ant's part is a question for the jury.426 But negligence on the part of a bona fide holder will not defeat his right to recover, where the maker has made the alteration possible by his own negligence, and the burden is on him in such case to show the plaintiff's knowledge of the alteration.427

Alteration-How Pleaded.

429

§ 1783. The defendant may set up the alteration of a bill under a plea of general issue.28 But if the declaration is upon the instru ment as originally drawn, the alteration should be specially pleaded.* And, where the acceptor of a bill claims his discharge by an alteration in the date of the bill, he must aver that it was altered after the acceptance.430 So, if the maker sets up the want of a stamp on the altered instrument, he must show in his plea that it could not have been restamped, as well as that it was not.431 And, if he avers that

it was altered by the addition of other signatures, he must show that this was done without his consent.432

Presumption as to Alterations.

§ 1784. The questions whether there has been any alteration, and, if so, when it was made, and by whom, and with what intention, are all questions of fact for the jury.433 So, it is for the jury to deter

426 Hardy v. Bank, 51 Md. 562. It is not negligence to give a check for cash to a stranger who afterwards raises it. National Bank of Virginia v. Nolting, 94 Va. 263, 26 S. E. 826.

427 Woolfolk v. Bank, 10 Bush (Ky.) 504.

428 Byles, Bills, 328; Chit. Bills, 208; 2 Daniel, Neg. Inst. 386; Cock v. Coxwell, 2 Cromp., M. & R. 291, 4 Dowl. 187, 1 Gale, 177; Calvert v. Baker, 4 Mees. & W. 417, 7 Dowl. 17; Knight v. Clements, 8 Adol. & E. 215; Hirschman v. Budd, L. R. 8 Exch. 171; Boomer v. Koon, 6 Hun (N. Y.) 645; Lincoln v. Lincoln, 12 Gray (Mass.) 45. And see Leslie v. Emmons, 25 U. C. Q. B. 243. And he may prove the alteration, in Delaware, without the statutory affidavit denying his signature. Hollis v. Vandergrift, 5 Houst. (Del.) 521.

429 Byles, Bills, 329; Hemming v. Trenery, 9 Adol. & E. 926, 1 Perry & D. 661; Mason v. Bradley, 11 Mees. & W. 590; Parry v. Nicholson, 13 Mees. & W. 778.

430 Langton v. Lazarus, 5 Mees. & W. 629. 431 Bradley v. Bardsley, 14 Mees. & W. 873. 432 Cotten v. Williams, 1 Fla. 37.

433 Chit. Bills, 219; 2 Pars. Notes & B. 576; Leykariff v. Ashford, 12 Moore,

erasure. 435

mine the time and circumstances in which a memorandum was made at the foot of a note; 434 or whether a mark on the note is a blot or an Parol evidence is admissible to show the circumstances of making an alteration.436 And where words appear in a different ink and handwriting from that of the maker, and are declared by the maker to be an alteration, the question must be explained by the evidence, and cannot be decided by inspection by the court.437 It has been held that there is no presumption that an alteration was made at or before the time the paper was executed,438 or after its execution. 439

On the other hand, some cases hold that it was prima facie before execution of the paper.440 But other cases hold, with more apparent reason, that an alteration apparent on the face of a note was made

281; Knight v. Clements, 8 Adol. & E. 215; Bishop v. Chambre, Moody & M. 116; Newman v. Wallace, 121 Mass. 323; Cumberland Bank v. Hall, 6 N. J. Law, 215; Gooch v. Bryant, 13 Me. 386; Crabtree v. Clark, 20 Me. 337: Gillett v. Sweat, 6 Ill. 475; Hunter v. Parsons, 22 Mich. 96; Bailey v. Taylor, 11 Conn. 531; Wallace v. Wallace, 8 Ill. App. 69; Wilson v. Henderson, 9 Smedes & M. (Miss.) 375; Commissioners of Poor of Horry Dist. v. Hanion, 1 Nott & McC. (S. C.) 554; Commercial & Railroad Bank of Vicksburg v. Lum, 7 How. (Miss.) 414; Farnsworth v. Sharp, 4 Sneed (Tenn.) 55; Vance v. Collins, 6 Cal. 435; Jones v. Ireland, 4 Iowa, 63; Cole v. Hills, 44 N. H. 227; Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527; Bank of Cass Co. v. Morrison, 17 Neb. 343, 22 N. W. 782; Martin v. Kline, 157 Pa. St. 473, 27 Atl. 753; Yellow Medicine Co. Bank v. Tagley, 57 Minn. 391, 59 N. W. 486. 434 Tuckerman v. Hartwell, 3 Me. 147.

