sions.70 Young v. Grote, though regarded for a number of years as overruled in England,"1 has now been approved by the House of Lords, so far as to hold that the customer of a bank must take reasonable precautions against alterations; 72 and it is to be hoped that this decision may influence courts in the United States which were previously disposed to a contrary view. Of course, it is only when spaces are left in such a way that the obligor must be regarded as careless in view of existing mercantile usage that the doctrine of Young v. Grote is applicable." To the argument commonly made that the fraud or crime of the person raising the check is the proximate cause of the injury, it has been well said: "Fraud and crime are facts in this world which can be foreseen and guarded against just like other facts. They are occasional and violent, but so are washouts and the escape of high-tension currents. Under some circumstances intentional unlawful acts are events which

103; Helwege v. Hibernia Nat. Bank, 28 La. Ann. 520; First Bank v. Webster, 121 Mich. 149, 79 N. W. 1068; Trigg V. Taylor, 27 Mo. 245, 72 Am. Dec. 263; Scotland County Bank v. O'Connel, 23 Mo. App. 165; Timbel v. Garfield Nat. Bank, 121 N. Y. App. D. 870, 106 N. Y. S. 497. [But see National Exchange Bank v. Lester, 194 N. Y. 461, 87 N. E. 779, 21 L. R. A. (N. S.) 402.] Humphrey v. Herrick, 72 Neb. 878, 101 N. W. 1016, 102 N. W. 1010; Garrard v. Hadden, 67 Pa. 82, 5 Am. Rep. 412; Zimmerman v. Rote, 75 Pa. 188; Leas v. Walls, 101 Pa. 57, 47 Am. Rep. 699;Snyder v. Corn Exchange Nat. Bank, 221 Pa. 599, 610, 70 Atl. 876; Johnston Harvester Co. v. McLean, 57 Wis. 258, 15 N. W. 177, 46 Am. Rep. 39.

70 Exchange Nat. Bank v. Bank of Little Rock, 58 Fed. 140, 7 C. C. A. 111; Fordyce v. Kosminski, 49 Ark. 40, 3 S. W. 892, 4 Am. St. Rep. 18; Walsh v. Hunt, 120 Cal. 46, 52 Pac. 115, 39 L. R. A. 697; Cronkhite v. Nebeker, 81 Ind. 319, 42 Am. Rep. 127; De Pauw v. Bank of Salem, 126 Ind. 553, 25 N. E. 705, 10 L. R. A. 46; Knox

ville Bank v. Clarke, 51 Ia. 264, 1 N. W. 491, 33 Am. Rep. 129; First Bank v. Zeims, 93 Ia. 140, 61 N. W. 483; Commercial Bank v. Arden, 177 Ky. 520, 197 S. W. 951, L. R. A. 1918 B. 320; Burrows v. Klunk, 70 Md. 451, 17 Atl. 378; Greenfield Bank v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; Burson v. Huntington, 21 Mich. 415, 4 Am. Rep. 497; Simmons v. Atkinson, 69 Miss. 862, 12 S. E. 263, 23 L. R. A. 599; Goodman v. Eastman, 4 N. H. 455; Worrall v. Gheen, 39 Pa. 388; Searles v. Seipp, 6 S. Dak. 472, 61 N. W. 804.

71 Scholfield v. Londesborough, [1895] 1 Q. B. 536, [1896] A. C. 514; Colonial Bank v. Marshall, [1906] A. C. 559; Macmillan v. London Joint Stock Bank, [1917] 1 K. B. 363, 2 K. B. 439 (reversed in [1918] A. C. 776).

72 London Joint Stock Bank V. Macmillan, [1918] A. C. 776.

73 See cases cited, supra, n. 69, also Harvey v. Smith, 55 Ill. 224; Derr v. Keaough, 96 Ia. 397, 65 N. W. 339; Bank of Billings v. Wade, 73 Mo. App. 558; Leas v. Walls, 101 Pa. 57, 47 Am. Rep. 699.

the average reasonable man would take care to avoid because of the injury threatened to others clearly within range. The criminal character of these acts then becomes immaterial for purposes of the law of negligence. There is a duty not to cause injury in this way any more than by non-human methods."74 There is nothing in the Uniform Negotiable Instruments Law which should control the question.75

Most of the decisions relate to makers of notes or drawers of checks, and it is obvious that there is at least a difference in the degree of negligence of one who indorses a carelessly drawn instrument and that of one who makes it; but in Louisiana an indorser 76 and a certifying bank " have been held liable for putting their names on carelessly drawn instruments.

