#### GIDEON LOW, *plaintiff in*error, *vs.*HENRY MERRILL, *defendant in error,*

) > *Error to Dane county.*

The date of a promissory note is material, and if altered without the maker’s consent, the note is vitiated, and it makes no difference whether the *time of payment is*accelerated or extended by the alteration.

If a promissory note appears upon its face to have been altered, it is for the hold.er to prove, and not for the maker to disprove that it was altered under circumstances that will make it available.

It is incumbent on the plaintiff to account for a suspicious form or obvious alteration of a note, and unless he adduces evidence to explain the alteration, it is proper for the jury to find for the defendant.

The identity of the note declared upon, is a question for the jury, and testimony upon that subject, and to explain any alteration or suspicious appearance of the note should be received.

If a note has been altered in a material part,it is inadmissible in evidence for any purpose, unless to defeat a claim on the ground of fraud, or to establish usury, or to convict a party of a crime; it cannot be received as evidence on the money counts.

Where the promissory note offered in evidence, appears on its face to have been altered, and the defendant has not denied its execution under oath, still the plaintiff must prove that the alteration was made with the consent of the defendant, before it can be read to the jury.

Although the defendant does not deny the execution of the note under oath, he does not waive any other legal defence, and by his plea he puts in issue the identity of the note declared upon.

This was an action of assumpsit, commenced by Merrill against Low in the Dane District Court.

The declaration contained two counts upon two several promissory notes ; one for §1215 68, dated April 7th, 1842, and the other for $300, dated April 14th, 1838, payable ninety days after date. The defendant pleaded the general issue, but did not deny the execution of either of the notes under oath. At the trial of the cause, the plaintiff offered the following promissory note in support of one 'of the counts of his declaration:

“§300. For value received, I promise to pay to Henry Merrill, or order, the sum of three hundred dollars with interest, ninety days after date.

(Signed) “ G. LOW.”

“ Fon Winnebago,

[March *24,*1838.]

“April 14, 1838.”

It appeared on the face of the note, that the original date, *186March 24, 1838, had been marked wiíh a pon so as io be partly obliterated, and immediately under it was written, *“*April 14, 1838.” The defendant objected to the note as evidence, unless the plaintiff should first prove that the date was altered before it was signed,or afterwards with the consontof the defendant. The court overruled the objection, and permitted the note to be read to the jury. The defendant then offered to prove that the note had been altered by tire plaintiff after it was signed and executed, without the consent of the defendant, but the court refused to permit him to prove these facts; to which decisions of the court, the defendant excepted. The jury returned a verdict in favor of the plaintiff for the amount of both notes and interest, upon which the court rendered judgment. To reverse this judgment. Low has prosecuted this writ of error.

Abbott, for plt’ff in error:

One of the notes.upon which the judgment in the court below was rendered, showed upon its face that it had been altered in i(3 date. It therefore became necessary for the plaintiff to prove that the alteration had been made with the consent of the defendant, before he could bo allowed to read it in evidence. Chitty on Bills, 212; *Johnson vs. The Dulce of Marlborough,H*Starkie’s Rep. 313; 5 Bing. 183.

The alteration of a noto in a materia] part, without the consent of the maker-, invalidates the note; Chilly on Bills, 204; 1 Chitty on Plead. 213; *Masters vs. Miller,*4 Tcnn. Rep. 350; 2 EL Bl. 141; 15 East. 29; 1 Taunt. 20; *Bank of the United States, vs. Russels et als.;*3 Yeats’ Rep. 371; 3 Grand), 37.

When a note has been thus altered in a material part; it is inadmissible in evidence for any purpose whatever in favor of the holder; *Jardín vs Payne,*1 Barn. & Add. 617; 7 B. &. C., 416.

Field, for def’t in error:

The defendant should have denied the execution of the note under cath, before any proof can be required of the plaintiff. *It*has been said, that the signature being genuine, he could not do this. The statute does not require him to deny the signature,merely, but to deny that he executed such a note as is declared upon. The issue then would have been similar to the issue on a plea of *non est factum,*to a speciality. The plea of *non est factum,*does not deny he signature only, but the execution of the instrument in he form in which it is sued on; and it is a good plea where the *sig-**187sature is genuine, if the instrument has been altered: The same principles apply to promissory notos, where there execution is required to be denied under oath. 1 Blackford, 67; 3 do 57.

Our statute says that the instrument shall bo proof that it was so signed or executed, unless the signature or execution is denied under oath. What does this provision moan? Why, that anote purporting to have been executed by the defendants, shall be taken to have been *so executed;*that is, executed precisely asitappoars upon its face to have been done, and as it isdeclared upon, unless-the defence is made in the manner pointed out by the statute.

Whiton, in reply:

We contend, that the note having been altered in a material-part, is void; and that it is not an *instrument*that requires a denial under oath. The defendant is riot bound to disprove, by his own oath or other testimony, the validity of such a note. He cannot deny the signatuie under oath, for that is genuine, but still *he*has a right to *the*common law defences against it, which cannot be shut out from him by a proper construction of the statute.

