiiid) 54 ; S. C, 1 Am.
Hop. 490 ; Martine v. Same, 62 Barb. 181. The same rules apply to
ititizens of States at war with tlie UiiittHl States, as to foreign enemies.
Sanderson v. Monjan^ 31.> N. Y. (12 Till.) 231 ; BonneoAi v. Dlnsr
more, 23 How. (N. Y.) 397.

If tlie plaintiff became an enemy after judgment, the court will not,
on motion, stay or set aside the execution {Buckle// v. Li/tle, 10 Johns.
117) ; and if a writ of error is^pending at the time war is commenced,
the jud<;'nient may nevertheless be afhrnied. Oivens v. JJanney, 9
Cranch, 180. But if the alien plaintilf resides in a country at peace
with ours, the plea of alien enemy will not avail. Baby v. Dubois, 1
Blackf. (Ind.) 255.

§ 8. Liability to be sued. An alien found within the jurisdiction
of our courts is liable to be sued therein on his contracts wherever
made. Barrell v. Benjamin, 15 Mass. 354. This is believed to be
the general rule, though the contrary is held in some cases. See
Dmnoussay v. Delevlt, 3 Harr. & McH. (Md.) 151 ; Brinley v. Avery,
Kirby (Conn.), 25.

Even an alien enemy may be sued here. Buss v. Mitchell, 11 Fla.
80. And he may employ counsel to defend in such suit. McNair v.
Toler, 21 Minn. 175. And though sued as a non-resident, and beyond
reach of service of process by publication, because within the hostile
lines, he will be bound by the judgment. Dor sty v. Thonipson, 37
Md. 25.



ALTERATION OF INSTRUMENTS. 469



CHAPTER YII.

ALTERATION OF INSTRUMENTS.
ARTICLE I.

OF A1,TEKATI0N m GENERAL.

Section 1. Deflnition and nature. In general terms an alteration
of an instrument is something by wliich its meaning or language is
changed, either in a material, or in an immaterial particular. If what
is written upon or erased from the paper conta.'ning an instrument has
no tendency to produce this result, nor to mislead any person, it will
not be an alteration. Morrill v. Otis, 12 N. H, 466. An alteration
may be made by the agreement of the parties to the instrument ; or
by a party entitled under it without the consent of the other party ; or
by a stranger to the instrument. But in its strictness, the term " alter-
ation " is to be distinguished from the act of a stranger in changing the
form or language of the instrument which is called a spoliation.
Bridges v. Winters, 42 Miss. 135 ; S. C, 22 Am. Rep. 598. This dis-
tinction is not, however, always observed in practice.

It is a principle of universal application that the material alteration
of a written instrument renders it void. Angle v. North- Western
Mut. Ins. Co., 2 Otto, 330.

§ 2. Its general eifect. The general effect of a willful and material
alteration of a written instrument, made by one of the parties to it
after execution, and without the authority or consent of the other
party, is, to defeat any rights he would otherwise have under it
{Wright v. Wright, 2 Halst. [N. J.] 175 ; Tillou v. Clinton, etc., Mut.
Ins. Co., 7 Barb. 564 ; Burnham v. Ayer, 35 N. H. 351 ; Newill v.
Mayberry, 3 Leigh [Ya.], 250 ; Marcy v. Dunlap, 5 Lans. [N. Y,]
365 ; Davis v. Coleman, Y Ired. [N. C] L. 424) ; unless it be explained.
Williams v. Starr, 5 Wis. 534. And where an agreement is reduced
to writing, whether under seal or not, so as to merge the original
promise and the written agreement is so altered as to avoid it, the
party cannot resort to the original contract. 2fills v. Starr, 2 Bailey
(S. C), 359 ; Wheeloch v. Freeman, 13 Pick. 165 ; Smith v. Mace, 44
N. H. 553 ; Meyer v. Hunehe, 55 N. Y. (10 Sick.) 412.



