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and extent of this principle, by tracing it through many cases in which it has been applied, Chief Justice Richardson, speaking for the court, in Goodman v. Eastman, 4 N. H. 457,—a case like this, the question involved and decided being the same, said: "We are inclined to think that the true rule to be extracted from all the cases is, that where one man reposes in another a special confidence, and a loss arises from an abuse of that confidence, if the question, who shall bear the loss, arises between an innocent third person and him who reposed the confidence, the law will throw the loss upon the latter." The same conclusion was reached in Wade v. Withington, 1 Allen, 562. It being correct, it will necessarily follow that the principle that where one of two innocent parties is to bear a loss, it must fall on him who put it in the power of the third to occasion it, can have no application to negotiable paper which has been fraudulently altered in material particulars by third persons, as in this case, holding no relation of agency to the maker, and after it has been executed and delivered as a binding contract.

4. Another reason assigned is: "It is the duty of the maker of commercial paper to guard not only himself but the public against frauds and alterations, by refusing to sign negotiable paper made in such form as to admit of fraudulent practices upon them with ease, and without ready detection." The idea is, the failure to discharge this duty is negligence on the part of the maker, and that he should be held liable for losses suffered by innocent holders on account thereof. The effect of such a doctrine, if carried into practice, would be to require the maker to anticipate and provide against the many ways. through or by which forgery is committed, and to compel him to perform a contract he never made, because some one has committed a forgery by altering a contract he did make. If this be a correct principle, then the owner of goods stolen through his negligence should not have the right to recover them after they have passed into the hands of a bona fide purchaser.

In reply to an argument like this in Holmes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661, which was an action on a promissory note which consisted of a printed blank, with the amount and the time and place of payment filled in with writing, and was altered without the knowledge or consent of the maker by adding after the printed words "with interest at," at the end of the note, the words "ten per cent," Mr. Justice Christiancy,

speaking for the court, said: "The argument amounts simply to this: that by the maker's awkwardness or negligence his note was issued by him in a shape which rendered it somewhat easier for another person to commit a crime than if he had taken the precaution to erase the word 'at' and to draw a line through the blank which followed it; and that a forgery committed by filling this blank would be less likely to excite suspicion than if committed in some other way.

"But how such a crime, whether committed in this or some other way, could create a contract on the part of the maker, we confess ourselves unable to comprehend; nor are we satisfied that a forgery committed in this way would be any less. liable to detection than if committed in many other ways. The negligence, if such it can be called, is of the same kind as might be claimed if any man in signing a contract were to place his name far enough below the instrument to permit another line to be written above his name in apparent harmony with the rest of the instrument; or as if an instrument were written with ink the material of which would admit of easy and complete obliteration or fading out by some chemical application which would not affect the face of the paper; or by failing to fill any blank at the end of any line which might happen to end far enough from the side of the page to admit the insertion of a word. . . . . Whenever a party in good faith signs a complete promissory note, however awkwardly drawn, he should, we think, be equally protected from its alteration by forgery, in whatever mode it may be accomplished; and unless perhaps when it has been committed by some one in whom he has authorized others to place confidence as acting for him, he has quite as good a right to rest upon the presumption that it will not be criminally altered as any person has to take the paper on the presumption that it has not been; and the parties taking such paper must be considered as taking it upon their own risk, so far as the question of forgery is concerned, and as trusting to the character and credit of those from whom they receive it, and of the intermediate holders.

"If promissory notes were only given by first-class business men, who are skilled in drawing them up in the best possible manner to prevent forgery, it might be well to adopt the high standard of accuracy and perfection which the argument in behalf of the plaintiff in error would require. But for the great mass of people, who are not thus skillful, nor in the habit of frequently drawing or executing such paper, such a stan

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dard would be altogether too high, and would place the great majority of men, of even fair education and competency for business, at the mercy of knaves, and tend to encourage forgery by the protection it would give to forged paper."

5. It has been said the free interchange of negotiable paper requires the establishment of the rule insisted on by appellees. But we do not understand the law, in giving peculiar sanction to negotiable paper in order to secure its free circulation and to protect bona fide holders for value before maturity, to go to the extent of holding the maker liable on a contract into which he never entered or gave his assent. On the contrary, the wellsettled doctrine is, that a material alteration in a negotiable instrument, after its execution and delivery to the payee as a complete contract, avoids it except as against parties consenting to the alteration. This doctrine rests on the principle that parties are only liable on their contracts as made and entered nto by them. If the contract has been changed by a material alteration without the privity of the party liable upon it, it ceases to be his contract, and he can no longer be held by it: Overton v. Matthews, 35 Ark. 154; 37 Am. Rep. 9; Wade v. Withington, 1 Allen, 562; Greenfield Savings Bank v. Stowell, 123 Mass. 198.

