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Sanderson v. Symonds, 1 B. 8. B. 430; Fairlie v. Christie, 1 Moore, 114. And any material alteration made in a contract requiring a stamp, after it has been once perfected, and has become an available security, even with the consent of the parties, will require a fresh stamp; which if not added, will discharge the party, by operation of the Stamp Laws, Bathe v. Taylor, 15 East, 416; and, in the case of bills of exchange and promissory notes, such an alteration would render them absolutely void : post, “Bills of Exchange." But no alteration made in furtherance of the original object and meaning of the parties, and for the purpose of correcting an error, can render the instrument invalid, even as respects the Stamp Laws; infra and post,“ Stamp."
*Whether the alteration be by erasure or addition, and whe1*777 ther the original writing be legible or not, is immaterial. The
alteration of one or two parts of an agreement discharges the party liable thereon, if made without his concurrence. Thus, a material alteration in a sale note by the broker, after the bargain made at the instance of the seller, without the consent of the purchaser, annuls the instrument, so as to preclude the seller from recovering upon the contract evidence by the instrument so altered by him : Powell y. Divett, 15 East, 29; Whitcher v. Hall, 5 B. & C. 269; 8 D. & R. 22. An alteration before execution of the contract cannot affect its validity: infra.
The alteration must be in a material part: for the alteration of a written instrument in an immaterial part, by the erasure or addition of a word not affecting the sense, does not discharge the party bound from responsibility, although such alteration was made without his consent, or against his will, by an interested person, Sanderson v. Symonds, 1 B. & B. 426; or by a stranger, Waugh v. Russel, 5 Taunt. 707. Where blanks were left in a mortgage-deed, in a part not affecting the mortgagee, and such blanks were filled up, and interlineations made in the same part of the deed after execution by the mortgagee, the alteration being in an immaterial part of the deed, it was held the deed was not avoided : Doe d. Lewis v. Bingham, 4 B. & A. 672; and see Com. D. Fait. F. 1; Hall v. Chandless, 4 Bing. 123. An alteration in a material part discharges the dest., even though the alteration is beneficial to him: Semb. Whitcher v. Hall, 5 B. & C. 269; 8 D. & R. 22. It seems the alteration, however, should be a substantial one: ib. With respect to what is a material alteration, it must necessarily depend on its nature, and the nature of the contract. Where, after the execution of a policy, the time of sailing was enlarged by the assured, and acquiesced in by all the underwriters except the deft., it was held this was a material alteration, and that the policy was void as to him : Fairlie v. Christie, i Moore, 114; post, “Stamp;" and see the various instances as to bills, post, "Bills of Exchange.”
The alteration must, to discharge the party, be made by the plt., or a party interested, 4 T. R. 320, Johnson v. D. of Marlboro., 2 Stark. 313, Sanderson v. Symonds, 1 B. &. B. 430; when it would not be any discharge if made by accident, Wilkinson v. Johnson, 3 B. &. C. 428, 5 D. & R. 433, Palm. 403, or by a stranger, provided the original terms of the instrument can be ascertained : ib., Raper v. Birkbeck, 15
East, 17; 11 Co. R. 27, a.; per Dallas, I., 1 B. & B. 430. Thus a deed, which had erasures in it and from which the seal was torn, was held good; it appearing that the seal was torn off by a boy: Palm. 403. So, where an umpire had altered his award after his authority was at an end, the court refused to set it aside, but confirmed it for the original sum awarded, which was still legible; saying, that the umpire was to be considered as a mere stranger, but that, if the alteration had been made by a party interested in the award, it would have been otherwise: Henfrey v. Bromley, 6 East, 309. And where, on a bond conditioned to pay £100 by six equal payments of £16. 13s. 4d, on the third of October in every year, until the full sum of one pounds was paid, a stranger inserted the word hundred between one and pounds, the sense being sufficiently manifest before the alteration, that the condition was for payment of £100, by six yearly instalments of £16. 13s. 4d., it was held, that the insertion of the word hundred did not alter the sense, and was therefore immaterial, and did not destroy the bond: Waugh v. Bussel, 5 Taunt. 707. Nor would such an alteration void the instrument, though made without the consent of the deft., and by an interested person: Sanderson v. Symonds, 1 B. L. B. 426.
