party taking a substituted security had no notice of the usury, the security is good.(a) Yet, before 58 Geo. 3, c. 93, if a party had taken. an usurious bill without notice of the usury, and, afterwards, upon learning the defect, took a substituted bill, such second bill was void. (b) But, if the substituted security be for principal and legal interest only, expunging the bad part of the debt, it is good. (c) And where a bill or note is given on a consideration, partly usurious and partly legal, the holder cannot recover even for the good part, though the whole amount of the bill should not be sufficient to cover that.(d) It makes no difference that the contract is comprised in two separate instruments.(e)

Before the late statute, if the bill were tainted with usury [*251] *in its inception, or if it was necessary for the holder to make title through any part guilty of usury,(ƒ) he could not recover, though he had no notice of the usury. But now, by the 58 Geo. 3, c. 93, no bill or note, though given for an usurious consideration, or upon an usurious contract, shall be void in the hands of an indorsee for value, unless he had notice at the time of taking the bill that it had been given for an usurious consideration.(g)

Such was the law of usury in its application to all bills and notes before the recent statutes, and such is still the law as to all bills and notes made for a longer period than twelve months, and under the amount of ten pounds.

The 3 & 4 Wm. 4, c. 98, s. 7. which act is still in force, exempts from the operation of the Usury Laws, bills and notes not having more

(a) Cuthbert v. Haley, 8 T. R. 390; 3 Esp. 22, S. C.

(b) Chapman v. Black, 2 B. & Ald. 588; Amory v. Meryweather, 2 B. & C. 573; 4 D. & R. 86, S. C.

(c) Preston v. Jackson, 2 Stark. 237; Barnes v. Hedley, 1 Camp. 157-180, d.; 2 Taunt. 184, S. C.

(d) Harrison v. Hannel, 5 Taunt. 780; 1 Marsh. 349, S. C.

(e) Roberts v. Trenayne, Cro. Jac. 507; White v. Wright, 3 B. & C. 273; 5 D. & R. 10, S. C.

(f) Lowes v. Mazzaredo, 1 Stark. 385.

(g) This statute does not apply to a note in the hands of a party who has taken it in payment of an antecedent debt; see also 5 & 6 Wm. 4, c. 41; Vallance v. Siddel, 6 Ad. & Ell. 932; 2 N. & P. 78, S. C. In an action brought before the passing of this act, but tried after, the defendant may avail himself of 9 Anne, c. 14, and is entitled to nonsuit if he prove the bill to be given for a gaming consideration. Hitchcock v. Way, 6 Ad. & Ell. 943; 2 Nev. & P. 72, S. C.

than three months to run. Query, whether a bill or note good within this act, be invalidated by being part of a real security.(h)

On this statute it has been decided that a warrant of attorney given to secure a bill, which, but for the act, would have been usurious, is within the protection of the statute.(i) The act applies to a note payable to A. or order on demand, and given for money lent on an agreement to pay 51. over and above all lawful interest for the loan during such time as A. should forbear, and give day of payment for the same.(k)

The 1 Vict. c. 80, a temporary act, exempted from the operation of the Usury Laws, bills and notes not having more than twelve months

to run.

The 2 & 3 Vict. c. 37, exempts from the operation of the Usury Laws bills and notes, not having more than twelve months to run, and all contracts(1) for the loan of money above the sum of ten pounds, providing that the act shall not extend to loans on landed security.(m) But a loan of money *on security of a lease, a warrant of attorney and a promissory note, is not protected. (n)

[*252]

The question is, on what security was the money lent? If on a mortgage, and the bill were taken afterwards, there is no valid loan; if on a bill, and the mortgage were taken afterwards, there is a good debt.(o) Where a party borrowed a sum of 67007. on the security of a mortgage and a promissory note, which was discounted by the lender at five per cent. so that the interest to be paid was more than five per cent. on the sum actually advanced, the mortgage was held valid, the jury finding that the primary object of the parties was the discounting of the note.(p) The discount of bills is not illegal, though

(h) Follett v. Moore, 19 L. J. 7, Exch.; 4 Exch. 410, S. C.

(i) Connop v. Meaks, 4 Nev. & Man. 302; 2 Ad. & E. 326, S. C. Vide supra. (k) Vallance v. Siddel, supra, note (g).

(1) Thibault v. Gibson, 12 M. & W. 88.

