exchange; whether it does or not must depend on the principle on which this law is founded. The policy of the law has been already stated, namely, that a man shall not take the chance of committing a fraud, and when that fraud is detected recover on the instrument as it was originally made. In such a case the law intervenes, and says that the deed thus altered no longer continues the same deed, and that no person can maintain an action on it. In reading that and the other cases cited, I observe that it is nowhere said that the deed is void merely because it is the case of a deed, but because it is not the same deed. A deed is nothing more than an instrument or agreement under seal; and the principle of those cases is that any alteration in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument. And this principle is founded on great good sense, because it tends to prevent the party in whose favour it is made from attempting to make an alteration in it. This principle, too, appears to me as applicable to one kind of instrument as to another.' I have read those portions of the judgments, because they state distinctly what the law is. I may mention that the case of Master v. Miller (1791), 1 T. R. 320, went to the Exchequer Chamber [(1798), 2 H. Bl. 141], and there Eyre, C. B., said, When it is admitted that the alteration of a deed would vitiate it, the point seems to me to be concluded, for by the custom of merchants a duty arises on bills of exchange from the operation of law in the same manner as a duty is created on a deed by the act of the parties.' And Macdonald, C. B., added: 'I see no distinction as to the point in question between deeds and bills of exchange, and I entirely concur with my Lord Chief Justice in thinking there would be more dangerous consequences follow from permitting alterations to be made on bills than on deeds.' The result, therefore, is that the law as settled by those cases applied to all instruments in writing without distinction for this purpose between an instrument under seal which is a deed and an instrument without a seal which is not a deed."-Suffell v. Bank of England (1882), 9 Q. B. D. 555, at pp. 559, 560, 561, 562; 51 L. J. Q. B. 401, at pp. 403, 404, Jessel, M. R.

[See also Leeds Bank v. Walker (1883), 11 Q. B. D. 84; 52 L. J. Q. B. 590, a case of a Bank of England note altered in number and date.]

"It is established that a material alteration in a written instrument does, and an immaterial alteration does not avoid it.

The rule was first laid down, though not precisely in these words, with reference to deeds conveying freehold property; but it has been discussed in many cases, with the result that the rule as now established is held to be applicable to all written instruments, and is not confined to deeds of purchase and sale of land. It must be taken, however, with this qualification, that, in considering whether an alteration is material or not, you must have regard to the particular instrument to see what its purport is and what its office is. That is the obvious conclusion from the case of Suffell v. Bank of England (1882), 9 Q. B. D. 555; 51 L. J. Q. B. 401, where the Master of the Rolls (Sir George Jessel) and the Lords Justices who took part in the decision, and particularly Cotton, L. J., discussed the particular nature of a Bank of England note to show that the alteration there complained of was material, though that particular alteration might not have been material in another instrument."In re Howgate and Osborn's Contract, [1902] 1 Ch. 451, at p. 454; 71 L. J. Ch. 279, at pp. 280, 281, Kekewich, J.

Part IV. DEEDS.

RULES APPLICABLE TO ALL DEEDS.

Deed defined

Presumption respecting the Making of Deeds

Interpretation should be favourable-most agreeable to the Intention

Extrinsic Evidence

Supplying or rejecting Words

Date and Delivery

Contemporaneous Deeds

Time

Definition of

Express or Implied

Construed against Covenantor

Grants from the Crown

Dependent and Independent

Conditions Precedent and Subsequent

Clauses against Public Policy or the Policy of the Law

"Performing'

Restrictive Clauses

Affirmative and Negative

Partly Affirmative and partly Negative

Real and Personal

Joint and Several

For Another

Repugnancy

...

...

Legal and Illegal Parts

Matters referred to

Misdescription--Misnomer

Erroneous Additions

Deed Defined.

"Deed (fait), Factum, Anglicè a deed, and signifieth in the common law an instrument consisting of three things-viz., writing, sealing, and delivery, comprehending a bargain or contract between party and party, man or woman. It is called of

the civilians literarum obligatio."-Co. Litt. 171 b.

"First, then, a deed is a writing sealed and delivered by the parties. It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private subjects, it is called a deed-in Latin factum, xaт' εžox, because it is the most solemn and authentic act that a man can possibly perform with relation to the disposal of his property; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliberately avowed."-2 Bl. Com. p. 295.

"The definition of a deed cited from Spelman [scriptum solemne quo firmatur donum, concessio, partum, contractus, et hujusmodi] seems to me the best."-Reg. v. Morton (1873), L. R. 2 C. C. R. 22, at p. 27; 42 L. J. M. C. 58, at p. 61, Blackburn, J.

In some of the definitions given a deed is described as being something of the nature of a contract. But the term is clearly not confined to contracts. A charter of feoffment, for instance, is a deed; so is a gift or grant, a power of attorney, a release, or a disclaimer. I would go further, and say that any instrument delivered as a deed, and which either itself passes an interest or property, or is in affirmance or confirmation of something whereby an interest or property passes, is a deed. . . . . Many documents under seal are not deeds; for instance, an award, though sealed. Again, a will is often under seal."-Ibid., at p. 27; L. J., at p. 61, Bovill, C. J.

Presumption respecting the Making of Deeds.

Deeds are presumed to be made with great caution, forethought, and advice.

"I must not, however, omit, that in devises by last will and testament (which, being often drawn up when the party is inops consilii, are always more favoured in construction than formal

deeds, which are presumed to be made with great caution, forethought, and advice). ."-2 Bl. Com. p. 172.

Extrinsic Evidence.

Executory or Preliminary Contract.

No parol or extrinsic evidence is admitted to add to, deduct from, or contradict or vary the terms of a deed.

An executory or preliminary contract in writing which is to be carried out by a deed afterwards executed cannot be looked at for the purpose of enlarging, diminishing, or modifying the contract, although it is recited in the deed, except for the purpose of interpreting the deed itself, unless there is a suit for rescinding the deed on the ground of fraud or for altering it on the ground of mistake.

"The rule is perfectly clear, that where there is a deed in writing, it will admit of no contract that is not part of the deed. Whether it adds to, or deducts from, the contract, it is impossible to introduce it on parol evidence."- Irnham (Lord) v. Child (1781), 1 Br. C. C. 92, at p. 93, Lord Chancellor Loughborough.

"It is not necessary to cite any case to prove the proposition that parol evidence of a parol communication between the parties ought not to be received to add a term, not inserted in the specific agreement which they have executed; and for this plain reason, that what passed between them in that communication may have been altered and shifted in a variety of ways, but what they have signed and sealed was finally settled. It would destroy all trust, it would destroy all security and lay it open, unless the parties are completely bound by what they have signed and sealed."-Haynes v. Hare (1791), 1 H. Bl. 659, at p. 664, Lord Loughborough, L. C. J.

"I have never heard the general rule contradicted, that parol or extrinsic evidence cannot be admitted to contradict, vary, or add to the terms of a deed. It would be of most dangerous consequence to admit such testimony; for, then, parties dealing in matters on writing made upon advice and consideration, would be subjected either to the uncertain testimony of vague and precarious memory; or, as in the case at bar, to matter, of which at the time of contracting, they might have no knowledge, and never intended