470 ALTERATION OF INSTRUMENTS.

But an alteration wliieh docs not vary the meaning of an instru-
ment does not avoid it though made by the party claiming under it.
Nichols V. Johnson, 10 Conn. 192 ; Pcquawhet Bridge v. Matlies, 8
N. H. 139. The doctrine that any material alteration beneficial to the
part}' making the alteration will vitiate the instrument is said to be
founded on a presumption of fraud ; and the alteration must be such
as to effect some change in the meaning or legal operation of the
instrument. Ilunthujton v. F'uich, 3 Ohio St. 4-15. And see Moye v.
Ilerndon, 30 Miss. 110.

§ 3. Alteration before delivery. That the alteration of an instru-
ment made before delivery does not affect the validity of it, see
Wickes v. Caulk, 5 Ilarr. & J.(Md.) 36 ; liavisiesv. Alson, 5 Ala. 297.

So held of a bond. See Vownes v. Richardson, 5 B. & Aid. G74, 681.
But it is held that a material alteration of a note, made by one of the
promisors before its delivery without the knowledge of the other
promisor, makes the note void as against the other promisor, although
the alteration is made without the knowledge of the payee and without
fraudulent intent. Draper v. Wood, 112 Mass. 315; S. C, 17 Am.
Rep. 92. See yost, p. 485, Art. 6.

§ 4. Alteration by consent. An alteration of an instrmnent made
by the consent of parties does not invalidate the instrument {Camden
Bank v. Ball, 2 Green's [N. J.] L. 583 ; Smith v. Weld, 2 Penn. St. 54 ;
Hills V. Barnes, 11 N. H. 395 ; Collins v. Collins, 51 Miss. 311 ; S. C,
24 Am. Rep. 633, 639) ; and such consent may be implied from circum-
stances, custom, the nature of the alteration, etc. {Ogle v. Graham, ^
Penr. & W. [Penn.] 132 ; Bale v. Russ, 1 Me. 334) ; at least, where the
alteration is immaterial. See id.; Woodworth v. Bank of Ameinca, 19
Johns. 391. And it has been held that an alteration, even in a material
part, and after execution, may be made, if it is proved, or may be pre-
sumed to have been done by consent of all parties. WooUey v. Constant^
4 Johns. 54 ; Barrington v. Bank of Washington, 14 Serg. & R. (Penn.)
405; Richmond Manvf Co.\. Davis, 1 Blackf. (Ind.) 412; Speaker.
United States, 9 Cranch, 28. The parties must, however, be at that
time legally competent to consent. Moore v. Bickham, 4 Binn. (Penn.)
1. And it is held in Connecticut that a material alteration, evgn by
consent of parties, after execution and acknowledgment before a mag-
istrate, will be inoperative, without a re-acknowledgment {Coit v. Stark-
weather, 8 Conn. 289) ; though it is otherwise as respects an immaterial
alteration. Id. In Pennsylvania, not the smallest alteration, even by
consent, can be made after acknowledgment, without there be a re-ac-
knowledgment. Moore v. Bickham, 4 Binn. 1. In England, if the
alteration be made with the consent of all the parties to the instrument,



ALTEKATION OF INSTRUMENTS. 471

still, as it thereby becomes a new contract, the old stamp will^ot suffice
{Bowman v. Nicholl^ 5 T. R. 537) ; unless, indeed, the alteration was
mez-ely to correct a mistake, and so render the instrument what it was
originally intended to have been. Byroin v. Tliompson^ 11 Ad. & El.
31 ; Cariss v. TaUersall, 3 Scott (N. R.), 257 ; S. C, 2 M. & G. 890 ;
1 Sm. Lead. Cas. 957. An alteration of a note made with the assent
of a party with a view to its immediate discount, but upon the agree-
ment that the consent of another party to it, then absent, shall be sub-
sequently obtained, does not, such consent not having been obtained,
render the ■ note so negotiated invalid against the assenting party.
Stoddard v. Penniman, 113 Mass. 386.

