Henderson v. Wilson , 7 Miss. 65 ( 1842 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action was founded on a promissory note, made payable to the Mississippi and Alabama Railroad Company, which was indorsed to the defendant in error. At the trial, it was agreed that the note had been presented to the bank for discount, but refused, and that it was transferred by the bank without any consideration received by the bank from the plaintiff. The defendants called a witness, and offered to prove by him that the note had been altered after its execution, by altering the time of payment, in changing 1837 to 1838, without the knowledge or consent of the defendants, Henderson and Smith, who were securities, Saunders being the principal. This testimony was refused by the court, because the execution of the note was not denied by plea, verified by oath. The witness also testified that the note was brought by Saunders to the store of the witness and Wilson, and transferred to Wilson for his interest in the store, which was estimated, correctly as the witness thought, to be worth one thousand dollars. Wilson refused to take it until he learned that the securities were responsible men.

The statute making bills of exchange and promissory notes evidence of debt, has never been construed to extend so far as it was carried by the court in this instance. Under the plea of non assumpsit, alterations may be shown in discharge of a party who was ignorant of such alteration. This was done in the case of Oakey v. Wilcox, 3 Howard, 330. The doctrine is well settled, that if a note or bill be altered in any material part, the parties who did not consent to such alteration will be discharged; as if the sum of money, time when payable, or consideration, be altered. Chitty on Bills, 9th Amer. Ed. 204, and note (u). Such alteration operates as a discharge, by matter subsequent to the execution of the note or bill, hence it is not necessary to deny the execution by oath. For this error the judgment must be reversed. There are many other grounds relied on to reverse the judgment, most, or perhaps all of which fall under the decision in the case of the Commercial Bank of Natchez, use of Briggs et al. v. Claiborne, 5 Howard, 301, and need not be particularly noticed.

The judgment must be reversed, and cause remanded.