435 Clark v. Eckstein, 22 Pa. St. 507.

436 Heywood v. Perrin, 10 Pick. (Mass.) 228.

437 Sheldon v. Hawes, 15 Mich. 519. And it may go to the jury on such evidence in the instrument. Taylor v. Mosely, 6 Car. & P. 273. But there must be some evidence to go to the jury. Clark v. Eckstein, 22 Pa. Sť. 507. And mere marks indicating a change in the number of a bond are not sufficient evidence. Birdsall v. Russell, 29 N. Y. 220.

438 Ely v. Ely, 6 Gray (Mass.) 439.

439 Cumberland Bank v. Hall, 6 N. J. Law, 215; Bailey v. Taylor, 11 Conn. 531.

440 Franklin v. Blake, 48 Ohio St. 296, 27 N. E. 550; Newman v. King, 54 Ohio St. 273, 43 N. E. 683. If the instrument is not on its face suspicious, Farnsworth v. Sharp, 4 Sneed (Tenn.) 55; or in the case of a marginal memorandum, Fletcher v. Blodgett, 16 Vt. 26; or an alteration in the printed form only, Corcoran v. Doll, 32 Cal. 82; Paramore v. Lindsley, 63 Mo. 63; or a sealed note, Pullen v. Shaw, 14 N. C. 238.

prima facie after the instrument was executed, the burden being on the holder to show the contrary.441 Where a bill is altered after its execution, the presumption is that it was altered by the holder.442 § 1785.

443

Where an alteration is not apparent on the face of the instrument, the burden of proof is on the party alleging it.*** But if the defendant sets up an alteration apparent on the note, the burden is on the plaintiff to show that the note is in the form in which it was originally delivered.*** Where the alteration appears on the face of the paper, the holder must explain it, and show that it was made under such circumstances as not to vitiate the instrument;

445

441 Hills v. Barnes, 11 N. H. 395; Heffner v. Wenrich, 32 Pa. St. 423; Walters v. Short, 10 Ill. 252. And this is generally so, by implication at least, wherever the holder is put to the burden of explaining an apparent alteration.

442 Bowman v. Mitchell, 79 Ind. 84; Cochran v. Nebeker, 48 Ind. 460; Porter v. Doby, 2 Rich. Eq. (S. C.) 49; Burwell v. Orr, 84 Ill. 465; White v. Hass, 32 Ala. 430.

443 U. S. v. Linn, 1 How. 104; Davis v. Jenney, 1 Metc. (Mass.) 221; Odell v. Gallup, 62 Iowa, 253, 17 N. W. 502; Meikel v. Savings Inst., 36 Ind. 355; Bumpass v. Timms, 3 Sneed (Tenn.) 459; Schroeder v. Webster, 88 Iowa, 627, 55 N. W. 569; Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465, 32 N. E. 1058.

444 Simpson v. Davis, 119 Mass. 269; Wilde v. Armsby, 6 Cush. (Mass.) 314; Cape Ann. Nat. Bank v. Burns, 129 Mass. 596; Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527.

445 Byles, Bills, 329; Benj. Chalm. Dig. art. 249; Chit. Bills, 217; 2 Daniel, Neg. Inst. 430; 2 Pars. Notes & B. 577; Johnson v. Marlborough, 2 Starkie, 313; Henman v. Dickinson, 5 Bing. 183, 2 Moore & P. 289; Ely v. Ely, 6 Gray (Mass.) 439; Hill v. Cooley, 46 Pa. St. 259; Dodge v. Haskell, 69 Me. 429; Smith v. Ferry, 69 Mo. 142; Elbert v. McClelland, 8 Bush (Ky.) 577; Frazer's Adm'rs v. Frazer, 13 Bush (Ky.) 399; Paine v. Edsell, 19 Pa. St. 178; Willett v. Shepard, 34 Mich. 106; Page v. Danaher, 43 Wis. 221; Barclift v. Treece, 77 Ala. 528; Farnsworth v. Sharp, 4 Sneed (Tenn.) 55; Hatch v. Dickinson, 7 Blackf. (Ind.) 48; Justus v. Cooper, Id. 7; Whitmer v. Frye, 10 Mo. 348; Wheat v. Arnold, 36 Ga. 479; Daniel v. Daniel, Dud. (Ga.) 239; McElroy v. Caldwell, 7 Mo. 587; Commercial & Railroad Bank of Vicksburg v. Lum, 7 How. (Miss.) 414; Low v. Merrill, 1 Pin. (Wis.) 340; Glover v. Gentry, 104 Ala. 222, 16 South. 38; Smith v. Eals, 81 Iowa, 235, 46 N. W. 1110; Croswell v. Labree, 81 Me. 44, 16 Atl. 331; National Ulster Co. Bank v. Madden, 114 N. Y. 280, 21 N. E. 408; Gowdey v. Robbins, 3 App. Div. 353, 38 N. Y. Supp. 280; Nagle's Estate, 134 Pa. St. 31, 19 Atl. 434; Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 295; Kennedy v. Moore, 17 S. C. 464; Elgin v. Hall, 82 Va. 680; Hodnett's Adm'x v. Pace's Adm'r, 84 Va. 873, 6 S. E. 217.

