
    Etherton Wilson vs. Lawson F. Henderson.
    Every alteration made by the holder of a note after the delivery thereof to him, does not necessarily avoid the note ; if a note be delivered to the holder in blank, as to the time of payment, it is competent for him, in the absence of any agreement on that subject, to fill up the blank; and such alteration would not avoid the note; so also any alteration made by the holder of a note, with the consent of the maker, will not avoid the note.
    It was therefore held erroneous in the circuit court to charge the jury “ that if an alteration of the note sued on was made by the holder after its delivery to him by the maker, the holder could not recover as the testimony tended to show that the note was delivered in blank as to the time of payment, and the alteration alleged was as to that particular.
    It seems that it is a presumption of law that any material alteration of a note appearing upon its face, was made after it went into the hands of the holder, and it is for him to show that it was made under circumstances which justify it. Whether this rule is of universal application, — Quare ?
    
    Assuming that the law presumes that any alteration of a note appearing on its face was made after delivery, such presumption must be very much weakened, if not destroyod, when the alteration operates prejudicially to the holder; as where an apparent alteration in the date of payment of a note postpones its payment one year.
    The jury have a right to determine, where an alteration appears on the face of a note, whether it was made before or after delivery, or with or without the consent of the maker; the whole question of alteration is for them to decide ; and it seems they may from the nature of the alteration itself though one apparent on the face, of the note, determine that it was made before delivery, or with the maker’s consent.
    In error from the circuit court of Madison county; Hon. John H. Rollins, judge.
    Etherton Wilson sued Lawson F. Henderson in an action on a promissory note in the following words and figures :
    “$1000. Brandon, Mi. June 9, 1837.
    “Twelve months after the 1st day of January, 1838, we, Thomas Sanders, principal, and Thos. J. Smith, Lawson F. Henderson, and Archd. Clark, securities, jointly and severally, promise to pay to the Mississippi and Alabama Railroad Company, one thousand dollars, for value received, negotiable and payable at their banking house in Brandon.
    Thos. Sanders,
    Thos. J. Smith,
    Lawson F. Henderson,-
    Árchd. Clare.”
    • Indorsed thus — “ Pay Etherton Wilson, without- recourse — without recourse upon the bank. Z. P. Wardell, Cashr."
    
    The plea was non assumpsit; a trial was had, and the jury found for the defendant. From the bill of exceptions it appears that on the trial the plaintiff offered in evidence the note as above. The bill of exceptions then recites as follows, viz.:
    “ It appeared from the face of the note, and it was proved by a witness, that in his opinion, in that part of the note which reads, “ Twelve months after the 1st day of January, 1838,” the space now occupied by the figure “8” had been filled before the erasure by the figure “ 7” ; that the figure “ 7” seemed to have been erased, and the figure “ 8” inserted in its place,, and that the erasure of the figure first written seemed to have been done with a sharp instrument.
    “It was proved on the part of the plaintiff, by a competent witness, that’ witness saw the note while the trade for it was going on between plaintiff and Sanders, the principal, during which negotiation the note was transferred and delivered to plaintiff by Sanders, said note being then signed with the names of the several makers whose names now appear to it. That the note was at that time, when witness saw it, in blank as to the following words and figures — “Twelve” — “1st” — “January”— “1838,” — and that said several words and figures, as they now appear on the face of the note, are in the handwriting of the plaintiff.”
    And this was all the evidence as to the alteration.
    The court below instructed the jury as follows :
    
      “ If the jury believe from the evidence that the note was blank at the time of its delivery to the plaintiff, and was then filled, or the filling of the blanks altered by Sanders, or by the plaintiff, under the direction or sanction of Sanders, the note is still available; but if the alteration was made by the plaintiff, after its delivery to him by Sanders, the plaintiff cannot recover, the presumption of law being that any material alteration which appears upon the face of the note, was made after it went into the hands of the plaintiff, and it is for him to show circumstantially, or otherwise, that such alterations were made under circumstances that render the note still available.”
    To which the plaintiff excepted at the time.
    The verdict being for the defendant, the plaintiff moved to set it aside, and for a now trial.
    1st. Because the court erred in giving this instruction.
    2d. Because the verdict is contrary to law and evidence; which motion was overruled.
    And thereupon the plaintiff sued out this writ of error.
    
      A. H. Handy, for plaintiff in error.
    1. The instruction to the jury was erroneous in these particulars :
    1st. In the proposition that if the alteration in the note was made by the plaintiff after its delivery to him by Sanders, the plaintiff cannot recover. This was wrong, for though made by the consent of Sanders and the other makers, after delivery, under the instruction, such alteration would still avoid the note. Violett v. Patton, 5 Cranch, 142; Story on Prom. Notes, § 10.
    2d. In the assertion that every material alteration which appears upon the face of a note is made after it goes into the holder’s hands. This is not law. 1 Greenl. Ev. § 565; Johnson v. Duke of Marlborough, 3 Eng. Com. Law Rep. 360; Taylor v. Mosely, 25 Eng. Com. Law Rep. 396; Cariss v. Tatter sail, 40 lb. 678; Bailey v. Taylor, 11 Conn. 531; Cumberland, Bank v. Hall, 1 Halst. 215; Hejfelfinger v. Shntz, 16 Serg. (to R. 44; Bowers v. Jewell, 2 New Hamp. R. 543; Oakey v. Wilcox, 3 How. 330. The jury should have been left unembarrassed by presumptions to determine upon the whole question of alteration, as to its time, and by whom made.
    3d. In leaving the question of the materiality of the alteration to the jury, without stating what constituted a material alteration; the jury might have thought the filling the blanks a material alteration; this was erroneous. 1 Peters, 552; 7 Serg. & R. 508; 2 New Hamp. 543.
    4th. In not stating that if the alleged alteration tended to diminish instead of to increase the rights of the holder, the law will not impose on him the burden of accounting for it. Bayley v. Taylor, 11 Conn. 531; Heffelfinger v. Shutz, 16 Serg. & R. 44; 3 Phil. Ev. (Cow. & Hill’s notes,) 1317.
    5th. In stating that it was incumbent on the plaintiff to show that the alteration was made under circumstances that render the note still available. This, however true as a general rule, was not applicable in this case, because the alteration was prejudicial to the holder. 11 Conn. 531; 16 Serg. & R. 44; 2 New Hamp. 543; 1 lb. 145; Henman v. Dickinson, 5 Bing. 184; 7 How. 414; Oakey v. Wilcox, 3 How. 330.
    6th. The court should have told the jury what circumstances would render the note available. 1 Peters, 552; 7 Serg. & R. 508.
    2. If the instruction were correct the verdict is contrary to the evidence; as that, when taken together, shows that the alteration was in accordance with the intention of the parties.
    
