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 *Page 37 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 case 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. 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 immaterial.
From this general language, the appellant has a right to assume that the alterations were made by the plaintiff after the instrument wasexecuted, 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 *Page 39 is the very question in dispute, and his Honor was led into error by assuming, in the first part of his charge, that the character of the instrument was fixed, without reference to the alterations, and afterwards, in the second part of the charge, treating it as a bond, under the misapprehension that the question then was, whether the alterations changed its legal effect. The instruction prayed for, in the second place, was, that the alterations avoided the instrument, supposing it to have been executed, leaving its character undetermined. Now, although the alterations were immaterial in reference to the legal effect of the instrument, supposing it to be a bond, yet they were clearly very material in reference to its character, that is, whether it be a bond or a testamentary disposition, for this, as we have seen, was to be decided mainly by the words contained in it; and it may well be, that a word will change itscharacter, although, supposing that to be fixed, the same word would not change its legal effect; for instance, if one make an instrument, in writing, for his executor to pay A B $5,000, the addition of the word "administrator" tends to fix its character as a bond, and to repel the idea of its being a direction to his executor as a testamentary disposition, by providing for a case of intestacy; so, the words "witness my hand and seal," have a tendency to give to it more of the appearance of a bond, and consequently to influence the decision of the question as to its character. In this view of our case, the alterations were material. It is admitted that the alteration of a bond by the obligee in a material part, so as to change its legal effect, avoids it. This is upon the ground, that it is a wilful and fraudulent attempt to change its nature, and amounts to a "spoliation." The same principle applies to an alteration of an instrument, by the party interested under it, in a material part, so as to change its character; upon the ground, that it is a wilful and fraudulent attempt to change its nature, and amounts to "spoliation." In like manner, expunging a word, if the character of the instrument be undisputed, may not change its legal effect, whereas, if the question be as to its character, such expunging may change it *Page 40 altogether, and would consequently be a material alteration. For instance, "I give and bequeath to A B my sorrel horse," (signed, sealed and delivered). This is a testamentary instrument. Expunge the word bequeath, and it becomes a deed of gift.
The case does not state distinctly that the instrument in question was delivered. This circumstance would tend strongly to fix its character; for delivery is necessary to make a deed, and, although not wholly inconsistent with the making of a will or a testamentary disposition, is very rarely a part of the res gestae at its execution.
PER CURIAM. Venire de novo.