#### Hampton Pankey, Plaintiff in Error, v. Stephen Mitchell, Defendant in Error.

ERROR TO GALLATIN.

An alteration made in a note without the knowledge or assent of the payor, renders the note void. The proper plea in such case is non est factum.

Mitchell sued Pankey before a justice of the peace of Gallatin county for a debt of thirty-seven dollars, and recovered a judgment against him for that amount, and costs. Pankey appealed to the circuit court where the judgment of the justice was affirmed. On the trial there, a bill of exceptions was taken to the opinion of the court, from which the following facts appear, viz.: The plaintiff was sworn and stated that he had a note on the defendant, signed also by one Stephen Roach, for thirty-seven dollars, due about the first day of June, 1830, which was lost. The plaintiff then swore three witnesses, and examined one as to the description and contents of said note, and rested his case. The defendant then examined one of these witnesses, and proved that the defendant, with Roach, at his own house, executed a note to plaintiff for the sum of thirty-seven dollars, and that the consideration thereof was, that the plaintiff should lend to Roach thirty-seven dollars in money. Another of these witnesses testified that he was present at the plaintiff’s shop, when Roach came with the note in question to plaintiff to get the money, and saw plaintiff pay the money. The defendant was not present. The witness further stated that when the note was first brought, the plaintiff objected to receiving it; alleging that the sum was not large enough. The plaintiff and Roach went together to plaintiff’s house and got the money. The defendant then introduced testimony to prove that the plaintiff acknowledged that he had altered the note executed by the defendant and Roach, from thirty-seven dollars to forty-four dollars and fifty cents. It was also proved that a note was afterwards seen in the possession of the plaintiff for forty-four dollars and fifty cents, signed by Roach and the defendant, which appeared to have had the amount that was first inserted, erased, so that it could not be read, and “forty-four dollars and fifty cents,” inserted in lieu, and plaintiff remarked, that was the note in controversy between him and defendant. This was all the testimony. The defendant thereupon then offered to plead non est factum, and deny on oath that he had executed a note to plaintiff with Roach, for forty-*384four dollars and fifty cents, or that he had given any authority for the alteration of the note for thirty-seven dollars. To this, the plaintiff, by his attorney, objected, because the merits had been gone into, and no such plea had been filed, or notified to the plaintiff, and the court sustained the objection, refused to receive the plea, and affirmed the judgment of the justice. The exception was to this opinion, and the case brought up by writ of error.

Gatewood, for plaintiff in error.

Eddy, for defendant in error.

Opinion of the Court by

Justice Smith.

In this case it is clear from the evidence that the plaintiff in the court below made an alteration in the amount of the joint note signed by Pankey and Eoach, increasing the sum from thirty-seven dollars to forty-four dollars and fifty cents, without the consent of Pankey. This rendered the note itself void ; and on it no recovery could be had. The note is sued on as a lost note, and until it was produced, or evidence offered to prove the alteration, the defendant in the court below could not be supposed to be in a condition to plead non est factum. The offer to do so so soon as the evidence disclosed the fraud, was sufficiently in time, as the proceedings were not in writing, being an appeal from the justice’s decision to the circuit court, and therefore the court erred in not permitting the plea to be received.

But upon the whole evidence, as disclosed by the bill of exceptions, without even the tender of the plea, we are of the opinon that the judgment ought, on the ground of the alteration and fraud,.to have been for the defendant. The judgment of the circuit court is reversed with costs. (1)

Judgment reversed.

(1)

In Gilleett v. Sweat, 1 Gilm., 489, the court say: "We need not cite authorities to prove that any material alteration of a note by which any of the parties to it would be prejudiced, or where its terms are changed, so as to alter the relative liabilities of the parties, will destroy the legal effect of the entire instrument.”

The rule is well established in England, and in many of the courts of this country, that it is incumbent upon the party offering in evidence an instrument which appears to have been altered (as by interlineation,) to explain such alteration; and in the absence of all evidence, either from the appearance of the instrument itself, or otherwise, to show when the alteration was made, it must be presumed to have been subsequent to the execution of the instrument. “And such,” says the court, “ we believe to be the true rule.” Though the alteration may be explained by the appearance of the instrument upon inspection, and does not necessarily require proof dehors the instrument. Walters v. Short, 5 Gilm., 258. Montag v. Linn, 23 Ill., 551.

The party receiving a paper interlined in a material part, should see that the *385interlineation is noted in the attestation. Such interlineations must be explained by those who claim the benefit of them. Hodge v. Gilman et al., 20 Ill., 437.

An obligee may make immaterial alterations in a bond, if they are consistent with the true contract of the parties. Reed v. Kemp, 16 Ill., 445.

Adding the words “ten dollars and fifty interest” immediately after the words “ value received,” in a promissory note, is not a material alteration ; such words would be construed to mean that a portion of the value received by the makers, consisted of ten dollars and fifty cents of interest. Gardiner v. Harback, 21 Ill., 129.