#### LEMON S. DUNN et al, Ex'rs., v. PEREGRINE P. CLEMENTS.

Where the obligee, in a bond, attempted to retrace part of the obligor’s name, which had been blotted with ink and obscured, and in doing so mispelled it, but not so as to alter the sound, (no fraud being imputable to the act) it was Held that the obligation was not thereby avoided.

Action of debt ordered out of the' Supreme Court, in aid of a suit in Equity, between the same parties, pending there, tried before Si-iepiierd, J., at the last Fall Term of Martin Superior Court.

The action ivas upon a bond for a hundred dollars, which liad been given by the defendant to the plaintiffs’ testator, and signed by him thus, Peregrine P. Clements. It appeared, from inspecting the paper, that ink had fallen upon the paper at the name, and that in attempting to wipe it off, the latter part of the surname had been nearly obliterated, and that an attempt had been' made to restore it; that in doing so, the letters “ gran” had been traced over the blotted place instead of “ grine,” so as to make the name “ Peregran” instead “ of Peregrine.” This alteration was proved not to be the hand-writing of the defendant. *

*59The Court held, that if the alteration described, was made by the obligee, or by those who represented him, it would avoid the bond. Eor this, plaintiffs’ counsel excepted.

The plaintiffs’ counsel asked the Court to charge the jury, that they ought to presume the alteration to have been made by a stranger rather than the obligee, and that there was no evidence that it was made by the obligee.

The Court declined giving the instruction asked for, but charged that' there was no evidence that the alteration had been made by a stranger, nor was there any presumption of law or fact to be given to them ; that on the other hand, there was evidence against the obligee, from his ownership and custody of the bond; that the burden was on the plaintiffs to account for the alteration, as the paper was in their possession, and that they had offered no evidence to explain it. The plaintiffs’ counsel again'excepted.

Yerdict and judgment for the defendant, and appeal by the plaintiffs.

-Rodman, for the plaintiffs.

Winston, Jr., for the defendant.

Manly, J.

The instruction given by the Court below, as

to the effect of the alteration, is not without the warrant of some earlier decisions, but we think is not in accordance with the later cases, and with the better reasoning on the subject.

The case before us, seems to have-been a clumsy attempt to restore the name of the obligor, after it had been nearly obliterated by the spilling of ink. It is not, as we think, a material alteration, and does not, therefore, without proof of a fraudulent intent, vitiate the instrument, although made by the obligee. It is clear that neither spilled ink, nor a successful attempt at retracing, would constitute an alteration to avoid the instrument. It must, therefore, be the failure to retrace correctly. This failure consists in the change of a single letter, (i) to (a) and we are of opinion that does not so alter the sound as to make a different name. Pronouncing it with the ordinary accent, it will sound the same, whether *60it be written with an a, e, or i. The name, as changed then, is not a material variance from the original. The change does not alter the name to any other; neither does it vary the legal effects of the instrument, nor the rights of the respective parties thereto. The instrument, therefore, is the same in substance, and there can be no good reason why it should be made void in the hands of the obligee. The Granite Railway Company v. Bacon, reported in 15 Pickering, 239, was a case in which another payee was interpolated into a bill of exchange (the name being placed over the original payee and the latter left unobliterated.) This was done by the holder without any fraudulent purpose, and it was held not to avoid the bill.

"Wherever the alteration is a material one, a presumption of fraud arises, but it is, as we conceive, a rebuttable presumption ; but where the alteration is not material, the instrument will not be affected thereby, unless it be shown the alteration was made with an intent to defraud; 2 Parsons on Contracts, 226, (notes); Adams v. Frye, 3 Metcalf Rep. 103. The case of Blackwell v. Lane, 4 Dev. & Bat. Rep. 113, was, where a person, with no fraudulent intent, had, without the direction or consent of two of the obligors, placed his name to a bond as an attesting witness. This was decided not to avoid the obligation as to the two; but whether it was on the ground, that the alteration was immaterial, or, if material, without fraudulent intent, does not distinctly appear.

The Court below held the alteration, stated upon the record, to be such, that if made by the obligee, or any one who represented him, it would avoid the bond. In this, we think, there is error.

The other points in the case, it is not necessary for us to notice. The disposition made of the principal one, upon which the others hang, disposes of them.

The judgment of the Superior Court is reversed, and a venire de novo awarded.

Per Curiam,

Judgment reversed.