Ogle v. Graham

Oae who executes a note as a surety, and giv^s it to the principal to be executed by him, and delivered to the payee, but who before so doing alters the amount mentioned in the note from a greater to a less sum, cannot take advantage of such at, teration upon the plea of non edfucfnm. Nor does it affect the validity of a note, that it was executed by ope of the payors in the presence of one witness, and by the other, in the presence of another; although it purports to be executed by both, in the presence of two subscribing witnesses.

IN ERROR, Error to Somerset county. brought this action of debt, upon a note under seal, against Adam Johnston and Alexander Ogle. The writ was served upon Ogle alone, who appeared and plead non est factum. Upon this issue the cause was tried. The evidence given made out this case: Johnston was about to borrow four hundred dollars from the plaintiff Graham, and Ogle agreed to be his security: a joint and several note for that amount was written and signed by Ogle in the presence of one subscribing ■witness, and given to Johnston, who afterwards, not in the presence of Ogle or Graham, struck out “four hundred dollars/’ and interlined in lieu thereof “three hundred and twenty-three dollars;” then executed it himself, in the presence of another subscribing witness, and delivered it to Graham, for a valuable consideration. The defendant’s counsel requested the Court to charge the jury, 1. If they believe that the erasure and interlineation were made after the note was executed by Ogle, and without his knowledge or consent, there can be'no recovery against him. 2. If the subscribing witnesses were not both present when each of the defendants executed the note, the plaintiff cannot recover. The Court ( Young, president,) charged the jury in substance, •that the alteration of the note, without the knowledge or consent of Ogle, rendered it void as to him; unless the jury believed that he had given authority to Johnston to alter it; in which case he was liable to pay it as altered. The second point the Court answered in the negative. The jury found a verdict for the plaintiff. If, after the execution of a bond, an alteration be made, which is material, without the consent of all parties, it avoids it. Consent must be proved, not conjectured. Barrington v. The Bank of Washington, 14 Serg. & Rawle, 434. An alteration in the sum, although' for the benefit of the obligor .avoids the writing. Markham v. Gonaston, Cro. Eliz. 637. Lev. 35. Dyer, 361. Stephens v. Graham, 7 Serg. & Rawle, 508. The reason of this is, that the law presumes the alteration to be beneficial to him who makes it, although it may not appear to be so; such as an alteration of a note from one hundred, to ninety-nine dollars, for the purpose of giving jurisdiction to a justice of the peace, that the obligee might thereby hasten his judgment, which would clearly avoid the note. If the obligee procure persons to put their names as witnesses to a bond, it renders it void, without a new delivery. Marshall V. Gougler, 10 Serg. & Rawle, 164. Babb v. Clemson, Ibid. 434. Pigott’s case, 11 Coke, 27. The note upon which this suit is brought, was not altered after its delivery, nor was it altered by the payee; which distinguishes it from those cited by the plaintiff in error. Nothing but a fraudulent alteration of a paper, by a party to it, will avoid it. An alteration by one who is not a party will not avoid it. Chit, on bills, 131 — 6—7. Hunt v. Adams, 6 Mass. 519. But in this case Johnston was authorized by Ogle to make the alteration: such is the legal inference from the nature of the obligation, and the acts of the payors. Smith v. Croker, 5 Mass. 538.