Smith v. Eason.

The case of Morrison v. Morrison, 3 Dev. Rep. 402, which was an action of debt upon an unsealed engagement of the defendant's intestate, to convey to the plaintiff a tract of land, is directly in point. That case was based upon the English one of A'Court v. Cross, 11 Eng. Com. L. Rep. 124; and the principle has been recently recognised again in this Court. See Thompson v. Gilreath, 3 Jones' Rep. 493. The principle is, that the action of debt, being founded on the original contract, is barred by the statute, and then the replication that the defendant promised to pay within three years next before suing out the writ, is a departure in pleading, and, therefore, inadmissible, and of course no testimony can be allowed to support it. As the verdict was taken in the Court below, subject to the opinion of the presiding Judge, whether the evidence was sufficient in law to take the case out of the operation of the statute of limitations, and as we are of opinion that it was not, though for a reason not in the contemplation of the parties, we must reverse the judgment rendered for the plaintiff, and direct a judgment of non-suit to be entered here. It is not a proper case for allowing the amendment asked for by the plaintiff's counsel. Grist v. Hodges, 3 Dev. Rep. 204; State v. Muse, 4 Dev. and Bat. 322. Let the judgment be reversed and a judgment of nonsuit entered.

PER CURIAM.

Judgment reversed.

MATTHEW SMITH vs. JOHN EASON, ADM'R.

In ascertaining whether an instrument was intended by the maker to operate as a bond or as a will, words which may not change the legal effect of the instrument, and may, therefore, be immaterial in construing it, supposing its character to have been established, may be quite material in ascertaining its character, and though their alteration or erasure may be of no importance in the former point of view, yet they are quite material in the latter.

Smith v. Eason.

ACTION OF COVENANT, tried before MANLY, J., at the Fall Term, 1856, of Wayne Superior Court.

The action was brought upon the following instrument of writing:

"I, Henry Britt, Sen., do this day give my note to Matthew Smith, in the manner following, for my executor or administrator to pay to Matthew Smith, five thousand dollars, just for the good will I have for him, at my death, for him to have in fee simple forever, as witness my hand and seal, this Feb. 18, 1854. HENRY BRITT, Sen., [Seal.]

Test-William T. Hines."

The subscribing witness testified that the instrument was written by the plaintiff, after the dictation of the intestate; that it was read word for word as it was dictated, and that it was read to him more than once. This witness also testified that the instrument was all written at the same time and with the same ink, and that it was, at the time of the trial below, in the same condition as it was when executed.

Witnesses were called on the part of the defendant, who stated that, with the assistance of a glass, they could perceive there was a part of the writing done with different ink, that is, the dotting of an "i" or the crossing of a "t"; the word "administrator" was interlined, and the words "witness my hand and seal" were interlined also. These witnesses also stated that the word "executor" and the signature of the obligor were in a different ink.

The defendant contended

1st. That this instrument was a will, and could be of no legal effect until after probate and registration, and that this was a question of law.

2nd. Supposing the instrument to have been executed, that it had been altered since its execution in the several particulars stated by the witnesses, and was, on that account, void.

The Court instructed the jury as to the first point, that it involved a question of fact, depending not only upon the phraseology of the instrument, but also upon the intention of the maker, as it might be gathered from the testimony of the sub

Smith v. Eason.

scribing witness and circumstances. And they were directed to enquire from the facts whether it was intended to operate between the parties, upon its delivery, as a clear irrevocable act as a note or bond which the maker could not abrogate, or as a will; if the former, it was good; if the latter, it was not good, for the want of attestation, probate, &c. For this, the defendant's counsel excepted.

With respect to the alterations alleged, the Court was of opinion that, by whomsoever or wheresoever made, they did not per se avoid the instrument; that the crossing of a "t" or dotting an "i," putting in "administator" and "witness my hand and seal," were immaterial alterations, and did not change the legal effect of the instrument; but that, unexplained, they were matters of suspicion, and might be considered in connexion with objections to its original execution, or to its fairness in other respects; that the law on this point had been diversely held, but that he believed this opinion in accordance with the weight of authority.

Defendant further excepted.

Verdict and judgment for plaintiff, and appeal by defendant.