      W. R. Hill, for defendant in error.
    1. The instruction that the presumption of law that every material alteration appearing on the face of a note was made after it went into the holder’s hands, is correct. 6 How. 67; Johnson v. Duke of Marlborough, 2 Stark.- R. 313; Henman v. Dickinson, 5 Bing. 183; 15 Com. Law Rep. 409; Taylor v. Mosely, 6 Carr. & Pay. 273; Cariss v. Tattersall, 2 Man. & Gr. 890; Morris's Dessor v. Vanderen, 1 Dallas, 67; 10 Serg. & R. 64; lb. 170; Davis v. Jenny, 1 Metcalf, 221; 2 Wend. 555 ; Prevost v. Gratz, 1 Pet. C. C. Rep. 364; Commercial and Railroad Bank v. Bum, 7 How. 414.
    
      2. Even if the instruction were erroneous, the verdict on the whole case is right, and will not be disturbed. 4 How. 230; 4 S. & M. 193; 5 How. 495; Crocket and Harper v. Young and Berry, 1 S. & M. 241.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was an action on a promissory note, made by Thomas Sanders, Thomas J. Smith, Lawson F. Henderson and Archibald Clark, payable to the Mississippi and Alabama Railroad Company, and by the cashier indorsed to the plaintiff. The defence set up is, that the note was altered in a material part, and is therefore not binding on the parties.

The evidence on this point is not very satisfactory. One witness proved that in his opinion the figure 7 had been erased and the figure 8 inserted, so as to make the note read, “ Twelve months after the 1st day of January, 1838,” instead of “ Twelve months after the 1st day of January, 1837.” If such alteration was made, the note was made payable by it twelve months later than it would have been without it. Another witness testified that he saw the note while the trade was going on between Sanders, the principal maker, and the plaintiff, during which negotiation it was transferred by Sanders to plaintiff, when it was signed, but blank as to the time of payment, and that the words “ Twelve,” “ 1st” “ January, 1838,” have been since inserted, and in the handwriting of the plaintiff.

The court therefore charged the jury, that “if they believed from the evidence that the note was blank at the time of its delivery to the plaintiff, and was then filled, or the filling of the blanks altered by Sanders, or by the plaintiff, under the direction or sanction of Sanders, the note is still available. But if the alteration was made by the plaintiff after its delivery to him by Sanders, the plaintiff cannot recover, the presumption of law being that any material alteration which appears upon the face of the note, was made after it went into the hands of the plaintiff, and it is for him to show circumstantially, or otherwise, that such alterations were made under circumstances that render the note still available.”

In giving this charge the court went too far. It docs not follow as a legal consequence, that if the alteration was made by the plaintiff after the delivery of the note, it was sufficient to avoid the note. The testimony tended to show that it was delivered to the plaintiff in blank, as to the time of payment. If so, it was surely competent to fill it up in the absence of any agreement on that subject. Surely, no principle is better settled than that parties who sign a paper in blank, for the purpose of having it filled up as a note, thereby confer authority on the party to whom it is delivered to fill it tip. If these parties delivered this note in blank, as to the time of payment, they thereby left it with the plaintiff to fill it np as he might think proper. Such filling up of blanks was not such an alteration as would avoid the note.

The proposition contained in this part of the charge is too broad in another respect. The plaintiff was at liberty to make any alteration which Sanders authorized; but the charge is without qualification. It assumes that every alteration would avoid the note, even though Sanders may have directed it.

Another question is made which is not free from difficulties. It is this : Is it a presumption of law that any material alteration of a note, appearing upon its face, was-made after it goes into the hands of the payee, and is it for him to show that it was made under circumstances which sustain it 1 The authorities are both ways, and hence it is difficult to extract from them the'true rule. The question was very fully considered in the supreme court of Connecticut, in the case of Bailey v. Taylor, in which the evident leaning of the decision is against the presumption. Still it may be doubted whether the authorities cited by the court would not have better sustained an opinion the other way. The court said, circumstances may be such as may require an explanation from the plaintiff. This is surely true. And it must be also clear that the whole question of alteration is for the jury. It is for them to determine whether it was made before, or after delivery; or whether it was with or without the consent of the maker. Assuming that the law presumes that any alteration appearing on the note, was made after delivery, such presumption must be very much weakened, if not destroyed, when the alteration operates prejudicially to the holder. The law founds its presumptions on motives which are supposed to actuate mankind, and no man is supposed to have acted against his interest. The jury would be authorized to give to such a circumstance its due weight. In the case of the Railroad Bank v. Lum, 7 Howard, 414, we held that it was incumbent on the plaintiff to account for an alteration. There may be exceptions to the rule ; but the present case does not require that we should recede, even if we were disposed to do so.

Judgment reversed.  