(s) Hill 17. Calvin, 4 How. (Miss.) 231; Bowers v. Jewell, 2 N. H. 543; Martendale v. Follet, 1 N. H. 95, where the insertion of the word young in a note for "merchantable neat stock" was held material; Wheelock v. Freeman, 13 Pick. 165; Brackett v. Mountfort, 2 Fairf. 115, where a note was attested some time after it was signed, and it was held, that this rendered the note void. But whether the alteration was made with fraudulent motives, or with consent, is for the jury. Bowers v. Jewell, 2 N. H. 543. In Southworth Bank v. Gross, 85 Penn. St. 80, it was held, that the addition of a particular place of payment in the body of the note by the payee, after execution, rendered it void as to the maker, in the hands of an indorsee.

(t) Davis v. Jenney. l Met. 221.

(tt) M'Cormick v. Fitzmorris, 39 Mo. 24; Wood v. Steele, 6 Wallace, 80.

(tu) Vogle v. Ripper, 34 Ill. 100.

(u) Powers v. Ware, 2 Pick. 451.

(v) Davidson v. Cooper, 11 M. & W. 778, 18 id. 343.

(w) Truett v. Wainwright, 4 Gilman, 411.

♦ 722 having no authority to affix the seal of his principal, puts it to an instrument which would be valid without a seal, the seal is mere surplusage. (x) Where a note was payable on demand with interest, the addition of "nine per cent." avoided the note. (xx)

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 ad vantage 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 if so altered it was done with or without the authority or consent of the other parly, are questions which should go to a jury, to be determined according to all the evidence in the case. (y)

(x) White v. Fox, 29 Conn. 670.

(xx) Lee v. Starbird, 55 Me. 401.

(y) It seems to have been the rule of the common law, that if an obvious alteration or interlineation appeared in a deed, it would, nevertheless, in the absence of any opposing testimony, be presumed to have been made before the deed was finally executed, because the law will never presume fraud or forgery in any person; omnia presumuntur rite esse acta. Co. Litt 225 b. n. (1); Trowel v. Castle, 1 Keble, 22; Den v. Farlee, 1 N. J. 280, the alteration being against the party claiming under the paper; so in Fullen v. Shaw, 3 Dev. 238. And the same rule has been adhered to in a late English case. Doe d. Tatham v. Catamore, 16 Q. B. 745, 5 Eng. L. & Eq. 349. And in some cases the same principle has been followed in bills of exchange and promissory notes. As in Gooch v. Bryant, 13 Me. 386, which was an action on a note, the date of which obviously had been at some time materially altered, but when there was no evidence on either side. The judge before whom the case was tried ruled, that altering it after the execution would be a fraud which was not to be presumed, but must be proved, and the plaintiff had a verdict On exceptions this ruling was sustained, Weston, C. J., saying: "There was no other evidence of the alteration of the note, than what arose from inspection, from which it appeared that one of the figures in the date had been altered. Of the fact there could be no doubt; but the more important inquiry was, when it was done. If altered after the signing and delivery, it would vitiate the note; if before, it would not. As to the time, no evidence was offered by either party. The alteration was not in itself proof that it was done after the signature; it might have been made before. If the alteration was prima facie evidence that it was done after, it must be upon the ground that such is the presumption of law. But we do not so understand it. It would be a harsh construction; exposing the holder of a note, the date of which had been so altered as to accelerate payment, or to increase the amount of interest, to a conviction of forgery, unless he could prove that it was done before the signature. It would be to establish guilt by a rule of law, when there would be at least an equal probability of innocence. But such cannot be the law; it is a question of evidence, to be submitted to the jury, as was done in the case before us. And they were properly instructed, that it was a case not within the statute of limitations." Beaman v. Russell, 20 Vt. 205, adopts the same rule. That also was a case of an alteration in the date of a note, and the subject is there ably examined. Cumberland Bank v. Hall, 1 Halst. 215, is the same way. In Wickes v. Caulk, 5 Harris & J. 36, the names of the witnesses to a deed had been erased. The court refused to presume that the erasure was after execution, saying: "By the inspection of the original deed, the names of the two persons are written in the place where attesting witnesses generally write

