
    Stephens against Graham and another.
    In Error.
    
      January.
    
    Apromissó. has been altered without the consent of JJ]® ?n<l<#se“nt’ is thereby ren. though in the dorsee.
    ¡„ point ofiaw note, and it is cour/to the leave it to the jury, whether the alteration of the date was material or immaterial.
    Proof of a note dated the 26th J uly, does not support a declaration stating a note dated on the 25th July.
    ERROR to the District Court of the city and county of Philadelphia, and bill of exceptions to the charge of Court.
    Assumpsit, in the Court below, by Peter Graham and John Graham, trading under the firm of Peter Graham and Co., against Benjamin Stephens as indorser of a promissory note drawn by one John Grant in favour of and indorsed by Benjamin Stephens. The declaration, which contained but one count, stated the note to have been drawn on the 26th day of July, 1814, for 150 dollars, payable in six months after date.
    On the trial the plaintiffs gave in evidence a promissory note, drawn by John Grant in favour of and indorsed by the defendant for 150 dollars, payable in six months after date; but the date was evidently altered so as to make it the 26th July, 1814, and this was admitted by the plaintiffs. But from what date it was altered was not proved ; it being alleged by the plaintiffs, that its original date was the-25th July, 1814, and by the defendant that the original date was the 21st July, 1814. The plaintiffs also proved that they received the note from Grant in payment for goods sold, though at what time or how long after it was drawn, the witness on their behalf could not state, but he stated that it was altared when he received it, though he did not remember saying any thing of it. The handwriting of the defendant was admitted.
    The presiding Judge of the Court below, charged that the case stood with the plaintiffs on the admission of the indorsement. That the first question was, whether the note was altered with the privity of the defendant, for then he cannot maintain his defence, that it was altered before it came to the plaintiffs. He asked what motive there could be to alter the note: because he said there might be some motive; and whether there could be any motive, if altered from the 25th to the 26th July. Pie directed the jury to inquire whether it was altered from the 21st or 25th to the 26th July, and if Grant did alter it, then to inquire at what time it was altered. The Court then put it to the jury to say, whether the alteration was material, if made from the 25th July, 1814, to the 26th July, 1814. That if the jury found the note was altered with the privity of the defendant, then to find for the plaintiffs. That if it was altered from the 21st July, 1814, to the 26th July, 1814, without the privity of the defendant, to find for the defendant: if altered from the 25th July, 1814, to the 26th July, 1814, without the privity of the defendant, to find for the defendant, if in their opinion such alteration was material; if immaterial to find for the plaintiffs : and in that case to find the fact specially, and to find from what day the note was altered. To this charge the defendant excepted.
    The jury found a verdict for the plaintiffs, for 197 dollars 87 cents, and gave it also as their opinion, that the note, on which this action was founded, was altered with the knowledge of the defendant. .Of this opinion of the jury, an entry was made on the record, returned to this Court with the bill of exceptions. r
    
      Keemle, for the plaintiff in error.
    
      Lowber, contra.
   The opinion of the Court was delivered by ■

Duncan J.

The defendants in error, plaintiffs below, declared on a promissory note for 150 dollars payable six months after date, drawn by one John Grant, and made payable to Benjamin Stephens, who indorsed it to the plaintiffs below, and dated on the 26th July, 1814. The date was evidently altered, but whether the alteration was from the 21st or the 25th, was not fully in proof. The direction of the Court was a very special one'.

It is contended by the defendants in error, that the alteration of the date from the 25th to the 26th, is altogether immaterial, as it became due on Sunday ; atad by the custom of merchants in this city, such note would be considered as payable on the Saturday preceding. So that whether payable on the Saturday or Sunday, the days of grace would be the same, and no injury done. The effect of an alteration of all written instruments is the same. All that are altered or erased in a material part without the parties’ consent are vitiated. Master v. Miller, 4 T. R. 320, and 1 Anstruther, 225, in the Exchequer Chamber. The contrary opinion of Judge Buller, as to the difference between deeds and other writings, was opposed by all the other Judges of Westminster Hall. Negotiable paper, which passes from hand to hand, was considered by eleven Judges to require greater nicety and circumspection than bonds, which are generally confined to the custody of one person. It cannot be said, that the date forms no part of the bill; nor that it forms an immaterial part. If it were not a material part, the note might not be destroyed, according to Trapp v. Spearman, 1 Esp. 57. It does not depend on the accelerating or extending the day of payment, or increasing or decreasing the sum, but upon the idefatity ; to insure the indentity, and prevent the substitution of one instrument for another, (Sanderson v. Symond, 1 Brod. & Bing. 134,) is the foundation of the rule, and it is a wise rule, as it prevents all tampering with written instruments. For though the alteration in an obligation from pounds into, dollars, from sterling pounds into current pounds, although such alteration could not do any possible injury to the obligor, still it avoids the bond. So if the sum were lessened. The day on which this note became due, in point of law, was six months after date. The custom of demanding it on Saturday, when it becomes due on Sunday, has relation to the days of grace, and not to the legal day of payment. The days of grace are gratuitous only, in contemplation of law, though the course of usance at particular places will be taken notice of by the Court. But this would not affect the Statute of Limitations. When would the time begin to run ? Certainly from the day on which, by its terms, it became due. Like the time of grace allowed by Courts for special bail to surrender their principal. At law the party is bound, and could not take advantage of a surrender after the return of a capias ad satisfaciendum, by pleading. It is by motion to the Court. The cases which have been relied on by the defendants are, where the addition was, most probably, not written under the acceptance, but a memorandum afterwards where to find the acceptor, where the bill became due, and no part of the acceptance. If this were not so, according to the opinion of the Court, in Tidmarsh v. Grover, 1 Maule & Selw. 735, they were wrongly decided. The date of the instrument ought to be clearly expressed. If it has no date, then the time will be computed from the day on which it issued. Chitty on Bills, 43. The day of the date is excluded, in the computation of a bill payable after date. Chitty, 138. The best and the safest is the general rule, that where a bill is altered in any material respect, as for instance the date or sum, without consent of the drawer, it will discharge him, although the bill afterwards come into the hands of an innocent indorsee not aware of the change. Chitty, 62. But what removes every doubt is, that it is laid in the declaration as given on the 26th, and in every written instrument the day laid is material, and must be proved as laid, where the action is brought on the instrument itself; not where laid under a videlicet, and the action is not founded on the writing. 2 Peake, 196. Now here the'allegation is, that the note was given on the 26th. Proof that it was given on the 21st or 25th, would have been a material variance, and such the defendants in error admitted their case to be. It is not the identical note the party has given. The note here is the only medium by which the plaintiffs could recover. It is through that they derive a right of action. The question is, whether or not the defendant below promised in the form stated in the declaration, and the substance of his plea is, that according to that form he is not bound to pay.

I regret much the necessity of reversing this judgment, because we see that from the opinion of the jury, the question was altogether immaterial, as they found that the alteration was made with the privity of the defendant. Had this been, or could the Court have put it into the shape of, a special verdict, which I have struggled to do, all would be right; but I fear the danger of innovation in favourable cases, and of receiving an opinion of a jury attached to a general verdict as a foundation for converting it into a special verdict. There was, therefore, error in that part of the opinion of the Court directing the jury to find for the plaintiffs, if they found the alteration to be from the 25th to 26th, if in their opinion it was immaterial. It was a question of law, and in my opinion, was such an alteration as, if done without the consent of the drawer, avoided the note ; but at all events, as the note was set out as dated on the 26th, proof of its being on the 21st or 25th, did not support the declaration.

Judgment reversed, and a venire facias de novo awarded.  