the one side against that on the other, in my apprehension it would throw too great a burden on persons taking bills of exchange to require proof of an indorsee that the person from whom he received the bill was the real payee. Such proof has never yet been required of an indorsee in such an action: and therefore I think that, as there was no fraud, or want of due diligence on the part of the plaintiff, he is entitled to recover; however, I give this opinion with some diffidence, as my brothers have intimated that they are of a different opinion.

ASHHURST, J., said, "This is a case of considerable importance; and I think that we ought to grant a new trial, that the parties may have an opportunity of putting the question on the record. The present inclination of my opinion is with the defendant. In order to derive a legal title to a bill of exchange, it is necessary to prove the hand-writing of the payee; and therefore though the bill may come by mistake into the hands of another person, though of the same name with the payee, yet his indorsement will not confer a title. Such an indorsement, if made with the knowledge that he is not the person to whom the bill was made payable, is in my opinion a forgery; and no title can be derived through the medium of a fraud or forgery. This is distinguishable from the case of Miller v. Race; for there the note was payable to bearer. In such cases the bearer, who purchases for a valuable consideration, and without notice of any fraud, is entitled to receive the contents of the bill; and payment to him is a discharge to the drawer. But in this case the bill was drawn payable to H. Davis, or order; and though the name of H. Davis was indorsed on the bill, yet it was incumbent on the plaintiff, who claims through the payee, to be satisfied that that was the indorsement of the real payee.

BULLER, J., said, "As the bill in this case is of great value, the parties may put this question in a mode to be decided by the dernier resort. As at present advised, I entertain the same opinion as my Brother Ashhurst. If we were to inquire whether any laches were to be imputed to the plaintiff or the drawer, I rather think the plaintiff is more in fault than any other person, in advancing his money to H. Davis, who was a total stranger to him. But, without going into any such inquiry, I

am of opinion that it is incumbent on a plaintiff, who sues on a bill of exchange, to prove the indorsement of the person to whom it is really payable. The general form of the declaration shows that it is so; for that is that, 'the said A. B. to whom, or to whose order, the payment of the said sum of money mentioned in the said bill was to be made, afterwards, etc., indorsed the said bill, his own proper hand-writing being thereto subscribed.' Now here it is clear that the indorsement was not made by the same H. Davis to whom the bill was made payable; and no indorsement by any other person will give any title whatever. Then, is there any thing in this case that estops the defendant from saying that the person who indorsed to him (plaintiff) was not the real payee? Now the act of that person who indorsed, and who in so doing was guilty of a forgery, cannot prevent an innocent person from showing the truth.

"Then it was argued that Christian was guilty of negligence, in not describing more particularly the payee; but I know of no authority which requires that to be done. This bill was drawn in the common form, payable to H. Davis or order;' and the drawer could not foresee that it would get into the possession of any other H. Davis. If any other stranger had received this bill, and indorsed it over to the plaintiff, it is not pretended that such indorsement would have conveyed any title to the bill, and it cannot make any difference whether such stranger bear the same name with the real payee or not; for no person can give title to a bill but he to whom it is made payable. Independently of these reasons, I think that convenience requires that the determination should be in favor of the defendant. I have no difficulty in saying this H. Davis, knowing that the bill was not intended for him, was guilty of a forgery; for the circumstance of his bearing the same name with the payee cannot vary this case, since he was not the same person. Then if the plaintiff cannot recover on this bill, he will be induced to prosecute the forger; and that would be the case even if it had passed through several hands, because each indorser would trace it up to the person from whom he received it, and at last it would come to him who had been guilty of the forgery; whereas if the plaintiff succeed in this

action, he will have no inducement to prosecute for the forgery: the drawer, on whom the loss would in that case fall, might have no means of discovering the person who committed the forgery, and thus he would probably escape punishment. As far, therefore, as convenience can have any effect, it weighs strongly with me to receive the evidence. But at all events the plaintiff cannot recover, since he derives his title under a forgery."

GROSE, J., said, "I am of opinion that it was competent to the defendant to show in evidence that the person, who indorsed to the plaintiff, was not the person named as the payee in this bill of exchange; and I form that opinion as well on the substance of the transaction as on the form of pleading in such cases. A bill of exchange is only a transfer of a chose in action according to the custom of merchants; it is an authority to one person to pay to another the sum which is due to the first, and it is generally directed to be paid to the payee or his order. When the person, on whom it is drawn, accepts, he only engages by the terms of his acceptance to pay the contents of the bill to the person named in it, or to his order. The general form of the declaration, which is to be found in some of the old entries, also agrees with this doctrine, and points out what the law is.

