
    MITCHELL WARREN vs LOWDER LAYTON.
    A party cannot recover on an altered note, without explaining the alteration.
    But he may recover on the common counts as for money lent.
    This was an action of assumpsit on a promissory note. One coul of the declaration stated the note as dated the 8th of January, 1831, and another as dated the 8th of January, 1835; and there were the common counts. The pleas were the general issue; payment; discount and the act of limitation.
    The note was produced much mutilated. The defence was, that it had been altered from 1S35 to 1831. The defendant admitted that he gave his note to plaintiff in 1835, for money lent.
    It was contended on the part of the defendant that any alteration of a note avoids it. If the alteration appear on the face of the instrument the plaintiff must explain it, or he cannot recover. The effect of this alteration was to increase the interest. (16 Law. Lib. 175-7; 4 Term Rep. 320-30-31; 2 Stark. Ev. 294; 3 Yeates’ Rep. 391; 7 Serg. & Raiole 505; Stevens vs. Graham; 1 Chit. PI. 62.) If the note was dated in 1831, it was barred by limitation; if in 1835 it was vitiated by the alteration, and plaintiff could not recover on either count.
    For the plaintiff it was replied that there was no alteration of the note; that if there was, it would not destroy the instrument, unless it appears that the party suing upon it made the alteration; and if the note itself were vacated by an acknowledged alteration made by the plaintiff, he was still entitled to recover on the common counts for money lent.
    
      Cullen, for the plaintiff.
    
      Ridgely, for defendant.
   The Court

charged that the plaintiff could not recover on the first count, stating the note as dated in 1831, for that was barred by limitation. That though the act of limitation would not apply to the second count, plaintiff could not recover on that if the note was dated in 1835 and altered to 1831, for that avoids the note, unless satisfactorily explained by the plaintiff. The note being altered in his possession, puts him to the necessity of such explanation. But if neither of the special counts were proved, the plaintiff was at liberty to re-lsort to his common counts, and could recover if he had satisfactorily [proved the lending of the money.

| The plaintiff had a verdict; and there was a motion and rule to [show cause why it should not be set aside for misdirection on the [last ground. This motion was not further prosecuted.  