Simpson v. Davis , 119 Mass. 269 ( 1876 )

Endicott, J.

The plaintiffs allege in the declaration that the defendant made the note declared on. This the defendant denies, and says that there has been an alteration of the note since it was given. If an alteration was made after its execution and without the defendant’s consent, the note declared on is not the note )f the defendant. The plaintiffs must establish that it is this defendant’s note, and on this proposition the plaintiffs have the burden of proof throughout. ■ The plaintiffs rely upon the words of Shaw, C. J., in Davis v. Jenney, 1 Met. 221, 224: “that an extension of the time was a material alteration, and that the burden of proof was upon the defendant to show the alteration.” That the words are not here used in their technical sense, is evident from the paragraph that follows: “ or perhaps to state this last proposition with a little more precision, the proof or admission of the signature of a party to an instrument is primd facie evidence that the instrument written over it is the act of the party; and this primd facie evidence will stand as binding proof, unless the defendant can rebut it by showing, from the appearance of the instrument itself, or otherwise, that it has been altered.” In Wilde v. Armsby, 6 Cush. 314, it was held that the burden of proof was on the plaintiff to show that an interlineation was made before the instrument was executed. The same rule applies as when a want of consideration is relied on as the defence to a promissory note; the burden of proof is on the plaintiff, upon the whole evidence, to establish that fact. Delano v. Bartlett, 6 Cush. 364. Morris v. Bowman, 12 Gray, 467. Powers v. Russell, 13 Pick. 69, 76. The ruling at the trial was correct.

Exceptions overruled.