#### JOHN NORFLEET, Adm'r., v. JOSEPH M. EDWARDS et al.

Where a promissory note of a firm appeared p'n a piece of paper, in a form that had been prepared for a bond with sureties, but the scroll containing the word seal, opposite to which was the signature of the firm, was scratched and cross-marked with ink, (evidently with a design to obliterate it) it was Held to be erroneous to charge the jury, it was incumbent on the plaintiff to show that the obliteration took place before or at the time the instrument was executed.

This was an action of assumpsit, tried before SauNdees, J., at the last Spring Term of Edgecombe Superior Court.

The plaintiff declared in two counts, first: on a promissory note, and secondly, for goods, wares and merchandise sold and delivered.

In support of the first count, it was proved that the instrument declared on was executed by Joseph M. Edwards, and that he was at that time a partner with defendant, W. W. Parker, and one John Edwards, under .the name and style of the signature of the note.

The instrument in question is as follows :

“ $500. With interest from date, we, or either of us, promise to pay W. A. Grimmer or order five hundred dollars, for value received, as witness our hands and seals, this 1st day of January, 1857.

Edwaeds, Pabeer & Co.

Witness, (seal.)

(seal.)”

*456Upon the second count plaintiff’ relied on the instrument aforesaid, and proved that Grimmer sold to the firm of Edwards, Parker & Co., his stock of goods (he haying- been a merchant) and his real estate.

It appeared on inspection of the paper that it had been originally drawn as a bond, with seals, in a hand writing different from that of the signature, with the word “witness,” in the usual place, in the same hand-writing with the body, though not attested; and that the seal, opposite the signature, liad been defaced, first by scratching with a knife or something of a similar kind, and then by drawing lines through it.

The defendant insisted that the instrument was not their promissory note, because the seal had been defaced after the execution. The plaintiff denied that the seal had been defaced after the execution, and insisted that from an inspection of the paper, it would be seen that the erasure of the seal was done with the same ink as that of the signature; also that the jury-had a right to inspect the paper, and from its appearance, and all the matters appearing in proof, to judge whether the seal was defaced before, at the time, or after the execution of the paper.

The Court intimated an opinion that the defacement of the seal, of itself, created a suspicion against the instrument, which had not been explained, and that it was incumbent on the plaintiff to show, by proof, that the defacement was before, or at the time of its execution, of which there was no sufficient proof, and further, that there was no sufficient proof to support the second count, although the instrument might have-been executed as a bond. The plaintiff’s counsel, in submission to this opinion, took a nonsuit aud appealed.

Dortch, and B. F. Moore,, for the plaintiff.

Rodman and Bridpers, for the defendants.

Battle, J.

There is scarcely any question of law upon which there is a greater conflict of decisions in the English and American courts than that which has bben discussed in *457the case now under consideration. Mr. Parsons, in bis excellent work on the law of Contracts, says, that “ in the absence of explanation, evident alteration of any instrument, is generally presumed to have been made after the execution of it; and consequently it must be explained .by the party, who relies on the instrument, or seeks to take advantage from it. Such is the view taken by many authorities of great weight. But others, of perhaps equal weight, hold that there is no such presumption; or, at least, that the question whether the instrument was written, as it now stands, before it was executed, or has since been altered, and whether as so altered, it was done with or without the authority or consent of the other party, are questions which should go toa jury, to be determined according to all the evidence in the case.” 2 Par. on Contracts, 228. Yery many cases are referred to in the note (a) to that page, which fully support the remarks of the learned author in the text. See also Dunn v. Clements, decided at the last term of this Court and reported, ante 58.

In most, if not in all the cases, in which the contrariety of decision may be seen, it will be observed that the erasures, interlineations, or rather alterations, were made in deeds, negotiable securities or other instruments, whose nature and character were determined upon or fixed, that is, they either were intended to be, or were, at the time when the alterations were made, deeds, or negotiable securities or instruments of some other particular kind. The instrument, in the present 'case, differs from them all in this particular, that the alteration was made for the very purpose of determining and fixing its character. With a seal, it would be a deed, while, if that were erased, it would become a promissory note. If it were executed as a deed, it could not bind all the partners, but if made as a promissory note, it would have that effect. The plaintiff’s intestate wished, undoubtedly, to take an instrument by which all the partners, with whom he was dealing, should be bound, and the partner who signed the instrument in the name of the firm wished, undoubtédly, to give one by which all the members of the firm should be bound. Under *458such circumstances, is it not a fair presumption that the seal was erased, at the time when the instrument was given by the one party and accepted by the other ?• If we are to suppose that the parties to the transaction were apprised of the law applicable to it, the presumption that they acted in accordance with that law, follows as a necessary consequence. Now$. we believe that it is a general rule that in civil, as well- as in criminal cases, parties-are presumed to know the law and act in reference to it, unless the contrary appears; and hence, we conclude that in a case like the present,, where the interest of the parties is in accordance with their manifest intent, the maxim that omnia presumuntur rite esse acta must prevail. Ve are, therefore, of opinion that his Honor in the Court below erred, in holding-that it was incumbent upon the plaintiff to show that the obliteration of the seal was made before, or at the time when the instrument sued' upon was executed; and for that error, the judgment must be reversed, and a venire de novo awarded.

Pee- CuRjam,

Judgment reversed!