Tedlie v. Dill

By the Court

Lumpkin, J,

delivering the opinion.

This was an action of Assumpsit, brought in Baker Superior Court, upon a joint and several promissory note, made by Edward H. William P. and Jessie B. Tedlie, and payable to James S. Avery or bearer. All three of the makers were included, and two of them only served with process, a return of non est inventus being made by the Sheriff as to the other. The cause came on for trial in December, 1846, when the defendants who were served, insisted that the plaintiff could not proceed against two of the joint contractors without the other being made a party. The Court, Judge Warren presiding, overruled the objection, whereupon the defendants, by their counsel, excepted.

The note being offered in evidence, the defendants objected to its being read, on the ground, that diere was a material alteration on the face of it. It was dated the 10th of August, 1839, and payable the 25th day of December next. Over the word next was written in figures 1840, so as to make the note fell due a year later than it was originally drawn. The Court overruled the demurrer to the testimony. Whereupon the defendants excepted.

[1.] By the first section of the Act of 1820, it was declared; “ That whenever two or more joint contractors or co-partners are sued in the same action, and service shall be effected on one or more of the said joint contractors or co-partners, and the Sheriff or other-officer serving the writ shall return, that the other defendant or defendants are not to be found, it shall and may be lawful for the plaintiff to proceed to judgment and execution against the defendant or defendants who are served with process, in the same manner as if he she or they were the sole defendant or defendants.” Prince Dig. 445.

The second section provides: “That judgments so obtained shall bind, and execution may be levied on the joint or co-partnership property, and also on the individual property, real and personal, of the defendant or defendants who have been served with a copy of the process, but shall not bind or be levied upon the individual property of the defendant or defendants who are not served with process.” Ib. 446.

The only question, it occurs to the Court, to be settled in respect to the first objection is, whether the defendants in this case axe joint contractors ? That is not denied. It is urged, however, that they are likewise several. That maybe. Still, if the plaintiff has elected to sue them jointly, as it was his privilege to do, and has brought himself within the requisitions of the act by having the proper return made as to the defendant who is not to be found, he is clearly entitled to proceed against the other two. He comes both within the letter and spirit of the statute, which, by the way, is wholly free from ambiguity; and, being a remedial act, as well as designed to prevent a multiplicity of suits upon the same contract, It should be liberally expounded.

The other point is not entirely free from embarrassment. [2.] Some of the authorities maintain, that if an instrument is altered in a material part, and the party claiming under it fails to explain it, it is absolutely void, and there can be no recovery upon it. Newell vs. Maybury, 3 Leigh R. 350; Mills, adm’r of Gilmore vs. Starr, adm’r Chambers, 2 Bailey R. 359; Bowers vs. Jewell, 2 New Hamp. R. 543.

On the other hand it has been held, that the law will not presume that an alteration, apparent on the face of the note, was made after Its execution. Cumberland Bank vs. Hall, 1 Halst. R. 215; 2 Greenlf. R. 147. And that, unsupported by other evidence, it is not competent evidence to set it aside; and that the party must show corroborating circumstances to strengthen the suspicion. Rankin vs. Blackwell, 2 John. Cases, 198.

The Bank of the United States vs. Russell & Boone, 3 Yeates R. 391, establishes that an alteration of ihe date of a promissory note by the payee, whereby the time of payment is retarded, afterwards discounted with innocent persons, by the payee indorsing it, avoids the note. In the ease at bar the payment has been prolonged one year, and the note transferred by the payee. The date of the process is not within the statute of limitations, even reckoning the time from the 25th of December, 1839.

