that the note, after its delivery to the plaintiff, who could neither read nor write, had been changed in the following respects: The figures "$100" had been made to read "$136," or "$156;" the word "dollars" had been made to read "fifty," or "thirty," the word "six" being interpolated thereafter; and the word "on" changed to. "dollars," and another word "on" interpolated before the word "demand."

The plaintiff testified that he knew nothing about the erasures and changes above described, and neither made them himself, nor directly or indirectly authorized the same to be made; and the agent of the plaintiff, in whose possession the note was left for a time, testified the same as the plaintiff, as to her knowledge of, and relation to, said erasures and changes.

The defendant objected that the plaintiff was not entitled to recover upon the note, unless he first explained and accounted for said changes and erasures; and that there was a variance between the plaintiff's allegations and the proofs.

The plaintiff asked the judge to instruct the jury as follows: “If the jury believe that said $100 note was altered without the knowledge or consent of the plaintiff, and without his agency, directly or indirectly, it is not, in law, an alteration, but a mutilation or spoliation; and the note would be good for, and according to, its original tenor." The judge declined to give this instruction; but instructed the jury as follows: "The note of $100, appearing to be materially altered, is void, unless the plaintiff proves that it was altered by consent of the defendant, or proves the circumstances of its alteration as well as that he did not make or procure it. The alteration would not be sufficiently explained by proof that the plaintiff did not make, direct or procure it."

The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

COLBURN, J. The note declared on in this case was for $100, signed by the defendant, and payable to the plaintiff, or order. Upon the production of the note, it appeared to have been changed from a note for $100 to a note for $136, or $156, in the manner stated in the exceptions.

It was proved at the trial that this note was originally a valid note for $100, and it was not pretended that it had ever been changed with the knowledge or consent of the defendant. The note was not indorsed, and, so far as appears, had always been owned by the plaintiff, and in his possession or in that of his agent.

These changes, under the circumstances, rendered the note prima facie void, and the burden was upon the plaintiff to explain them. If the changes had been made by the plaintiff, or by his authority or consent, directly or indirectly, the note was absolutely void. Adams. v. Frye, 3 Metc. 103; Fay v. Smith, 1 Allen, 477, 79 Am. Dec. 752; 1 Greenl. Ev. § 564. But if the changes had been made by a stranger, without the knowledge or consent of the plaintiff, directly or in

directly, the note remained a valid note, according to its original tenor. Adams v. Frye, ubi supra; 1 Greenl. Ev. § 566.

If the plaintiff proved that the note had never rightfully, or to his knowledge, been in the possession of any one but himself and his agent, and that the alterations were not made by him or his agent, or with the knowledge or consent, directly or indirectly, of either of them, he was entitled to recover on the note as originally written, though he might not be able to prove the circumstances of its alteration; and there was evidence tending to show that these were the facts in this case.

We are of opinion that the judge erred in instructing the jury, as he apparently did, in effect, that proof of the state of facts above supposed would not entitle the plaintiff to recover. Of course, we express no opinion as to the credibility of the evidence at the trial, or the probability that such changes as were made in the note would have been made by a stranger. These are considerations for the jury.

If, as we infer from the exceptions, the tenor of the note as originally written was apparent upon inspection of the note, it was sufficient to declare upon it in the usual way; and, upon showing that the changes in the note were mere spoliations, there would be no variance. between the allegation and proof. Exceptions sustained.

JEFFREY et al. v. ROSENFELD.

(Supreme Judicial Court of Massachusetts, Middlesex, 1901. 179 Mass. 506, 61 N. E. 49.)

MORTON, J. This is a bill in equity to restrain the foreclosure of a mortgage, on the ground that, after the delivery of the mortgage and note, there was a material alteration of the note without the plaintiffs' assent. The nature of the alteration, or by whom it was made, is not set out, nor is it alleged that the alteration was fraudulent. There was a demurrer for want of equity, and on the grounds that the bill did not state a case that entitled the plaintiffs to relief, and that they had an auequate remedy at law. The demurrer was sustained, and the bill dismissed, and the plaintiffs appealed.

