Master and Others against Miller
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 1791 |
| Date | 01 July 1791 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 1042
IN THE COURT OF KING'S BENCH
3 Esp. 57, 246. 4 East, 203. 1 Camp. 72. 15 East, 29.
S. C. affirmed 5 T. R. 367.
masteb and others against miller. Friday, July 1st, 1791. An alteration of the date of a bill of exchange, after acceptance, whereby the payment would be accelerated, avoids the instrument; and no action can be afterwards brought upon it, even by an innocent holder for a valuable consideration. [3 Esp. 57, 246. 4 East, 203. 1 Camp. 72. 15 East, 29.] [S. C. affirmed 5 T. E. 367.] The first count in this declaration was in the usual form, by the indorsees of a bill of exchange against the acceptor ; it stated that Peel and Co. on the 20th of March 1788, drew a bill for 9741. 10s. on the defendant, payable three months after date to Wilkinson and Cooke, who indorsed to the plaintiffs. The second count stated the bill to have been drawn on the 26th of March. There were also four other counts : for money paid, laid out, and expended ; money lent and advanced ; money had and received ; and on an account stated. The defendant pleaded the general issue; on the trial of which a special verdict was found. It stated, that Peel and Co. on the 26th March 1788, drew their bill on the defendant, payable 3 months after date to Wilkinson and Cooke, for 9741. 10s. " which said bill of exchange, made by the said Peel and Co. as the same hath been altered, accepted, and written upon, as hereafter mentioned, is now produced, and read in evidence to the said jurors, and is now expressed in the [321] words and figures following; to wit, 'June 23d, 9741. 10s. Manchester, March 20, 1788. Three months after date pay to the order of Messrs. Wilkinson and Cooke, 9741. 10s. received, as advised, Peel, Yates, and Co. To Mr. Cha. Miller, C.M. 23d June, 1788.'" That Peel and Co. delivered the said bill to Wilkinson and Cooke, which the defendant after- (c) Cro. Jac. 665. (a) Vid. 2 Ld. Eaym. 804. Noy, 93. Latch, 206, and Rider v. Smith, ante, 3 vol. 766. 4-E.R.m MASTER V. MILLER 1043 wardsr and before the alteration of the bill hereinafter mentioned, accepted. That Wilkinson and Cooke afterwards indorsed the said bill to the plaintiffs, for a valuable consideration before that time given, and paid by them to Wilkinson and Cooke for the same. That the said bill of exchange at the time of making thereof, and at the time of the acceptance, and when it came to the hands of Wilkinson and Cooke as aforesaid, bore date on the 26th day of March 1788, the day of making the same; and that after it so came to and whilst it remained in the hands of Wilkinson and Cooke, the said date of the said bill, without the authority or privity of defendant, was altered by some person or persons to the jurora aforesaid unknown, from the 26th day of March 1788, to the 20th day of March 1788. That the words "June 23d," at the top of the bill, were there inserted to mark that it would become due and payable on the 23d of June next after the date ; and that the alteration hereinbefore mentioned, and the blot upon the date of the bill of exchange, now produced and read in evidence, were on the bill of exchange when it was carried to and came into the hands and possession of the plaintiffs. That the bill of exchange was on the 23d of June, and also on the 28th of June 1788, presented to the defendant for payment; on each of which days respectively he refused to pay. The verdict also stated that the bill so produced to the jury and read in evidence was the same bill upon which the plaintiffs declared, &c. This case was argued in Hilary term last by Wood for the plaintiffs, and Mingay for the defendant: and again on this day by Chambre for the plaintiffs, and Erakine for the defendant. For the plaintiffs it was contended, that they were entitled, notwithstanding the alteration in the bill of exchange, to recover according to the truth of the case, which is set forth in the second count of the declaration, namely, upon a bill dated the 26th March ; which the special verdict finds was in point of fact accepted by the defendant. More especially as it is clear that the plaintiffs are holders for a valuable consideration, [322] and had no concern whatever in the fraud that was meditated, supposing any such appeared. The only ground of objection which can be suggested is upon the rule of law relative to deeds, by which they are absolutely avoided, if altered even by a stranger in any material part, and upon a supposed analogy between those instruments and bills of exchange; but upon investigating the grounds on which the rule stands as applied to deeds, it will be found altogether inapplicable to bills : and, if that be shewn, the objection founded on the supposed analogy between them must fall with it. The general rule respecting deeds is laid down in Pigot's case (a), where most of the authorities are collected ; from thence it appears, that if a deed be altered in