The authorities upon the question involved in this case are reviewed at length by Chief Justice Gray, in Greenfield Savings Bank v. Stowell, 123 Mass. 198, in a very able and elaborate opinion, and, after deliberate advisement and careful examination, he concluded that the preponderance of authority was to the effect that the alteration in negotiable paper after it has Deen signed and delivered as a complete legal instrument by increasing the amount for which it was made, by the insertion of words and figures in blank places left in the instrument in such a manner as to leave no mark or indication of alteration, avoids the paper as to the makers not consenting thereto, even in the hands of a bona fide holder for a valuable consideration. Mr. Justice Christiancy, in Holmes v. Trumper, 22 Mich. 427, 7 Am. Rep. 661, and Mr. Justice Seevers, in Knoxville National Bank v. Clarke, 51 Iowa, 264, 33 Am. Rep. 129, likewise reviewed the authorities, and reached the same conclusion: See also Goodman v. Eastman, 4 N. H. 455; Wade v. Withington, 1 Allen, 561; Washington Savings Bank v. Ecky, 51 Mo. 272; Gerrish v. Glines, 56 N. H. 9; Bruce v. Westcott, 3 Barb. 374; Bigelow's Bills and Notes, 2d ed., 573, and authorities cited: 1 Randolph on Commercial Paper, sec. 187.

The maker of the check sued on did not authorize the alteration made in it, nor did or omitted anything to induce the belief that it had authorized any one to make it. It was not made by its consent, or by any person standing in a confidential relation to it, or held out as such by it. According to the evidence introduced in the trial, and the findings of the trial court, the check is void in the hands of appellees.

The judgment of the court below must be reversed, and a new trial granted.

ALTERATIONS IN NEGOTIABLE INSTRUMENT AFTER EXECUTION, on whom rests the burden of proof as to: Harris v. Bank of Jacksonville, 1 Am. St. Rep. 201.

MATERIAL ALTERATION IN WRITTEN INSTRUMENT, WHAT CONSTITUTES, AND EFFECT OF: Reed v. Roark, 65 Am. Dec. 127; Vogle v. Ripper, 85 Id. 298; Fay v. Smith, 79 Id. 752, Brownell v. Winnie, 86 Id. 314; Bridges v. Winters, 97 Id. 443, and note 449; Brown v. Straw, 29 Am. Rep. 369; First Nat. Bank v. Fricke, 42 Id. 397; McCauley v. Gordon, 37 Id. 68; Nicholson v. Combs, 46 Id. 229; Aldrich v. Smith, 26 Id. 536; Laub v. Paine, 26 Id. 163; Townsend v. Star Wagon Co., 35 Id. 493; Vaughan v. Towler, 37 Id. 731; Charlton v. Reed, 47 Id. 808; Jones v. Bangs, 48 Id. 664; unauthorized alteration of interest clause in negotiable instrument, when maker not released by: Canon v. Grigsby, 56 Id. 769.