The defendant contends that the nature of the alleged alteration should have been specifically set forth. St. 1898, c. 533, § 125 (the negotiable instruments act), provides what alterations shall be deemed material, and it would seem, for that and other reasons, that, as matter of correct pleading, the bill should have described the alteration relied on, in order that the court might see whether, as matter of law, the alteration was a material alteration. But for the purposes of this case, we assume in favor of the plaintiffs, without deciding, that this defect, if relied on as a ground of demurrer, should have been particularly pointed out, and that it is not open to the defendant, when the

cause of demurrer assigned is the general one of a want of equity, or that the bill does not state a case which entitles the plaintiffs to relief. The question which has been chiefly argued relates to the effect of the alteration of the note upon the mortgage. The bill alleges that the mortgage was given to secure the payment of the note, but, for aught that appears, the transaction was the ordinary one of a loan of money secured by a note and mortgage. At any rate, there is nothing to 'show that the note and mortgage were not both given upon the same consideration, and to secure the same debt, and there is no allegation. that the debt has been paid or satisfied in any way. If the mortgage was given to secure the personal obligation created by the note, and nothing more, the allegations of the bill should have been more specific. There is no doubt that the effect of a material alteration of a note has been held to be different in some respects in England from what it has been held to be in this country. Thus it has been held there that a material alteration, even by a stranger, without the knowledge or assent of any of the parties to the note, will avoid it. Davidson v. Cooper, 11 Mees. & W. 778; Id., 13 Mees. & W. 343. And very likely i would be held under the bills of exchange act that the effect of such an alteration, by whomsoever made, would be to avoid the note as to all parties except those consenting to it and subsequent indorsers. Chalmers' Bills of Exchange (5th Ed.) 213, 214. But the law has been laid down differently in this commonwealth (Drum v. Drum, 133 Mass. 566); and, according to the weight of authority in this country, a material alteration of a note by a stranger, or a spoliation of it, as it is termed, will not avoid the note (Drum v. Drum, ubi supra; 2 Dan. Neg. Inst. [3d Ed.] § 1373a; 2 Pars. Notes & Bills [1st Ed.] 574; Norton, Bills & Notes [2d Ed.] 234, 235; 1 Ames, Cases on Bills & Notes, 449).

Whether, therefore, section 124 of the negotiable instruments act (St. 1898, c. 533), which is copied from section 64 of the bills of exchange act (St. 45 & 46 Vict. c. 61), should receive the same construction which that has received, or which it undoubtedly will receive, deserves serious consideration. The statute enacted in this state is the same, in substance and effect, as that adopted by the conference of commissioners on uniformity of laws which met at Detroit in 1895, and has already been enacted in 15 states (14 Harvard Law Rev. 241, Dec. 1900, by Prof. Ames); and although it is largely copied from the Eng. lish act, and is in many of its provisions an almost, if not quite, verbatim copy of that act, it would seem not unreasonable to suppose that it was the intention of the framers of the American act that section 124 should be construed according to the law of this country, rather than that of England. But it is not necessary to pass upon that question now. In England, as in this country, except when an alteration is fraudulent, it does not cancel or extinguish the debt for which the note was given. Sutton v. Toomer, 7 Barn. & C. 416; Atkinson v. Hawdon, 2 Adol. & E. 628; Byles on Bills (4th Am. Ed.) 257; 2 Am.

& Eng. Encyc. of Law (2d Ed.) 200, 202; 2 Dan. Neg. Inst. (3d Ed.) §§ 1410a, 1411; 2 Pars. Notes & Bills (1st Ed.) 571, 572.

And the cases are numerous in which it has been held that a party could recover upon the original consideration, notwithstanding there had been a material alteration of the written contract. Lee v. Butler, 167 Mass. 426, 46 N. E. 52, 57 Am. St. Rep. 466; Nickerson v. Swett, 135 Mass. 514; Adams v. Frye, 3 Metc. 103; Smith v. Dunham, 8 Pick. 246; Milbery v. Storer, 75 Me. 69, 46 Am. Rep. 361; Croswell v. Labree, 81 Me. 44, 16 Atl. 331, 10 Am. St. Rep. 238; Keene v. Weeks, 19 R. I. 309, 33 Atl. 446.