(m) So that now, persons who have security to offer, and require no protection, are protected; but those who have no security to offer, and, therefore, most need protection, are unprotected.

(n) Berrington v. Collis, 5 Bing. N. C. 332; 7 Scott, 302, S. C. As to renewals, and agreements to give bills at a future time, see Holt v. Miers, 5 M. & W. 168; King v. Braddon, 10 Ad. & E. 675; 2 Per. & D. 546. S. C.

(0) Downes v. Garbutt, 12 L. J. 269, Q. B.; and see Hodgkinson v. Wyatt, 4 Q. B. Rep. 749; Follett v. Moore, 19 L. J. 6, Exch.; 4 Exch. Rep. 410, S. C.

(p) This transaction was before the statute 2 & 3 Vict. c. 37. Doe v. King, 12 L. J. 320, Exch.; 11 M. & W. 333, S. C. Quære, whether an advance on the deposit of a policy of insurance though the insurance company have real securities,

the amount be secured by warrant of attorney, which may become a charge on land.(q)

The statute 2 & 3 Vict. c. 37, is not disabling or retrospective, and therefore if a real security be given for the amount of bills discounted at more than five per cent. before the statute, under the 1 Vict. c. 80, the real security is not tainted with usury.(r)

In a declaration or plea, grounded on the statute of 12 Anne. stat. 2, c. 16, it is not necessary to negative the exception introduced by the 2 & 3 Vict. c. 37. The exception must come fromt he other side.(s)

And in stating that exception it lies on the party introducing it to aver not only that the contract was after the passing of the statute of Victoria, but that it did not relate to land.(t)

This act is extended by the 4 & 5 Vict. c. 54, to the 1st January, 1844; by 6 & 7 Vict. c. 45, to the 1st January, 1846; by the 8 & 9 Vict. c. 102, to the 1st January, 1851, and by 13 & 14 Vict. c. 56, to 1st January, 1856.

IN treating of the alteration of a negotiable instrument, we will

and though the assured be a member of the company, is a loan secured by an interest in land. March v. The Attorney General, 5 Beavan, 433.

(1) Lane v. Horlock, 16 L. J. 87, Q. B.

(r) Bell v. Coleman, 15 L. J. 2 C. P.; 2, C. B. 268, S. C.

(s) Thibault v. Gibson, 12 M. & W. 88.

(t) Washbourne v. Burrows, 16 L. J. 266, Exch.; 1 Exch. 107, S. C.

consider the effect of alteration; first, at common law, and, secondly, under the Stamp Act.

First, at common law. If a deed, well and sufficiently made in its creation, shall be afterwards altered by rasure, interlining, addition, drawing a line through the words, though they be still legible, or by writing new letters upon the old in any material place or part of it, either by the party that hath the deed, or any other whomsoever, unless the alteration be by him who is bound by the deed (for he shall not take advantage of his own wrong,) or by his consent, the deed has lost its force and is become void. (a)

And by a recent solemn decision, a deed, bill of exchange, promissory note, guarantee, or any other executory written contract, is avoided by an alteration in a material part, although that alteration be made by a stranger.(b)(1) For a person, who has the custody of an instrument, is bound to preserve it in its integrity. And as it would be avoided by *his fraud in altering it himself, so it [*254] shall be avoided by his laches in suffering another to alter it.

The rules relating to alteration or rasure of deeds apply (at least for the most part) to other written contracts, and to bills and notes. Thus, where a bill was drawn payable to A. B., and whilst in his possession the date was altered, and the bill was subsequently indorsed to the plaintiffs for value, it was held that they could not recover against the acceptor.(2) "It seems admitted," says Ashurst, J.,

(a) Shepherd's Touchstone, 68. And a deed is not it seems vacated, at common law, if the alteration, though material, were with the consent of all the parties. Markham v. Gonaston. Cro. El. 627; Zouch v. Clay, 2 Lev. 35; Com. Dig. Fait. F. I. (b) Davidson v. Cooper, 11 M. & W. 778, affirmed in error, 13 M. & W. 343.

(1) An alteration by a stranger though material will not render the instrument inoperative. Nicholls v. Johnson, 10 Conn. 192. Medlin v. Platte County, 8 Missouri, 235. Davis v. Carlisle, 5 Alabama, 707. Ford v. Ford, 17 Pick. 418. Waring v. Smyth, 2 Barb. Ch. Rep. 119. Lee v. Alexander, 9 B. Monroe, 25.