§ 5. Filling blanks. It may be deemed as pretty well settled by
the authorities that where a party, intending to enter into an obligation,
signs the paper in blank, entirely, or as to any particular, there is an
implied authority to any holder to fill all blanks, at his discretion, in
general conformity to the character of the paper, without vitiating it.
Bank of Commonwealth v. McChord., 4 Dana (Ky.), 191 ; Page v.
Morrel, 3 Abb. Ct. App. (N. Y.) 433 ; S. C, 33 How. 244 ; 3 Keyes,
117 ;Sp{tlerv. James, 32 Ind. 202; S. C, 2 Am. Rep. 334; Ilardi/ v.
Norton, 66 Barb. 527 ; Yocum v. Smith, 63 111. 321 ; S. C, 14 Am.
Rep. 120; McGrath v. Clark, 56 N. Y. (U Sick.) 34; S. C, 15 Am.
Rep. 372. See Ilolmes v. Trumper, 22 Mich. 427; S. C, 7 Am. Rep.
661, 669, n. But where the character, or legal tenor and effect of the
instrument is changed, parties not consenting are discharged. Id.
Thus, where a person signs, as drawer, a form of a bill of exchange,
blank as to the names of the drawee and payee, the date, the amount,
and the place where payable, and delivers it to another, at the request
and for the accommodation of the latter, and it is afterward filled up as
a promissory note, without the knowledge or consent of such signer,
he is released from liability as maker or surety upon the note in the
hands of the person chargeable with such alteration. Luellen v. Hare,
32 Ind. 211. And the fact that a blank space has been left in a note
sufficient for the insertion of additional words therein without creating
suspicion, M'ill not alone, and as matter of law, authorize the holder to
insert additional words, after the execution and delivery of the note,
without the consent of the maker. Bruce v. Westcott, 3 Barb. 374.
Where a party to a negotiable instrument intrusts it to another for use
as such, with blanks not filled, it carries on its face an implied author-
ity to complete it by filling them, but not to vary or alter its material
terms by erasing what is wi'itten or printed as a part thereof, nor to
pervert its scope or meaning by filling the blanks with stipulations
repugnant to what was plainly and clearly expressed in the instrument.



472 ALTERATION OF INSTRUMENTS.

Afi(/le V. J^of'th- Wt'sieni Mat. Life Ins. Co., 2 Otto, 330. It is for
the jury to deterinine whether the instrument was deUvered as an
inconii)lote ]):ipcr, with blanks to be filled. Abbott v. Hose, 62 Me.
194 ; S. C, IG Am. Rep. 427.

So, an instrument required by law to be under seal, if executed in
blank as to the name of the grantee, mortgagee, obligee, covenantee, etc.,
as the case may be, is void ; and the mere delivery of such an instru-
ment does not authorize the party to whom it may be delivered, to fill
up the blank, although the delivery may have been made for a valuable
consideration. Smith v. }^elloivs, 9 Jones & Sp. (N. Y.) 36. And see
Chaxincey v. Arnold, 24 N. Y. (10 Smith) 330.

§ 6. Of the intent. It is held that an immaterial alteration of a
written instrument does not vitiate it, although made with a fraudulent
intent {Moye v, Ilenidoti, 30 Miss. 110 ; Robinson v. Phmnlx Ins.
Co., 25 Iowa, 430; Booth v. Powers, 56 N. Y. [11 Sick.] 22; Miller \.
Peed, 27 Penn. St. 246); while ^iinaterial alteration will invalidate the
instrument, though made without a fraudulent motive. Murray v. Gray-
ham, 29 Iowa, 520 ; Fay v. Smith, 1 Allen, 477. The material test as
to liability on an altered instrument is whether its identity remains. If
the alteration of a note, etc., be made fraudulently, or with an illegal
intent, or the original words cannot be certainly restored, or any party
has become interested in it, or affected by it, or related to it, since the
alteration, so that the alteration will do him wrong, the party making
the alteration must abide by it and its consequences. Kountz v. Ken-
nedy, 63 Penn. St. 187 ; S. C, 3 Am. Rep. 541. Otherwise he may
restore the note, etc., to its original form and force. Id.

§ 7. By a stranger. It was formerly held that a material alteration
made even by a stranger rendered the instrument void, notwithstanding
the original words might be restored. Pigotfs Case, 11 Co. Rep. 27.



Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 66 of 109)