Following out this principle, it has been held in many cases that the material alteration of a mortgage note, if not fraudulent, will not avoid the mortgage. Elliott v. Blair, 47 Ill. 342; Vogle v. Ripper, 34 Ill. 100, S5 Am. Dec. 298; Clough v. Seay, 49 Iowa, 111; Gillette v. Smith, 18 Hun, 10; Cheek v. Nall, 112 N. C. 370, 17 S. E. 80; Heath v. Blake, 28 S. C. 406, 416, 5 S. E. 842; 2 Am. & Eng. Encyc. of Law (2d Ed.) 202; 2 Jones, Mortgages (3d Ed.) § 1215.

It is true that in this state it is held, contrary to what is the law in most of the states and in England, that a negotiable note is prima facie payment of the debt for which it is given. But the rule is not an unqualified one. Curtis v. Hubbard, 9 Metc. 322. Thus when a note is avoided by the maker for illegality or fraud, the promisor may recover the original consideration in an action for money lent or money had and received (Bank v. Tyndale, 176 Mass. 547, 57 N. E. 1022, 51 L. R. A. 447; Walker v. Mayo, 143 Mass. 42, 8 N. E. 873); and the presumption of payment is rebutted when the effect will be to deprive a party of security which he has taken for the payment of the debt for which the note was given (Curtis v. Hubbard, ubi supra; Davis v. Parsons, 157 Mass. 584, 32 N. E. 1117).

This being the state of the law at the time of the passage of the negotiable instruments act, we should hesitate to say that the effect of section 124 is not only to avoid the note in case of a material alteration, but to cancel the debt for which it was given, and to deprive a party of the benefit of any security that he may have taken.

But it is not necessary to go so far. This is a suit on the equity side of the court. As already observed, there is no allegation of fraud in the bill, or of fault on the part of the mortgagee. For aught that appears, the alteration in the note may have been made by a stranger, or may have been innocently made by the holder, for the purpose of rectifying what he supposed to be a mistake, occurring under such circumstances that he would be entitled in equity to a reformation of the note and mortgage. There is no allegation that the note or the debt which the mortgage was given to secure has been paid, and there is no tender of payment.

The mortgage is a separate instrument from the note. At law and in equity the holder can enforce his remedy upon the mortgage independently of or concurrently with that on the note, and in some cases,

at least, where he had lost his remedy upon the note. Thayer v. Mann, 19 Pick. 535; 2 Jones, Mortgages (3d Ed.) § 1215 et seq. Under the circumstances, there being no allegation of payment and no offer of payment in the bill, we think that the bill does not state a case which entitles the plaintiff to relief, and that the demurrer was rightly sustained, and the bill rightly dismissed.

Decree affirmed.

NATIONAL EXCH. BANK OF ALBANY v. LESTER.

(Court of Appeals of New York, 1909. 194 N. Y. 461, 87 N. E. 779, 21 L. R. A. (N. S.) 402.)

Appeal from the judgment of the Appellate Division of the Supreme Court in the Third Judicial Department, entered May 16, 1907, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.

The defendant was sued as the accommodation indorser upon a note for $375 made by one Frank L. Fancher and acquired by the plaintiff bank before maturity in the regular course of its business. The defense was that the note as originally made and indorsed was for $75 only; that the maker thereafter, without the knowledge or consent of the indorser, altered the note by inserting in the body thereof the words "three hundred" immediately in front of the words "seventyfive" and the figure "3" immediately in front of the figures "75," thereby making the instrument apparently a note for $375 instead of $75; and that the maker thereafter caused the note as thus altered to be discounted by the plaintiff bank. The answer prayed judgment that the complaint be dismissed except as to the amount of the note before alteration, together with interest and protest fees, to wit, $78.66. The defendant also served an offer to allow the plaintiff to take judgment for that amount.

Upon the trial the court charged the jury that, if the note indorsed by the defendant was in fact a note for $375 on its face, the plaintiff was entitled to recover that amount and interest. The trial judge further charged the jury that if they found that there were spaces upon the note "so carelessly and negligently left by this indorser, Mr. Lester, that a person having custody of the note might run in a figure 3 and the words 'three hundred' so as not to occasion in the mind of the indorser [evidently meaning indorsee] any inquiry into its validity," they might find that the indorser conducted himself carelessly and negligently in the premises, and thus invited the liability which the face of the note called for when presented to the bank.

The defendant duly excepted to that part of the charge to the effect that, if the defendant was negligent in leaving blank spaces, the jury must find a verdict for the plaintiff for the full amount of the note as it stood. The court then reiterated the proposition, saying that,