Citation Numbers: 20 Me. 337
Judges: Weston
Filed Date: 7/15/1841
Status: Precedential
Modified Date: 9/24/2021
The opinion of the Court (Shebley J. being absent,) was by
A note, which has the attestation of a subscribing witness, is to be proved by calling that witness. But if, from defect of memory or any other cause, such witness fails to prove the execution of the note, other evidence of the genuineness of the signature is admissible. Chitty on Bills, 625; Lemon v. Dean, 2 Camp. 636. The recollection of the subscribing witness in this case, failing him altogether, there could be no legal objection to the admission of other testimony to show, that the signatures were the proper handwriting of the defendants.
Where a note has been manifestly altered, cases have been cited for the defendants to establish the position that it is incumbent upon the holder to account for such alteration. If he does not, and the jury are of opinion, that it was made after the execution of the note, it will be their duty to return their verdict for the defendant. But whether altered subsequently, or not, is a question for them, if no explanatory testimony is adduced. They are not to be instructed, as matter of law, that if not accounted for the note is void. Bishop v. Chambre, 3 Car. & P. 55; Taylor v. Mosely, 6 Car. & P. 273; Gooch v. Bryant, 13 Maine R. 386.
But if the rule was such, as is contended for by the counsel for the defendants, that if a note has been manifestly altered, the plaintiff cannot recover, without proving that it was fairly done, it does not appear to us, that the note in controversy is to be pronounced altered upon inspection. If so, a note partly written by one hand, and finished by another, who happens to , dip his pen in a different inkstand, is prima facie a note fraud
Exceptions overruled.