especially where it is of a suspicious character and beneficial to the holder.446 So, where it is in a different handwriting from the rest of the paper. 447 But the mere fact that part of an indorsement is written in different ink will not throw on the holder the burden of explaining it.448 A material alteration raises the presumption of fraud, and the holder will not be relieved from explaining it by a restoration of the paper to its original form.449 Even where the alteration was made by a stranger, the burden of proof is on the holder, 450 as well as the burden of proving that it was made by consent.1 451 But the consent of a maker will be presumed where the change was not apparent on the face of the paper, and was made while the paper was in the hands of another maker, and before it was issued.452 If no alteration is apparent on the face of a note, it is admissible without proof that it had not been altered, notwithstanding some evidence that a note of like amount had been altered by the holder. 453 An interest clause, written in different ink and handwriting, will not throw upon the holder the burden of proving that there was no alteration.* So, an apparent change in the date by writing one figure over another will not be presumed to be a forgery.455 And the holder need not explain an apparent change in the date of an indorsement nor the erasure of an indorsement.457

454

456

446 Huntington v. Finch, 3 Ohio St. 445.

447 Simpson v. Stackhouse, 9 Pa. St. 186; McMicken v. Beauchamp, 2 La. 290; Small v. Sloan, 1 Bosw. (N. Y.) 352..

448 Wilson v. Harris, 35 Iowa, 507.

449 Robinson v. Reed, 46 Iowa, 219.

450 Davis v. Carlisle, 6 Ala. 707.

451 Humphreys v. Guillow, 13 N. H. 385.

452 Eddy v. Bond, 19 Me. 461.

453 Lowman v. Aubery, 72 Ill. 619.

454 Jones v. Ireland, 4 Iowa, 63.

But the addition of an interest clause raises

a presumption of fraud. Long v. Mason, 84 N. C. 15.

455 Sayre v. Reynolds, 5 N. J. Law, 737.

456 Sibley v. Fisher, 7 Adol. & El. 444.

457 Finney v. Turner, 10 Mo. 207; Hayden v. Goodnow, 39 Conn. 164.

But

see, contra, in order to rebut the presumption of payment by such indorser, Peel v. Kingsmill, 7 U. C. Q. B. 364.

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§ 1786.

Alteration-How Proved.

459

The circumstances under which certain words were written may be shown to prove that they were an alteration or to disprove it.458 So, it may be shown that the instrument was in the same condition shortly after its date and before suit was brought.* And a memorandum taken from a bill book of the witness is admissible evidence of an alteration, the witness having no recollection apart from his own memorandum made at the time.460 But the general accuracy of a book entry should be shown in order to make it admissible.**1

Expert evidence is admissible as to the genuineness of a bank note without proof of the signatures of the officers. 462 And the defendant may show that he never signed but one note like that in suit, and that one differed in a material respect.163 It may even be shown that former notes between the same parties (of which the note in suit was a renewal) had been altered, as tending to prove the alteration of the note in suit and to support suspicious erasures apparent on its face.*** But the alteration of other bills, not connected with that in controversy, cannot be offered as evidence of the alteration of the bill in question.*65 And the mere appearance of a note is not sufficient evidence that it has been mutilated or altered.466

458 National State Bank of Troy v. Rising, 4 Hun (N. Y.) 793. So, that they were erased on the payee's refusal to take the note in that form. Riley Gerrish, 9 Cush. (Mass.) 104.

459 Burnham v. Parkhurst, 108 Mass. 341.

460 Kennedy v. Crandell, 3 Lans. (N. Y.) 1.

461 Ortmann v. Bank, 41 Mich. 482, 2 N. W. 677.

462 Johnson v. State, 2 Ind. 652.

463 Jourden v. Boyce, 33 Mich. 302. So, to disprove the allegation of forgery. Bardin v. Stevenson, 75 N. Y. 164.

464 Rankin v. Blackwell, 2 Johns. Cas. (N. Y.) 198.

465 Thompson v. Mosely, 5 Car. & P. 501; Balcetti v. Serani, Peake, 192 466 Downs v. Webster, Brayt. (Vt.) 79. E. g. by a figure apparently written over another in the date, Sedgwick v. Sedgwick, 56 Cal. 213; or by the payee's name being written in different colored ink over an erasure, Smith v. MeGowan, 3 Barb. (N. Y.) 404. And an alleged alteration cannot be decided by inspection on a motion to strike out the answer. Rogers v. Vosburgh, 87 N. Y. 228.

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