Carson v. Duncan , 1 Greene 466 ( 1848 )

Opinion by

Hastings, C. J.

On the back of the note in .controversy was the following endorsement:—

u Received, on the within note, sixty dollars, September 1st, 1841, by John Carson, jr.” Through this' endorsement were drawn two lines, with apparent intention to erase it, and below it was written the following certificate, viz. :“We (certify that this endorsement was made in mistake.

Cyrus Clark,

John Carson.”

It appears from the record, that the court below rejected the amount credited on the back of the note, without any other testimony than the above certificate to show that the credit was properly erased. This, we think, was error.

If the credit was made by mistake, the plaintiff should have proved the mistake by some witness who knew the fact. The certificate was not per se evidence of the fact.

The presumption of law is then in favor of the allowance of the erased credit, subject to be rebutted by testimony. See Chitty on Bills, Appendix, 820; 7 Louisiana It. 356.

From the record it appears that the credit ought to have .been allowed, and therefore the court erred in rejecting it.

A credit on the back of a note cannot be erased by any person, except the party in whose favor the credit is given, or by some pei'son by him authorized ; and an erasure of a credit by a payee, corruptly made, is as criminal as an alteration of the face of a note itself, and the holder of the note should explain such erasure before he should be permitted to recover.

The judgment is therefore reversed, and a new trial awarded.

Judgment reversed.