(2) An alteration by the payee or holder of a bill or note in any material respect avoids the instrument as to the maker, and all parties except the person making the alteration even in the hands of an innocent indorsee for value.

Stephens v. Graham, 7 Serg. & Rawle, 508. Cloud v. Stout, 5 Litt. 205. Pankey v. Mitchell, 1 Breeze, 301. Mitchell v. Ringgold, 3 Har. & Johns. 159.

Though by the alteration the day of payment is protracted the note is nevertheless void. United States Bank v. Russell, 3 Yeates, 391.

If the note was dated wrong by mistake, yet an alteration without the maker's consent express or implied, renders it void. Bowers v. Jewell, 2 New Hamp. 543. See Hocker v. Jamison, 2 Watts

"that if this had been a deed, the alteration would have vitiated it. Now, I cannot see any reason why the principle on which a deed would have been avoided, should not extend to a case of a bill of exchange. There is no magic in parchment or wax, and the principle to be extracted from the cases is, that any alteration avoids the contract. If A. B. had brought this action, he could not have recovered, because he must suffer from any alteration of the bill whilst in his custody; the same objection must hold against the plaintiffs, who derive title from him."(c) So, where the drawer, without the consent of the acceptor, added to the acceptance the words, "Payable at Mr. B.'s, Chiswell Street," it was held that this was a material alteration, discharging the acceptor.(d) And the same point has been decided

(c) Master v. Miller, 4 T. R. 320; in error, 2 H. Bl. 140, S. C. (d) Cowie v. Halsall, 4 B. & Ald. 197; 3 Stark. 36, S. C.

& Serg. 438. Henderson v. Wilson, 6 How. Miss. Rep. 65.

Writing in the margin "payable at the Bank of America" held to be a material alteration. Woodworth v. Bank of America, 19 Johns. 391. Simpson v. Stackhouse, 9 Barr, 186.

An accommodation bill was drawn for the purpose of being discounted at a bank, and at the foot of it was a memorandum, signed by the last indorser, directing the proceeds of the bill to be credited to the drawer. On the trial of a suit on the bill by the last against a prior indorser, it appeared that this memorandum had been cut off. It was held that the memorandum was no part of the bill, and that its being taken off in no way affected the rights of the parties to the bill. Hubbard v. Wiiamson, 25 Iredell, 397.

If blank spaces be left to be filled after execution, the consent of the party executing that they shall be afterwards filled is to be implied. Wiley v. Moon, 17 Serg. & Rawle, 438. Smith v. Crooker, 5 Mass. 538. Jordan v. Neilson, 2 Wash. 164. Boardman v. Gore, 1 Stewart, 517. Bank v. Curry, 2 Dana, 142. Stahl v. Berger, 10 Serg. & Rawle, 170. Commonwealth Bank v. McChord, 4 Dana,

191. Douglass v. Scott, 8 Leigh, 43. Richmond Manufacturing Co. v. Davis, 7 Blackford, 412.

An alteration which does not vary the meaning of an instrument does not avoid it, though made by the party claiming under it. Nicholls v. Johnson, 10 Conn. 192. Granite Railway Co. v. Bacon, 15 Pick. 239. Morrill v. Otis, 12 N. Hamp. 466. Pequawket Bridge v. Mathes, 6 N. Hamp. 139. Mathis v. Mathis, 6 Dev. & Batt. 60. Harris v. Bradford, 4 Alabama, 214. Gardiner v. Sisk, 3 Barr, 326.

When a person not present at the execution of a promissory note afterwards puts his name thereto as a witness by the procurement of the payee, it avoids the note. Homer v. Wallis, 11 Mass. 309. Aliter where a person present at the execution, afterwards affixes his name as a witness without any fraudu lent intent. Smith v. Dunham, 8 Pick. 249. See Marshall v. Gougler, 10 Serg. & Rawle, 164. Ravisies v. Alston, 5 Alabama, 297. Stewart v. Preston, 1 Branch, 10. Blackwell v. Lane, 4 Dev. & Batt. 113. 103. 518. 298.

Adams v. Frye, 3 Metcalf, Henning v. Werkheiser, 8 Barr, Thornton v. Appleton, 29 Maine, State v. Gherkin, 7 Iredell, 206.