Gilman v. Lewis , 15 Me. 452 ( 1839 )

The case was continued for advisement, and the opinion of the Court was subsequently prepared by

Weston C. J.

The only question, arising on the defendant’s exceptions is, whether what was written over the defendant’s signa-? ture, on the back of the note, must bo presumed to have been written before his signature ; in other words, whether the paper itself is prima facie evidence of that fact. And we are of opinion that if is. It differs much from an indorsement of interest on a bond or note, by the obligee or holder, which has not the signature of the obligor or maker. It is true the contract, upon which the defendant is attempted to be charged, differs from what would arise from his blank indorsement, he being the payee. In that case his liability would be conditional, that of a common indorser only. If the holder, without his privity or consent, should write over his name a waiver of demand and notice, he would be guilty of forgery, which is not to be presumed. If a blank indorser is exposed to have his liability increased by forgery, it cannot change the law of evidence upon this point, which is, that a special contract, which has the signature of the party to be charged is, until impeached, taken to be genuine.

Whoever presumes to alter a written instrument, to the prejudice of another’s right, is liable to be severely punished. The peril attending the commission of such a crime, which may be proved by the oath of the party injured, is the security afforded by the law, to preserve commercial paper, and other instruments from violation. The strictness of the law, upon negotiable notes and bills, as to demand and notice, and the hazards attending it, do often induce a prudent indorsee to require a waiver of this condition. In Farmer v. Rand, 14 Maine R. 225, and in Buck v. Appleton, 14 Maine R. 284, it was expressly held, that a waiver of demand and notice, upon a negotiable note, over the signature of the indorser, is prima fade evidence, that it was done with his privity and consent. The exceptions on the part of the defendant are overruled.

On the point raised in the plaintiff’s exceptions, we do not agree with the presiding Judge. As demand and notice was waived, no expense of this sort could have been necessary, or would have been justified. There is no occasion to cause notes of hand to be protested ; and it is rarely practised on small notes in the country. In a suit by the plaintiff against the defendant upon the note, the law gives him costs, if he is the prevailing party. Something must have been intended, by the express stipulation of the defendant as to costs, which in onr opinion must be understood to mean, that the defendant undertook to guaranty the payment of the debt and such costs as might arise, in attempting to enforce its collection. We accordingly sustain the exceptions taken by the plaintiff.