1. We think that this appeal must be dismissed. This suit is brought upon an instalment-bond against three brothers, the defendants. The plaintiff alleges that these three brothers executed the bond jointly. The suit has been dismissed in both Courts and the lower Appellate Court finds, as a fact, that two of the defendants never executed the bond, and that their names were not upon it as it was originally executed; and further, that the plaintiff, in whose custody the bond has been, has forged the names of those two defendants upon the instrument, and attempted to enforce it against them all. Upon that ground the Subordinate Judge has dismissed the suit.
2. So far as I understand him, I think he also means to dismiss it upon another ground--namely, that he cannot trust the evidence even against the one brother; but it is not necessary to consider this point, because we are clearly of opinion that a fraudulent addition, such as has been made to this bond, is sufficient to vitiate it as against all the defendants. See the case of Davidson v. Cooper 13 M. & W., Ex. Ch., 352. It was there laid down, that
"a party who has the custody of an instrument made for his benefit, is hound to preserve it in its original state, and that any material alteration of an unsealed paper will vitiate the instrument."
3. In the case of Gardner v. Walsh 24 L. J., Q. B., 285, an alteration had been made very much like the present. A promissory note had been altered by another party being added. The alteration was apparently no disadvantage to the defendants; and yet because it had been made, whilst the document was in the plaintiff's possession, it was held to be invalid as against the defendant. Chief Justice CAMPBELL there says:---
"We conceive that the defendant is discharged from his liability if the altered instrument, supposing it to be genuine, would operate differently from the original instrument, whether the alteration be or be not to his prejudice. If a promissory note payable at three months after date were altered by the payee to six months or if, being made for £100, he should alter it to £50, we conceive that he could not sue the maker upon it after the alteration, either in its altered or original form. The alleged maker was no party to a note at six months, or for £50; and the note at three months or for £100, to which he was a party, is vitiated by the alteration."
4. Mr. Justice Byles also, in his book upon Bills, p. 318, 11th edition, lays down the rule in this way:---
"By a recent solemn decision---
Davidson v. Cooper 13 M. &. W., Ex. Ch., 352---a deed, bill of exchange, promissory note, guarantee, or any other executory written contract, is avoided by an alteration in a material part made while it is in the custody of the plaintiff, although that alteration be made by a stranger. 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 shall be avoided by his laches in suffering another to alter it."
5. It has been argued, that, in this country, the law of England in this respect does not apply. I am sure I do not know why it should not; and I see much reason why it should. The law of England, so far as it is consistent with the principles of equity and good conscience, has generally prevailed in this country, unless it conflicts with the Hindu or Mahomedan law. The learned pleader who appears for the defendants, seems to think that, in equity and good conscience, the plaintiff in this case ought to succeed against one of the defendants. But we are clearly of a different opinion. Where a man has been wicked enough to alter a document fraudulently in this way, we do not think it consistent with equity and good conscience, or with sound policy, (especially in a country like this, where forgery and fraud is so lamentably common), that he should be entitled to recover upon it.
6. Even looking at the question as one of proof merely, the plaintiff ought to fail in his contention, because he has not proved the instrument upon which he founds his claim.
7. No doubt, so long as mistakes are made in ignorance, and not from dishonesty, great latitude is very properly allowed by the Courts here in the way of amendment; but all amendments are in the Court's discretion; and what my learned brother, Mr. Justice FIELD, said just now, is undeniably true, that where a man brings a suit upon an instrument which, when produced in evidence, is found to have been fraudulently altered to the knowledge of the plaintiff, no Court ought to allow an amendment to enable him to succeed upon it in its original state.
8. The appeal is dismissed with costs.