
    No. 1679.
    A. Bernstien v. E. Ricks.
    The erasure of a word on the face of a promissory note, and the substitution of another word therefor, may be explained by evidence; and the notary, who drew the act of mortgage to secure tha payment of the note, is a competent witness for the purpose.
    Where a promissory note is prescribed on its face, and the plea of prescription is filed for the first time in the Supreme Oourt, the case will be remanded to the lower court to enable the holder to introduce evidence, showing an interruption of prescription.
    APPEAL from the District Court, Parish of St. Helena, Ellis, J.
    
      E. J. Ellis, for plaintiff.
    
      S. E. Hunter and W. A. Perrin, for defendant.
   Howei/l, J.

This is an action to recover of the maker the amount of a promissory note, with a recognition of a mortgage, executed to secure its payment, in answer to which the defendant, besides the .general issue, denies his signature to the obligation sued on.

After the note was received in evidence without objection, the defendant objected to the admission of the act of mortgage, on the grounds that it was inadmissible under the pleadings, and did not correspond with the one declared on; and to the introduction of the depositions of the notary, before whom the act was passed, on the grounds that parol evidence is inadmissible to contradict or vary a written instrument; that a notary could not be allowed to explain, vary or contradict his own act, and that in the absence of any allegation of error or fraud no evidence could be received to show that the act of mortgage was different from what it purported to be. It appears that the word ‘ maturity ’ in the note had been erased and the word ‘ date ’ interlined, while the act of mortgage described the note as bearing interest from maturity..

We consider that it was competent for the erasure and in torlineation in the note to be explained or accounted for, and that the notary was a competent witness for tlm purpose. This .being explained, as .it was satisfactorily done by him, the note corresponded with the act of mortgage offered, and there was no contradiction or varying; the facts as they existed were shown. • •

After the note and act were prepared, the parties caused the change in the note to be made, and the notary neglected to make the corresponding change in the act of mortgaged '

Judgment affirmed.

On Rehearing.

Labauve, J.

In this ease a rehearing has been granted on the plea of prescription, filed in this court.

The plaintiff claims of the defendant the sum of $2,000, with interest, upon a note of the following tenor:

“$2,000. New Orleans, June 2, 1860,

One year after date, I promise to pay to the order of myself two thousand dollars, value received, with interest, at the rate of eight per .cent, per annum from date, until paid.

(Signed) , Edward Rioks. ”

The petition and citation were served on the 12th April, 1867.

It is clear that the note sued upon is prescribed on its face, and we have seen nothing in the record showing an interruption of prescription, and as this plea was made in this court, we think justice requires the remanding of the case to give an opportunity to the plaintiff to show interruption or suspension of prescription.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and avoided, and that our former decision be set aside. It is further ordered and decreed that this case be remanded, to be proceeded in according to law, and that the plaintiff and appellee pay costs of appeal,  