WHEN MAKER OF NEGOTIABLE PAPER MAY BE ANSWERABLE ON IT AS CHANGED OR ALTERED BECAUSE HIS NEGLIGENCE FACILITATED THE ALTERATION. — The doctrine of the principal case, that the holder for value of negotiable paper which has been altered by raising its amount, without the consent of the party to be charged, cannot recover against such party, whatever the good faith of such holder may have been in acquiring the paper, is well sustained by the authorities cited in the opinion: See especially Greenfield Savings Bank v. Stowell, 123 Mass. 198; 25 Am. Rep. 67; Holmes v. Trumper, 22 Mich. 427; 7 Am. Rep. 661, and note C69. So it is held that the change in the date of a negotiable instrument whereby the time of pay. ment is accelerated is a material alteration, and, when made without the consent of the maker, destroys its validity: Crawford v. West Side Bank, 17 Jones & S. 68; affirmed, 100 N. Y. 50; 53 Am. Rep. 152; Vance v. Lowther, L. R. 1 Ex. 176; so of an alteration which changes the place of pay. ment: Charlton v. Reed, 61 Iowa, 166; 47 Am. Rep. 808; or which changes an instrument which was not to draw interest to one drawing interest: Davis v. Henry, 13 Neb. 497; Draper v. Wood, 112 Mass. 315; 17 Am. Rep. 92, and note 97-106, where the cases are collected and examined. See also Dobyns v. Rawley, 76 Va. 537, 544; Batchelder v. White, 80 Id. 103; Hoopes v. Collingwood, 10 Col. 107; Horn v. Newton City Bank, 32 Kan. 518; Savings Bank v. Shaffer, 9 Neb. 1; Cronkhite v. Nebeker, 81 Ind. 319; 42 Am. Rep. 127. The theory that one who makes and issues commercial paper, properly and carefully drawn to express the liability which he intends to assume, is chargeable with negligence on account of the criminal act of another in altering it after its issue, would render the former a warrantor against such acts. and such theory is said to be repugnant to justice and reason: Ruger, C. J., in Crawford v. West Side Bank, 100 N. Y. 50, 55; 53 Am. Rep. 152.

On the other hand, numerous authorities sustain the doctrine that when the maker of negotiable paper leaves blanks unfilled, or by some carelessness or negligence on his part has facilitated the commission of a fraud by those into whose hands the paper may come, he is liable to an innocent purchaser for value who takes it in the usual course of business before maturity: Garard v. Haddan, 67 Pa. St. 83; 5 Am. Rep. 412; Brown v. Reed, 79 Pa. St. 370; 21 Am. Rep. 75; Rainbolt v. Eddy, 34 Iowa, 440; 11 Am. Rep. 152; Yocum v. Smith, 63 Ill. 321; 14 Am. Rep. 120; Blakey v. Johnson, 13 Bush 197; 26 Am. Rep. 254; Abbott v. Rose, 62 Me. 194; 16 Am. Rep. 427; Harvey v. Smith, 55 Ill. 224. And where the makers of a negotiable note delivered it to their co-maker in a condition which enabled him to fill blank spaces without changing the appearance of the paper as a genuine instrument, they were held liable thereon to a purchaser in good faith, notwithstanding the alteration, upon the principle that he who by his carelessness has enabled another to obtain the money of an innocent person is answerable for the loss: Scotland County Nat. Bank v. O'Connel, 23 Mo. App. 165; see also Iron Mountain Bank v. Murdock, 62 Mo. 70; Canon v. Grigsby, 116 (Ill. 151; 56 Am. Rep. 769. But the maker of a negotiable instrument is not required to execute it so as to prevent the possibility of alteration in any event, and whether he exercised ordinary care and prudence in guarding against alterations is held to be clearly a question of fact for the jury: Leas v. Walls, 101 Pa. St. 57; 47 Am. Rep. 699; and see Iron Mountain Bank v. Murdock, 62 Mo. 70.

As regards the filling of blanks in negotiable paper, it is held that one who signs or indorses a note in blank, to be used as a security, authorizes the person to whom it is delivered to fill the blanks in respects essential to the completeness of the note as such, as by inserting the date, the amount, the name of the payee, and the place of payment; but in the absence of express authority or consent, no authority can be implied from the delivery to insert a special agreement not so essential; as, for instance, an agreement that, after maturity, the note should draw a special rate of interest greater than the regular rate: Weyerhauser v. Dun, 100 N. Y. 150; and, to the same effect, see Angle v. N. W. Mut. L. Ins. Co., 92 U. S. 330; McGrath v. Clark, 56 N. Y. 34; 15 Am. Rep. 372; Redlick v. Doll, 54 N. Y. 234; 13 Am. Rep. 573; McCoy v. Lockwood, 71 Ind. 319.

VICK V. SHINN.

149 ARKANSAS, 70.]

existing duress imposed There must be a pressmaking the payment to

PAYMENT IS NOT TO BE REGARDED AS COMPULSORY, unless made to emancipate the person or property from an actual and on it by the party to whom the money is paid. ing and controlling necessity upon the party render it compulsory or involuntary. DURESS OF GOODS DOES NOT EXIST because of a mere threat by a mortagee of chattels, with power of sale, to use his power, unless over-paid, by taking possession of the mortgaged property and selling it, pursuant to a provision in the mortgage. And an over-payment made under protest by reason of such threat is not compulsory in a legal sense, and the amount cannot be recovered back.

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