a material point, even by a stranger, without the privity of the obligee, it is thereby avoided ; and if the alteration be made by the obligee, or with his privity, even in an immaterial part, it will also avoid the deed. Now that is confined merely to the case of deeds, and does not in the terms or principle of it apply to any other instruments not executed with the same solemnity. There are many forms requisite to the validity of a deed, which were originally of great importance to mark the solemnity and notoriety of the transaction : and on that account the grantees always were, and still are, entitled to many privileges over the holders of other instruments. It was therefore reasonable enough that the party in whose possession it was lodged, should, on account of its superior authenticity, be bound to preserve it entire with the strictest attention, and at the peril of losing the benefit of it in the case of any material alteration even by a stranger; and that he is the better enabled to do from the nature of tte instrument itself, which not being of a negotiable nature, is not likely to meet with any mutilation, unless through the fraud or negligence of the owner; whereas bills of exchange are negotiable instruments, and are perpetually liable to accidents in the course of changing hands, from the inadvertence of those by whom they are negotiated, without any possibility of their being discovered by innocent indorsees, who are ignorant of the form in which they were originally drawn or accepted ; and the present is a strong instance of that; for the plaintiffs cannot be said to be guilty of negligence in not inquiring how the blot came on the bill, which mere accident might have occasioned. That the same reasons, upon which the decisions of the Courts [323] upon deeds have been grounded, will not support such judgments upon bills, will best appear by referring to the authorities themselves. When a deed is pleaded, (a) 11 Co. 27. 1044 MASTER V. MILLER 4 T. R. 824. there must be a profert in Curiam, unless as in Bead v. Brookman (a)1, it be lost or destroyed by accident, which must however be stated in the pleadings. The reason of which is, that anciently the deed was actually brought into Court for the purpose of inspection ; and if, as is said in 10 Co. 92 b. the Judges found that it had been rased or interlined in any material part, they adjudged it to be void. Now as that was the reason why a deed was required to be pleaded with a profert, and as it never was necessary to make a profert of a bill of exchange in pleading, it furnishes a strong argument that the reason applied solely to the ease of deeds. So deeds, in which were erasures, were held void, because they appeared on the face of them to be suspicious. 13 Vin. Abr. tit. Faits, 37, 38. Bro. Abr. Faits, pi. 11, referring to 44 Ed. 3, 42. Nor could the supposition of fraud have been the ground on which that rule was founded with respect to deeds; for in Moor. 35, pi. 116, a deed which had been rased was held void, although the party himself who made it had made the erasure; which was permitting a party to avail himself of his own fraud : but it is impossible to contend that the rule can be carried to the same extent as to bills; nor is it denied but that if the blot here had been made by the acceptor himself, he would still have been bound. Iti Keilw. 162, it is said that if A. be bound to B. in 201. and B. rase out 101. all the bond is void, although it is for the advantage of the obligor; and even where an alteration in a deed was made by the consent of both the parties, still it was held to avoid it. 2 Eol. Abr. 29, letter U, pi. 5. [Lord Kenyon observed that there had been decisions to the contrary since.] Fraud could not be the principle on which those cases were determined; whereas it is the only principle on which the rule contended for can be held to extend to bills of exchange, but which is rebutted in the present case by the facts found in the special verdict. According to the same strictness, where a mere mistake was corrected in a deed, and not known by whom, it was held to avoid it. 2 Eol. Abr. 29, pi. 6; and it does not abate the force of the argument that the law is relaxed in these respects, even as to deeds, for the question still remains, whether at any time bills of exchange were construed with the same rigour as deeds ? The principle [324] upon which all these cases relative to deeds were founded was that nothing could work any alteration in a deed, except another deed of equal authenticity; and as the party who had possession of the deed was bound to keep it securely, it might well be presumed that any ^material alteration even by a stranger was with his connivance, or at least through his culpable neglect. In many of the cases upon the alteration of deeds, the form of the issue has weighed with the Court; as in 1 Eol. Eep. 40 [which is also cited in Pigot's case, 11 Co. 27] and Michael against Scockwith, Cro. El. 120, in both which cases the...
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