There is a conflict of opinion, too, as to whether the court or jury shall pronounce upon the alteration. The materiality of the alteration is always a question for the court. But, whether the alteration was made before or after the execution of the instrument in the more recent cases has been decided by the court, formerly it was referred to the jury. It is the duty of the plaintiff to prove the time when, or the circumstances under which, the alteration toolc place; and, unless he give some evidence in explanation thereof, it is not competent for the jury to decide upon a bare inspection of the paper. Chitty on Bills, 532, 9th edition; Knight vs. Clements, 3 Nev. & P. R. 375; 8 Adol. & Ellis, 215. In this latter case, tho bill was drawn upon a two months stamp, and had begun with the words three months after date, but the word three had been defaced, (as if blotted while tho ink was wet,) and two written upon it, and two written again underneath. The stamp was sufficient only for a bill at two months. The defendants counsel insisted that the plaintiff must show, by extrinsic evidence, that the bill was altered before it was negotiated. For tho plaintiff it was contended, that the jury might form an opinion on this point, from an inspection of the bill itself, without other proof; and no further evidence was given. The learned Judge placed the bill in tho hands of tho jury and desired them to say, whether the alteration had boon made before or after the instrument was negotiated, giving leave to move for a non-suit if the Court should be of the opinion that there was no evidence to go to the jury on this point. Tho jury found that the bill was altered in timo, and the plaintiff had a verdict.

Oresswell at the next term moved for a non-suit on the ground taken at the trial. He admitted that the appearances on the bill, if there had been other evidence, could not have been withdrawn from the attention of the jury; but he contended that those appearances by themselves, though they might entitle the jury to say that an alteration had taken place, could not be evidence of the time at which it was made. A rule nisi was granted.

Tomlinson now showed cause and cited Cock vs. Coxwell, 2 Cromp. M. & R. 291; S. C. 5 Tyr. 1077; Sibley vs. Fisher, 7 A. & E. 444, (34 Eng. C. L. R. 139;) S. C. 2 Nev. & P. 430; Johnson vs. The Duke of Marlborough, 2 Stark. N. P. C. 313, (3 Eng. C. L. R. 360;) Henman vs. Dickinson, 5 Bing. 183, (15 Eng. C. L. R. 409;) Bishop vs. Chambre, M. & M. 116; Taylor vs. Mosely, 6 Car. & P. 273, (25 Eng. C. L. R. 303.)

Lord Denman delivered tho judgment of the Court, and after reciting the facts of the case, ho declared that the rule for a non-suit must bo made absolute. “The plaintiff,” he continues, “was bound to prove a bill accepted payable at two months: that which he produced was accepted payable at either two or three months, with no evidence whether it was one or the other. The mode of obliteration might have furnished arguments in favour of one or the other supposition, and material confirmation to any proof adduced as to that fact. But, standing by itself, it was obviously no better than a conjecture; for the alteration might have been too late, and accompanied with a fresh marking by wet ink rubbed over at the instant.”

The case therefore would be with the defendants, did not the judiciary of 1799 come to the plaintiff’s relief. It declares, “that no person shall be permitted to deny any deed, bond, bill, single or penal note, draft, receipt or order, unless he, she or they shall make affidavit of the truth of such answer, at the time of filing the same.” Prince Dig. 421. That is, at the court to which the petition and process are made returnable.

This point has been well considered, and in the opinion of this Court, no person can be allowed to deny the genuineness of any instrument which is the foundation of the action against him, unless he verifies the truth of his defence. Profert being made of the paper, (and it must be made in all cases,) the defendant can by inspection at the appearance term, decide, whether any alteration has been made since its delivery and frame his answer accordingly, setting forth the facts under oath “plainly, fully and distinctly.” This done, it devolves upon the plaintiff to show that the alteration was made at the time the writing was executed, or subsequently by the consent of the parties to be affected thereby, and without some evidence to this effect, the jury cannot on a bare inspection of the paper determine at what time the alteration took place.

Here, the plaintiff declared on the note, as payable the 25th day of December, 1840 ; profert is made of it in the writ. It is not denied on oath, as altered to be the act and deed' of the defendants. They have therefore under our statute absolved the plaintiff from the necessity of proving it. Our brother Warren who tried the cause, placed the note in the hands of the jury; and we think committed no error in doing so.

His judgment must therefore be affirmed.