77

On the other hand, some courts which would deny any more general duty owing by those who make negotiable instruments would recognize that a depositor must exercise reasonable care in his dealings with his bank and that, therefore, a bank which pays a depositor's raised or altered check can charge the payment to him if his negligence facilitated or contributed to the fraud.78 The rule of Young v. Grote is not applicable to instruments other than negotiable paper.79

74 31 Harv. L. Rev. 783.

75 The general provision of Sec. 124 that unauthorized alteration avoids a negotiable instrument cannot be held to include an alteration for which the maker is the responsible cause, though he has not authorized it. See 31 Harv. L. Rev. 779. In Commercial Bank v. Arden, 177 Ky. 520, 197 S. W. 951, L. R. A. 1918 B. 320, however, the Kentucky Court of Appeals held that the statute precluded a bank from charging its customer with the amount of a raised check, even though negligence of the drawer in leaving spaces facilitated the fraud. In Snyder v. Corn Exchange Nat. Bank, 221 Pa. 599, 610, 70 Atl. 876, the court quoted

79 Lehman v. Central Co., 12 Fed. 595; Cronkhite v. Nebeker, 81 Ind. 319, 42 Am. Rep. 127; Smith v. Holzhauer, 67 N. J. L. 202, 50 Atl. 683;

with approval language from a previous decision to the effect that carelessly drawing a check would render the drawer liable. The Negotiable Instrument Law, though in force, was not referred to in this connection.

76 Isnard v. Torres, 10 La. Ann. 103. A surety was similarly held liable in Hackett v. First Nat. Bank, 114 Ky. 193, 70 S. W. 664. A contrary decision as to an indorser is Burrows v. Klunk, 70 Md. 451, 17 Atl. 378, 14 Am. St. Rep. 371, 3 L. R. A. 576.

77 Helwege v. Hibernia Nat. Bank, 28 La. Ann. 520.

78 See London Joint Stock Bank v. Macmillan, [1918] A. C. 776; Trust Company of America v. Conklin, 65

Searles v. Seipp, 6 S. Dak. 472, 61 N.
W. 804. See also Solon v. Williams-
burgh Bank, 114 N. Y. 122, 136, 21 N.
E. 168.

§ 1910. Formerly debt died with the writing-reason for the

rule.

While the doctrine of alteration was applied only to obligations under seal, there was no question that if the validity of the document was destroyed by alteration, the debt represented by the document was equally destroyed, and in no form of action could the holder get relief. But with the extension of the doctrine of alteration to writings which are only evidence, and perhaps not the sole evidence, of the obligation, the technical reason for regarding the obligation as totally destroyed does not hold good; for the existence of a simple contract obligation is not in theory dependent on the evidence by which it is proved. If, therefore, in such a case the obligee is held to lose all rights, even though it would be possible to prove the obligation by legal evidence, it is because the policy requiring that the purity of written evidence shall be maintained demands the imposition of a severe penalty on those who tamper with such evidence.

Whether the rule against alteration is wider in its effect than a rule of evidence, forbidding the use of writings materially and wrongfully altered, is well illustrated by the case of a contract executed in duplicate, one part of which is thereafter fraudulently and materially altered. If the requirement of the law is merely that the altered writing shall not be given in evidence, the fraudulent party may still prove his right by the unaltered part, for each part is an original. But if the fact that he has fraudulently altered a writing which embodies the contract is, as matter of substantive law, a defence there can be no recovery.su

N. Y. Misc. 1, 119 N. Y. S. 367; National Bank v. Nolting, 94 Va. 263, 26 S. E. 826. Illustrations of the depositor's duty where the negligence in question was not careless drawing of a check may be found in Leather Manufacturers' Nat. Bank v. Morgan, 117 U. S. 96, 6 S. Ct. 657, 29 L. Ed. 811; Dana v. National Bank, 132 Mass. 156; Weisberger v. Barberton, 84 Ohio St. 21, 95 N. E. 379.