The alteration must, to discharge the party, be made against his consent: for, if it be made merely for the purpose or correcting a mistake, and in furtherance of the original intention of the parties, such alteration will not discharge either party, either at common law, or as regards the stamp *laws: Sanderson y. Symonds, 1 B. & B. [*787 426; see instances, Ch. B. 102. A substantial alteration made in an instrument of guarantee, without the consent of the surety, even though the alteration is beneficial, will discharge such surety: 2 Bro.
C. C. 579; 2 Ves. J. 542 ; 3 Mer. 272; Heard v. Wadham, 1 East, 619; French v. Campbell, 2 H. B. 163; 6 T. R. 200, s. C.; Matson v. Booth, 5 M. & S. 223: 5 B. &. C. 269; 8 D. &. R. 22. There can be little doubt that an alteration in a material point would avoid the contract, if made without the consent of the party to be bound; although such alteration rendered the instrument conformable with the original intention of the parties; for parol testimony of such meaning could not, in such case, be admissible in contradiction to the written contract, as it was originally worded by both parties: Kershaw v. Cox, 3 Esp. Rep. 246; Cole v. Parkin, 12 East, 471; Bathe v. Tuylor, 15 East, 415. Where there are several parties to, and several interests in, a contract, an alteration by the consent of one of such parties, his interest only being thereby affected, will not discharge the others, though against their consent. Therefore, when a lease of lands was made by A. to B., at the request of C., D., and E., out of which B. was to grant underleases at the direction of D., E., and F. (the object of which underleases was to secure a ground-rent to A. and C.), and subject to such underleases, was to stand possessed of the lease in trust for D. and E., who were parties to the original lease : after C., D., and E. had executed that lease, and before A. or B. had executed it, the lease was altered, with the consent and privity of C. only, by an erasure which excluded a certain portion of land inserted by mistake, but in which D. and E. had no interest, VOL. I.
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and A. and B. then exccuted the lease: it was held that this alteration did not render it invalid: Hall v. Chandless, 4 Bing. 123.
Proof of Alteration.] If the alteration appear upon the face of the instrument which the opposite party adduces in support of his case, inasmuch as such alteration gives the appearance of fraud, it imposes upon such party the proof of explaining away the same: Singleton v. Butler, 2 B. & P. 283; Johnson v. D. of Marlboro., 2 Stark. 213. But it is at all times, if practicable, advisable for the other party to prove the alteration; and it is necessary to do so, if the alteration is not apparent on the face of the instrument, or it is doubtfully so. For this purpose, dest. should be prepared to prove the original contract from a copy, or otherwise, or by witnesses who can speak to the same. He should, if possible, prove the alteration itself, and that it was made by the plt., or for him, with his consent; and, if the erasure or alteration be so done as to be scarcely perceptible, it would be advisable to subpæna some party, such as an officer from the bank, who is accustomed to discover forgeries, &c., or alterations of this nature. If it be expected plt. will endeavour to prove deft.'s assent to the alteration, deft. should be prepared to rebut such evidence.
Evidence for Plaintiff.
We have seen how far the burden of explaining away an alteration lies on the plt., supra; also as to how far an alteration avoids a contract. The plt, should be prepared to show that the erasure was made at the time of the contract being entered into, by means of the subscribing witness, or otherwise. If it was made afterwards, for the purpose of furthering the original intent of the parties, the plt. should be prepared to prove that fact: ante, 77. In some cases, indeed, the instrument itself would show such intent: 5 Taunt. 707, ante, 77. If the erasure was made by the subsequent assent of the deft., such subsequent assent should be proved: see “Admissions," "Written Evidence," post, “Bills of Exchange.”
See “ NUISANCE."
Form of Remedy, 79.
for continuing the Obstruction, 81.
in general, ib.
against Plaintiff's Right, ib.
