Pullen v. . Shaw , 14 N.C. 238 ( 1831 )

Plea — non est factum, upon which the cause was tried beforeSwain, J., at WAKE, on the last circuit.

The defendant contended:

1. That the note was a forgery.

2. That the obligor and obligee had dealings in the bank, and that the plaintiff's intestate had signed the paper in blank with the view of being used, upon applying for a discount, and that the plaintiff had fraudulently filled up the blank signature.

3. That the bond had been altered, having been originally 11 November, 1820, instead of 1821.

Upon these points many witnesses were examined, and the examinations certified with the record. It was manifest upon inspection that the date had been altered. The body of the note and the erasure was in the plaintiff's handwriting, and the defendant attempted to prove that the alteration benefited the plaintiff, by rendering an admission of his concerning the accounts between him and the intestate consistent with the date to which it was altered.

The counsel for the defendant moved the court to instruct the jury that, as the bond on its face appeared to be altered, it was incumbent on the plaintiff to show its fairness. But his Honor, leaving the two first grounds of defense to the jury upon the facts, charged them that if the plaintiff had, after the execution of the bond altered the date, without the knowledge and consent of the obligor, he could not recover. A verdict was returned for the plaintiff, and the defendant appealed. Erasure avoids a deed when made by the (240) party claiming a benefit under it, even if it be an immaterialpart, if made by a stranger in a material part, it also avoids the deed; if by accident, it does not. Formerly the court judged of an erasure by inspection, latterly the jury do. In judging by inspection the court governed itself as juries do now, by probabilities in the absence of positive proof. If the alteration on the erased part was in the handwriting of the obligee or a stranger, and beneficial to the obligee, the court adjudged it an erasure; that is, an alteration made after the execution, and avoided the deed. If prejudicial to the obligee, the court adjudged it no erasure; that is, made before execution, and did not avoid the deed. If in the handwriting of the obligor either way, they adjudged it no erasure; that the alteration was made before execution and did not avoid the deed. Juries are now governed by the same rules. In the case before us, the date of the bond is altered, and it is made payable in 1821, instead of 1820, as it is said, is evident from the erasure not being complete, as appears from an inspection of the deed, and the alteration is in the handwriting of the obligee, and prejudicial to the obligee, for he loses one year's interest. It is payable from the date, or from a fixed period from the date. One of the rules before mentioned, to wit, that if the alteration is prejudicial to the obligee, though in his handwriting, it is no erasure, determines this case, as it is presumed that the alteration was made before execution. If the question was to be decided by the court, as formerly, we should pronounce it to be no erasure. In the absence of all evidence dehors the deed, the jury were properly instructed to pronounce it so. The plaintiff has failed in his evidence to prove, if that was his object in putting it on the record, that the alteration was beneficial to the obligee by showing that he thereby avoided the effect of his admissions as to the state of the account against the defendant by changing the date from 1820 to 1821.

PER CURIAM. Judgment affirmed.

Cited: Smith v. Eason, 49 N.C. 38; Wicker v. Jones, 159 N.C. 109.

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