80 1 Greenl. Ev. (16th ed.), § 563.

80

800 The former view is supported by two decisions in regard to duplicate leases. Lewis v. Payn, 8 Cow. 71, 18 Am. Dec. 427; Jones v. Hoard, 59 Ark. 42, 26 S. W. 193, 43 Am. St. Rep. 17. Since a lease is primarily a conveyance, these cases may perhaps be distinguished from the case supposed. But Jones v. Hoard was followed in the case of an executory contract in Barkley v. Atlantic Coast Realty Co., 170 N. C. 481, 87 S. E. 219. Certainly

§ 1911. Recovery on original debt allowed in the United States where alteration not fraudulent.

82 See supra, § 1893.

In most of the cases upon the point the altered writing in question was a bill of exchange or promissory note, and it has been held in England that as between the original parties the alteration does not extinguish the liability on account of which the instrument was given.81 In the United States the distinction has been taken between an alteration made fraudulently and an alteration not made fraudulently. In the latter case, as has been seen, the alteration in many jurisdictions will not bar recovery on the instrument itself; 82 but where such recovery is barred, relief is granted by allowing recovery on the original debt or consideration for which the instrument was given.83 the conclusion, as applied to executory contracts, cannot be regarded as free from doubt. An affirmative plea alleging alteration of the contract would, it seems, set up a good defence and would be supported by proof of the facts. Chitty, Pleading (16th Am. ed.), 299; infra, § 1915; and the alteration of one copy was held fatal to recovery in Koons v. St. Louis Car Co., 203 Mo. 227, 101 S. W. 49. On the other hand, Rev. L. Okl. (1910), § 991 provides: "Where a contract is executed in duplicate an alteration or destruction of one copy while the other exists, is not within the provisions of the last section" (which provides that intentional material alteration extinguishes executory obligations in favor of one guilty thereof). See Magnolia Petroleum Co. v. Saylor (Okl.), 180 Pac. 861.

81 Atkinson v. Hawdon, 2 A. & E. 628; Sloman v. Cox, 1 C. M. & R. 471. See also Hall v. Fuller, 5 B. & C. 750.

But there could be no recovery against a party secondarily liable on the instrument, for the consideration received by him, since the alteration has deprived him of any right to recover over against prior parties to the instrument. Alderson v. Langdale, 3 B. & Ad. 660.

83 Green v. Sneed, 101 Ala. 205, 13 So. 277, 46 Am. St. Rep. 119; Little v. Fowler, 1 Root, 94; Warren v. Layton, 3 Harr. (Del.) 404; Vogle v. Ripper, 34 Ill. 100, 85 Am. Dec. 298; Elliott v. Blair, 47 Ill. 342; Wallace v. Wallace, 8 Ill. App. 69; First Bank v. Ryan, 31 Ill. App. 271, 38 Ill. App. 268, affd. 148 Ill. 349, 35 N. E. 1120; Hayes v. Wagner, 89 Ill. App. 390; Hampton v. Mayes, 3 Ind. Ty. 65, 53 S. W. 483; Krause v. Meyer, 32 Iowa, 566; Morrison v. Huggins, 53 Iowa, 76, 4 N. W. 854; Eckert v. Pickel, 59 Iowa, 545, 13 N. W. 708; Maguire v. Eichmeier, 109 Ia. 301, 304, 80 N. W. 395; Edington v. McLeod, 87 Kans. 426, 124 Pac. 163, 41 L. R. A. (N. S.) 230; Ramsey v. Utica Deposit Bank, 156 Ky. 263, 160 S. W. 943; Hervey v. Harvey, 15 Me. 357; Morrison v. Welty, 18 Md. 169; Owen v. Hall, 70 Md. 97, 16 Atl. 376; Jeffrey v. Rosenfeld, 179 Mass. 506, 61 N. E. 421; McCormick Harvesting Mach. Co. v. Blair, 146 Mo. App. 374, 124 S. W. 49; State Bank v. Shaffer, 9 Neb. 1, 1 N. W. 980; Lewis v. Schenck, 18 N. J. Eq. 459, 90 Am. Dec. 631; Hunt v. Gray, 35 N. J. L. 227, 10 Am. Rep. 232; Merrick v. Boury, 4 Ohio St. 60; Savage v. Savage, 36 Oreg. 268, 59 Pac. 461;