"I observe indeed that this declaration is not drawn in the usual form, for the words 'to whom or to whose order' are omitted; but still it is that the said H. Davis, that is the same H. Davis who is mentioned in the former part of the declaration as the payee, indorsed to the plaintiff. It clearly, therefore, appears that as no person can demand payment of a bill of exchange but the payee, or the person authorized by him, the acceptor only undertakes to pay to them, and cannot be compelled to pay to any other person. If he pay the amount of the bill to any other person, he pays it in his own wrong, and such payment does not discharge his debt to the drawer. If this decision will prove a clog on the circulation of bills of exchange, I think it will be less detrimental to the public, than permitting persons to recover through the medium of a forgery. And that this was a forgery cannot be doubted, if we consider the definition of it; which is, the false making of any instrument, indorsement,

etc., with intent to defraud. (Vid. 2 Geo. 2 c., 25 S. 1.) It makes no difference whether the person making this false indorsement was or was not of the same name with the payee, since he added the signature of H. Davis, with a view to defraud, and knowing that he was not the person for whom the bill was intended. I agree also with my Brother Buller, that this decision will be more convenient to the public; because then the plaintiff will prosecute the person, who indorsed to him, for the forgery. For these reasons I am of opinion that, as this bill of exchange was only payable to the payee or his order, it was competent to the defendant, the acceptor, to inquire whether the person under whom the plaintiff claims, was or was not the payee." Rule absolute.

HARSH ET AL. v. KLEPPER.

28 Ohio St. 200. 1876.

WRIGHT, J. This was an action upon a promissory note, dated April 15, 1865, at one year, which Harsh had signed as surety for the other makers, John H. Tressell and L. R. Tressell.

The defense of Harsh was: First, that after he had signed the note and it had been delivered, it was altered in this, that the rate of interest was changed from six to seven per cent. It was claimed and the jury found that the alteration was made by John H. Tressell, one of the principal makers, with the consent or by the direction of plaintiff, without intent to injure or defraud Harsh, but without his knowledge or consent.

It is claimed that this is a material alteration, and such as discharges Harsh, the surety.

There was a further defense, to the effect that, after the note became due, the plaintiff agreed with the principals to extend the time of payment for two years, without the knowledge or consent of the surety, and therefore he claims to be discharged.

As the decision does not rest upon this second defense, it is merely mentioned without further discussion.

The issue upon the first defense, of material alteration, having been made, evidence was given tending to show that fact.

Whereupon said Philip Harsh asked the Court to charge the jury that if they should find that said note had been altered as above stated, by changing the rate per cent. from "six" to "seven," at the request of the said plaintiff, and without the knowledge or consent of said surety, that then the said surety was released from his liability on said note.

This instruction the Court refused, but the Court did charge the jury that "the alteration of the note sued on, at the time of or soon after its maturity, by and at the original suggestion of John H. Tressell, one of the makers and principals thereof, by erasing the word 'six' in said note as originally written, and writing in its stead the word 'seven,' so as to make the note read 'seven per cent. interest from date,' instead of 'six per cent. interest from date,' although such alteration was actually made in the presence of and with the consent and by the direction of the said plaintiff, payee and owner of said note, and without the knowledge or consent of said surety, Harsh, would not prevent the plaintiff from recovery on said note against said surety, Harsh, unless the plaintiff at the time of giving such consent and direction, in fact, designed and intended thereby to injure and defraud the said Harsh. If such consent or direction to make such alteration was given by said plaintiff, and he at the time, in fact, intended thereby to injure and defraud the said Harsh, you should find a verdict for the said Harsh."

The question then is, is a change in the rate of interest, made by the principals with the consent of the holder and owner, but without the knowledge or consent of the surety, a material alteration and such as will avoid the note, as against the surety, though no fraudulent intent in such alteration appear.

The question appears to be well settled upon authority.

In the case of Wallace & Park v. Jewell, 21 Ohio St. 163, the name of another person as maker was added to the note after its delivery, and this was held to be such material alteration as to vitiate the paper against the other makers. Says WHITE, J. (p. 174), "Such an addition gives a different legal character to the instrument. The defendants might, by the altered condition of the note now in question, have been subjected to change of jurisdiction in the event of any litigation arising in relation to it between the parties."