
    ALLEN HOLLAND v. L. LOCKE ET AL.
    Knoxville,
    May Term, 1876.
    1. MATERIAL ALTERATION. Ratal to recovery; instance of.
    Striking out all the names except one of several payees, to a bill single, is a material alteration, and if done by the owner, without the consent of the maker, it is fatal to a recovery, and a plea of non est factum lies.
    2. SAME. Spoliation, if done by stranger.
    If the alteration was made by a stranger, it would be termed a “spoliation,” and a recovery might Le had upon the spoliated instrument, if enough remained to determine its identity and its terms; otherwise, secondary evidence might be resorted to.
    Cited with approval: Crockett v. Thomason, 5 Sneed, 342, 344, 345.
    3. SAME. Burden of proof.
    It rests upon the holder of the paper to show that the alteration was not made by him, before he can recover on the note.
    4. SAME. Statute of limitations.
    Where the debt growing- out of the original consideration is barred by the statute of limitations pleaded and relied upon, there can be no recovery, though the note given therefor and rendered void by a material alteration, is not barred by the statute.
   MoFarlakd, J.,

delivered tbe opinion of tbe court:

Tbe note, or bill single, in controversy, was originally made payable to tbe several persons wbo sol'd tbe slave, tbe consideration oí tbe note; but when tbe note is produced upon tbe beginning of this litigation, it appears -that all tbe names of tlio payees bave been stricken out, by drawing lines across tliem, except one, J ames W. Gillespie, and on this ground, tbe maker of tbe note (Locke) pleaded non est factum to tbe action at law. Tbis was a material change of tbe obligation, and if made by tbe obligees, or owners of the note, or any of them, without tbe knowledge or consent of -the obligor,' it would amount, in law, to an alteration, and would be fatal to a recovery. If tbe names were stricken out by a stranger, it would be termed a-“spoliation,” and a recovery might be bad npon it, if enough remained to determine its identity and its terms; otherwise, secondary evidence might be resorted to. Crockett v. Thomason, 5 Sneed, 342 [344-5].

It does not appear in tbe present case who made tbe change in tbe writing, bnt it appears that tbe obligor, Locke, did not know of or consent to tbe change, and it was incumbent upon tbe parties claiming, under tbe -note, and wbo produced it, to explain tbe alteration, which they bave failed to do, and there can be no recovery upon it.

Tbe complainant, wbo claims to be tbe equitable owner of tlie note, can stand upon no higher ground and claim no greater right than the payees of the note.

The complainant can have no recovery against Locke upon the footing of the original consideration, because the slave was not sold to the defendant Locke, but to his sister, and Locke only became bound by his note, if at all; and, secondly, the note, or bill 'single being out of the way, any indebtedness arising upon the original sale of the slave is clearly barred by the statute of limitation, which ivas pleaded and relied upon.

The decree of the chancellor, dismissing the bill, will be affirmed. The complainant will pay the costs of this court, the costs of the court below, as decreed by the chancellor.  