Where the instrument was given in conditional payment of an antecedent debt, there is no difficulty in reaching this result. The instrument has not been paid at maturity, and the old debt therefore still exists. But the same result would probably be reached in the United States, though no debt had ever existed before the transaction of which the delivery of the instrument was a part, though a recovery of the consideration or its value must in such a case be supported on principles of quasi-contract.84 If a material alteration is made fraudulently, however, no recovery can be had in any form of action either on the instrument or the original debt or consideration.85

§ 1912. Application of doctrine to mortgages.

The application of these principles seems clear in the case of alteration of a mortgage note or bond. If the effect of the alteration is to discharge not simply the note or bond, but the debt itself, the mortgage, being an incident of the debt, must

Keene v. Weeks, 19 R. I. 309, 33 Atl. 446; Wyckoff v. Johnson, 2 S. Dak. 91, 48 N. W. 837; Columbia Grocery Co. v. Marshall, 131 Tenn. 270, 174 S. W. 1108; Otto v. Halff, 89 Tex. 384, 34 S. W. 910, 59 Am. St. Rep. 56; Matteson v. Ellsworth, 33 Wis. 488, 14 Am. Rep. 766. See also Craig v. Lowe, 36 Ga. 117. Contra, are White v. Hass, 32 Ala. 430, 70 Am. Dec. 548; Toomer v. Rutland, 57 Ala. 379, 29 Am. Rep. 722.

As the note, though void because of alteration, may be injurious to the defendant if it remains outstanding, the plaintiff is required to surrender it in order to recover the consideration. Morrison v. Welty, 18 Md. 169; Smith v. Mace, 44 N. H. 553, 560; Booth v. Powers, 56 N. Y. 22, 31. Cf. Eckert v. Pickel, 59 Ia. 545, 13 N. W. 708.

84 In Columbia Grocery Co. v. Marshall, 131 Tenn. 270, 174 S. W. 1108, the right of an innocent holder of an altered note to recover on the original consideration was stated as existing only where the note was taken

in conditional payment. Cf. Jeffrey v. Rosenfeld, 179 Mass. 506, 509, 61 N. E. 421.

85 Elliott v. Blair, 47 Ill. 342; Ballard v. Franklin Ins. Co., 81 Ind. 239; Woodworth v. Anderson, 63 Ia. 503, 19 N. W. 296; Hocknell v. Sheley, 66 Kan. 357, 71 Pac. 839; Sherman v. Connecticut Mut. L. Ins. Co., 222 Mass. 159, 110 N. E. 159; Warder, etc., Co. v. Willyard, 46 Minn. 531, 49 N. W. 300, 24 Am. St. Rep. 250; Bank of Lauderdale v. Cole, 111 Miss. 39, 71 So. 260; Walton Plow Co. v. Campbell, 35 Neb. 173, 52 N. W. 883, 16 L. R. A. 468; Martendale v. Follett, 1 N. H 95; Smith v. Mace, 44 N. H. 553; Clute v. Small, 17 Wend. 238; Kennedy ". Crandell, 3 Laus. 1; Meyer v. Huneke, 55 N. Y. 412; Booth v. Powers, 56 N. Y. 22; Columbia Distilling Co. v. Rech, 151 N. Y. App. Div. 128, 135 N. Y. S. 206; Columbia Grocery Co., v. Marshall, 131 Tenn. 270, 174 S. W. 1108. Otherwise in South Carolina. See the following note.