
    *D. Sayre against Reynolds and Camp, administrators of Brookfield.
    IN ERROR.
    Proof of note bettered or forged, 
    
    THIS cause was tried at January term, 1819, arid a bill of exceptions taken by the defendant, in proper person, The declaration was in the usual form, upon a promissory note, dated 2nd September, 1811. The defendant pleaded the general issue. The bill of exceptions states, that “ the. plaintiffs offered in evidence, a promissory note, and proved the execution of the same, by the subscribing witnesses thereto. The defendant objected to the said evidence.” The court admitted it; the note was read the jury; and the bill of exceptions taken and sealed. The note accompanied the return of the writ, and by it, it appeared that the word first, in the date had been erased, and the word second, written over it; and that several payments had, at different times, been made by defendant upon it.
    
      Scudder, for plaintiff.
    The alteration in this note is in a material part; and if made without the consent of the maker, is a forgery; and as it appears upon the face of it, it ought to have been proved to be done before the signing ; otherwise it is fatal to the claim of the plaintiffs J proving the hand-writing of such a note is not sufficient to make it evidence. 5 Jac. L. Dic. 384. 11 Coke 27. 5 Coke 23. 2 Jac. L. D. 224.
    
      Halsey, in answer.
    The bill of exceptions states that the plaintiff below, proved the execution of the note, and this court on this writ, must infer that it was the legal execution. The variance between the note and the declaration is not fatal: the note is sufficiently stated. An alteration, since it was made, is not to be presumed; it is to be proved by the defendant. Besides, payments have been made on it, for several years; and this shews an acquiescence in the alteration.
    
      
      
         President, &c., of Cumberland Bank vs. Hall, 1 Hal. 215. Den vs. Wright, 2 Hal. 175. Richman vs. Richman, 5 Hal. 117. Vanauken vs. Hornbeck, 2 Gr. 179. Den, Farlee vs. Farlee, 1 Zab. 280. North River, &c. Co., vs. Shrewsbury Church, 2 Zab. 425. Reformed Dutch Church vs. Ten Eyck, 1. Dutch. 40. Hunt vs. Gray, 6 Vr. 227. Crawford vs. Bertholf, Sax. 461. Gest vs. Flock, 1 Gr. Ch. 115. White vs. Williams, 2 Gr. Ch. 385. Goodfellow vs. Inslee, 1 Beas. 355.. Lewis vs. Schenck, 3 C. E. Gr. 459.
      
    
   Opinion of the court.

Southard J.

It is insisted, that the alteration in the note, without the consent of the maker, was a forgey, and made the note void ; and it must be considered as a forgery, until the alteration is accounted for. But however true the law, the argu*ment were better addressed to the jury than the court. The proof of the note as stated in the bill of exceptions, was such as to demand its admission ; after which, its corruption was a fit matter for consideration. But it appears to me, that either as matter of law, or of fact, but little doubt on the subject could be felt by either court or jury. The suit was brought by administrators de bon. non. The alteration could produce no effect on the parties, except to make the note bear interest one day later, and save the defendant from the payment of a few cents; and there were several endorsements on the back of the note, proving that defendant had made several payments upon it, long after its date. Under such circumstances, to presume a forgery, would be a violation of all probabilities.

There must be judgment for the defendant in error.  