Moore, for plaintiff, (with whom were Dortch and Bryan,) argued as follows:

1. The rule of law respecting the alteration of bonds as stated in Pigot's case, is not followed any where. No text writer states it with the rigour of LORD COKE. See 2 Bl. Com. 308; Chit. Genl. Pr. 304. The rule is not followed in England. Adams v. Bateson, 19 E. C. L. Rep. 21; Hudson v. Revett, 15 Ibid. 472; Best's opinion; Collins v. Prosser, 8 E. C. L. Rep. 183.

2. The opinion of the Court in Pullen v. Shaw, 3 Dev. 238, that an immaterial alteration made by the obligee will avoid the bond, is extrajudicial.-In Nunnery v. Cotten, 1 Hawks 222, the doctrine is pushed to an extreme. Even in this case, however, the Court ground their opinion, that the alteration

Smith v. Eason.

was done with "a fraudulent design," per TAYLOR, C. J. The Court assume that the act done is a "serious offense," that is, forgery. There can be no forgery unless the alteration is material. The doctrine in Pigot's case is disaffirmed in Matthis v. Matthis, 3 Dev. and Bat. 60; Blackwell v. Lane, 4 Dev. and Bat. 113. In neither of these cases is any notice taken of Pullen v. Shaw or Nunnery v. Cotten. It is submitted that this silence is significant of dissatisfaction with the broad doctrine laid down in them; especially when we observe the Court citing in Matthis v. Matthis, Chit. Gen. Pr. 304.

3. There is no question, perhaps, on which such abundance of respectable contradictory authority may be cited; and for the ease of the Court in investigating the subject, they are referred to Smith v. Croker, 5 Mass. 539; Hunt v. Adams 6 Ibid. 519; Davidson v. Cooper, 11 Mees. and Welsb. 778; Chitty on Cont. 785-6, and notes and cases cited; Waugh v. Bussell, 1 E. C. L. Rep. 241; Hatch v. Hatch, 9 Mass. 307. The doctrine that an immaterial alteration made by a stranger, will not vitiate a bond, is founded in correct principles of pleading. Waugh v. Bussell ut supra. And that it will vitiate, if made by the obligee, is a departure from those principles, for the declaration is the same in both cases. If it be necessary only to set out the substance of the bond, upon what principle is it that words added by one, will destroy, which added by another will be harmless? The distinction can be founded only on the idea of punishment; and this is a perfect anomaly in the law. If the purpose be to guard the instrument from all vice, it ought to be void by whomsoever the alteration is made. It is moreover absurd to apply the doctrine to a covenant to pay money and pretermit it in a covenant to stand seized of a use. Falmouth v. Roberts, 9 Mees. and Welsb. 469.

The true and sensible doctrine is, that the bond becomes void when it is a forgery. This is ample protection.

W. A. Wright and Iusted, for defendant.

Smith v. Eason.

PEARSON, J. Admitting that there is no error in respect to the first point, and that whether an instrument be a bond or a will, depends upon the intention of the maker, which is to be ascertained as well "from the testimony of the subscribing witness and other circumstances" as from "the phraseology of the instrument," it is very certain that its contents have an important bearing upon the question; in fact, the words used in it are, in most cases, decisive of the character of an instrument.

We think there is an error in respect to the second point. His Honor was of opinion that the alterations, by whomsoever or wheresoever made, did not avoid the instrument, because they did not change its legal effect, and consequently were iminaterial.

From this general language, the appellant has a right to assume that the alterations were made by the plaintiff after the instrument was executed, and in that view, we are now to consider the question. This renders all the learning in reference to alterations in materia land immaterial parts, made by a stranger, inapplicable. For the sake of avoiding a vexed question, discussed in Nunnery v. Cotten, 1 Hawks' Rep. 222, Pullen v. Shaw, 3 Dev. 238, Matthis v. Matthis, 3 Dev. and Bat. 60, "Pigot's case" and the numerous other cases cited, we will admit, that an alteration of a bond made by the obligee in an immaterial part, does not avoid the bond, and that any alteration is immaterial which does not change its legal effect; for instance, if an instrument is, without question, a bond, i. e., "One day after date, I promise to pay A B $500, for the payment of which sum, I bind myself and my executors for value received," (sealed and delivered,) the addition of "administrators" after executors, or interlining "witness my hand and seal," although made by A B, does not alter its legal effect, and, according to our admission, does not avoid the bond.

But it must be borne in mind, that this admission is made upon the supposition, that the character of the instrument as a bond is fixed. In our case, the character of the instrument