Opinion of the Court, by

Judge Mii/ler:

This was an action of assumpsit in the District Court of Dane-county, on t*o promissory uotes, given by Gideon Low, the defendant in said court, to Henry MoriJI, the plaintiff therein. The defendant pleaded tho general issue, but did not file an affidavit with his plea, denying the signature to or execution of said notes. When one of the notes was offered to be read in evidence to the jury,it appeared to have been altered in the date, thus: “March 14,1838,” had been first written as the date, and tho word “March” and the figures “ 14” were partly obliterated or defaced, and underneath tho first date, “April 14, 1833,” was written. The defendant then objected to the reading of the note so altcied, in evidence, unless the plaintiff showed that the said alteration had been made before the said note was signed and executed by the defendant, or afterwards with his permission; which objection was overruled by the court, and tho note allowed to be read in evidence.

The defendant then offered to prove that tho date of said note had been altered by the plaintiff, after it had been signed and executed, and without his consent or permission, which said offer of defendant was overruled by the court.

Errors are assigned upon the record, on these two orders of the District Court.

*188The declaration charges the note to have been given on the 14 th day of April, 1838, which the defendant by his plea denied. In every written instrument, the day laid is material and must be proved as laid when the action is brought on the instrument itself; 2 Peake, 19G. If the plaintiff had proven the note to have been given on the 14th of March, it would certainly not be the identical note the defendant had given as laid in the declaration. It is through the note the plaintiff has a right of action; and it is the only medium by which he can recover. The question raised by the issue was, whether or not the defendant promised in the form stated in the declaration; and the substance of the plea is, that according to that form he is not bound or did not promise.

It is conceded that the date of a note is material; and an alteration of the date is an alteration of a material part, which vitiates it, if done without the maker’s consent: Chitty on Bills, 204; *Bank of the United States, vs. Russell and Brown, 3*Yeates, 391; *Masters vs. Miller,*2 H. Black. 141. And the principle is the same whether the day of payment is thereby accelerated or extended; *Stephens vs. Graham,*7 Sergt. & Rawle, 505. To insure the identity, and to prevent the substitution of one instrument for another, is the foundation of the rule, which is necessary to prevent all tampering with written instruments.

In Chitty on Bills, page 212, it is stated, “that with respect to bills and notes, and other negotiable securities, the rule has been laid down, namely, that if the instrument appear on its face to have been altered, it is for the holder to prove, and not for the maker to disprove, that it was altered under circumstances that will make it available.” Jt is incumbent on the plaintiff to account for a suspicious form or obvious alteration of a note, and unless the plaintiff adduces evidence to explain the alteration, it is proper for the jury to find for the defendants; *Johnson vs. The Duke of Marlborough,*2 Starkie R. 363. The identity of the note is a question for the jury, and testimony upon that subject, and to explain any alteration or suspicions, should certainly be received; *Bunker vs. Bleckwell, 2 J. C.*198; Buller’s N. P. *255; Marshall vs. Grugler,*10 Sergt. & Rawle, 164; *Lewis vs. Payne,*8 Cowen, 71; *Gibbs & Rich vs. Osborne, 2*Wend. 555; *Stephens vs. Gorham,*7 Sergt. & Rawle, 505. And if a note has been altered in a material part, it is inadmissible in evidence for any available purpose whatever in favor of the holder, until the alteration *189is satisfactorily explained, unless to defeat a claim on the ground of fraud, or to establish usury, or convict a party of a crime. It cannot be received in evidence on the money counts; Chitty on Bills, 213, and the case there cited.

Abbott & Whiton, for plt’ff in error.

Field &. Botkin, for def5t in error.

It is provided in section 18 of the act concerning testimony and depositions, on page 250 of the Statutes, that “every written instrument purporting to have been signed or executed, by any person, shall be proof that it was so signed or executed, until the person by whom it purports to have been signed or executed shall deny the signature or execution of the same by his oath or affidavit: But this section shall not extend to instruments purporting to be signed or executed by any person who shall have died previous to the requirement of such proof.” This section merely dispenses with proof of the signature or execution of the instrument, unless the party shall deny the same under oath. It was intended for the convenience and relief of the plaintiff. The defendant did not deny the signature or execution by his oath or affidavit, but he did not thereby waive any other of his legal rights at the trial, but proof on the part of the plaintiff of the signature or execution. The note was in the hands of the payee when it was altered or supposed to have been altered, and *it*could not be presumed that, the defendant would be cognizant of a fraudulent or illegel alteration of his note before its presentation at the bar. Before then *the*plaintiff *ought*to have known its suspicious appearance and legal defects; and it was his duty to fortify himself on that point. The signature or execution of the note was not the question in this case, but its identity was made by the plea, an important question for the consideration of the jury.

It is the opinion of the Court that the District Court should have required the plaintiff to account for the alteration of the note, before he should have been permitted to read it in evidence, or have been entitled to a verdict upon it: And as defendant offered to prove more than by law he was required to do, there was error in rejecting his offer. I

Judgment reversed with costs.

Judge Irvin dissented from the opinion of the court.