Form of Remedy. The form of remedy for the obstruction of light or air through ancient windows, by any erection not on the plt.'s land, whether in the name of tenant in possession or the reversioner, is by an action on the case. The form is the same, though the plt. claim by grant; 1 Price, 38. When an injunction will be granted, see 2 Swans. 333. The only remedy a party has against another, for opening a new window, or enlarging or raising an ancient one, so as to disturb plt.'s privacy, or otherwise annoy him, is to place some erection on the plaintiff's land, opposite to the offensive window, or part newly enlarged or raised, taking care to commit no trespass, Chandler v. Thompson, 3 Camp. 80; Weld v. Hornby, 7 East, 195; such party cannot bring an action, ib. There is no remedy for the mere obstruction of a prospect : 9 R. 58; Riviere v. Bower, 1 R. & M. 25; Back v. Stacey, 2 C. S. P. 466. A party cannot obstruct an ancient light, because it is against the provisions of the Building Act, 14 G. 3, c. 78; Titterton v. Conyers, i Mars. 140.
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Form of Pleadings. Declaration. The venue must be local: 1 Taunt. 379. It is sufficient in actions of this nature for plaintiff to declare on his possession of the house, as in the following precedent, and it need not be stated plt. was lawfully possessed: 1 East, 244, 212; Dowland v. Slade, 5 East, 276. And it is *improper to set out his title, or [*807 allege prescription, &c. as it is merely matter of evidence, and the form is the same, whether the plt. claim by prescription or grant: 1 Price, 38. This subject is fully explained in 2 Saund. 113, a. (1.) to
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114, b. Stating an insufficient title is demurrable : 2 Ld. Raym. 228; 1 Salk. 365. In declaring of the suit of a reversioner, his interest must be described accordingly, though it is sufficient to allege generally that the premises were in the possession of a third person, as plt.'s tenant; in thus stating the title, see post, “Nuisance." The local situation of the premises need not be described, and, if stated, a variance in it would be fatal; it is not necessary to state, as in some precedents, that the windows were "ancient:" Com. D. Action sur le case, E. 1; 2 Saund. 113, 6. 114; 1 Price, 27. The precise day, in stating the obstruction, is immaterial: Cro. El. 191. The statement of the injury need not be with local certainty, and it is sufficient, if it be laid at any place within the body of the county : Mersey Navig. Com. v. Douglas, 2 East, 502; Jefferies v. Duncombe, 11 ib. 226. The mode of obstruction, if stated, should be according to the fact; but there is no occasion to state such mode, and it will suffice to declare as in the following precedent: 3 Leon. 13, Cro. J. 606; 1 B. 4. P. 180; 1 Ld, Raym. 452; Willes, 577; There is no occasion for alleging that the obstruction raised was on a new foundation; though in London a person may build upon an ancient foundation, against the lights of another: Yelv. 215; 1 Rol. 558; i Bur. 248; 2 Swans. 333. As the filing the bill in K. B. is the commencement of the suit, it is always correct, in that court, to state the obstruction still continues : Swancot v. Westgarth, 4 East, 76; Best v. Wilding, 7 T. R. 4. But, in 2 Chit. Pl. 770, it is said that in C. P. 6it seems more correct here to insert a particular day.” It is not necessary to state the commencement of a nuisance, where the plt. proceeds for its continuance, for it is said that, “as the action of the case declareth the whole matter, it is not material when the nuisance was erected:" Cro. E. 191; see also l Ld. Raym. 370; 1 Salk. 10; Carth. 455; vide, “Case." Where the party proceeds for a continuance of a nuisance against the feofee or lessee of the original obstructor, it has been considered necessary to state a previous request or notice to remove such nuisance: Willes, 583; Cro. J. 555; 5 Co. 100-1; Jenk. 260. But, on a question as to the necessity of proving such request, Abbot, C. J., observed, “ that a person who takes premises upon which a nuisance exists, and continues it, takes them subject to all restrictions imposed upon his predecessors;" therefore, where such predecessor was not entitled to notice, it can hardly be necessary to allege it: Salmon v. Bensley, 1 R. . M. 189.
Plea, &c.] The plea will be the general issue. Under this plea it has been held deft. may show a custom of London to build on an ancient foundation to any height, Com. Rep. 273, 1 Wils. 45, 175, 2 Mod. 274; or he may give in evidence plt.'s license, or any other fact which can show deft. had a right to obstruct the light, &c.; Winter v. Brockwell, 8 East, 308; 2 Mod. 6; Com. Rep. 273, n.; 5 B. 4. C. 221.