It has been held that a material alteration of a note by the holder, will prevent a recovery not only on the note itself, but their name, and the names are erased; but when they were erased, whether before or after the execution of the deed, does not appear; and it is incumbent on the party who wishes to avoid a deed by its erasure, to prove that the alteration was made after its execution and delivery. Attesting witnesses are not necessary to the validity of a deed; and the erasure of their names, by a stranger, would not avoid it. As the court, therefore, were not bound to presume that the erasure was made by the grantee, or those claiming under him, after the execution and delivery of the deed, the lessor of the plaintiff could not call on the court to declare the deed inoperative." In Clark v. Sogers, 2 Greenl. 147, it is said that in such cases "fraud and forgery are not to be presumed." On the other hand, there are many able and well-considered decisions, to the effect that it is incumbent upon a party offering an instrument which has an obvious or admitted interlineation or alteration on it, which is material, to explain such alteration, and show that it was made before execution. Not the least of these cases is that of Wilde v. Armsby, 6 Cash. 314. There, in an action on a written guarantee of the payments of George Winchester and Company, it appeared, on the face of the instrument, the signature to which was admitted, that the same had been altered by an interlineation of the words "and Company," written in a different handwriting from that of the rest of the instrument, and in a different ink. It was held, that the burden of proof was on the plaintiff to show, that the interlineation was made before the instrument was executed. But the court there said: "We are not prepared to decide that a material alteration, manifest on the face of the instrument, is, in all cases whatsoever, such a suspicious circumstance as throws the burden of proof on the party claiming under the instrument. The effect of such a rule of law would be, that if no evidence is given by a party claiming under such an instrument, the issue must always be found against him, this being the meaning of the 'burden of proof.' 1 Curteis, 640. But we are of opinion, upon the authorities, English and American, and upon principle, that the burden of proof, in explanation of the instrument in suit in this case, was on the plaintiff. It was admitted by his counsel, at the argument, that the words 'and Co.' which were interlined in the guarantee, were in a different handwriting from that of the rest of the instrument, and also in different ink. In such a case, the burden of explanation ought to be on the plaintiff; for such an alteration certainly throws suspicion on the instrument." Probably the weight of authority in America is, that in negotiable instruments, the burden of showing that an obvious and material alteration was lawfully made, is upon the party claiming under it. Simpson v. Stackhouse, 9 Barr, 186; Hills v. Barnes, 11 N. H. 395; McMicken v. Beauchamp, 2 La. 290; Warring v. Layton, 8 Harring. (Del.) 404; Commercial Bank v. Lum, 7 How. (Miss) 414; Wilson v. Henderson, 9 Smedes & M. 375; Humphreys v. Guillow, 13 N. H. 385; Walters v. Short, 5 Gilman, 252; Tillou v. Clinton Mut. F. Ins. Co. 7 Barb. 564. And in England the current of authority is unbroken, that in negotiable instruments a different rule prevails from that applicable to deeds. Any alteration in the former must be explained. Lord Campbell, C. J., in Doe d. Tatham v. Catamore, supra; Johnson v. Marlborough, 2 Stark. 313; Bishop v. Chambre, 3 C. & P. 65; Taylor v. Mosely, 6 C. & P. 273; Sibley v. Fisher, 7 A. & E. 444; Knight v. Clements, 8 A. & E. 215; Clifford v. Parker, 2 Man. & G. 909; Henman v. Dickinson, 5 Bing. 183; Cariss v. Tattersall, 2 Man. & G. 890; Whitfield v. Collingwood, 1 Car. & K. 325. Some American authorities deny any distinction between deeds and other writings, and hold the burden to be always on the party claiming under an instrument to explain any alteration in it. See Ely v. Ely, 6 Gray, 439; Morris v. Vanderen, 1 Dall. 67; Prevost v. Grate, Pet. C. C. 369; Jackson d. Gibbs v. Osborne, 2 Wend. 555; Acker v. Ledyard, 8 Barb. 514; Jackson v. Jacoby, 9 Cowen, 125. In England there may be found many decisions to the effect that alterations apparent in a will, will be presumed to have been made after the original execution. But it has been said that this rule is founded upon the construction of the Statute of Wills, I Vict. c. 2, § 6. See Doe d. Shallcross v. Palmer, 16 Q. B. 947, 6 Eng. L. & Eq. 155; Cooper v. Bockett, 4 Moore, P. C. 419. See remarks of Dr. Lushington on this statute, in Burgoyne v. Showier, 1 Rob. Ecc. 6. In Rankin v. Blackwell, 2 Johns. Cas. 198, the maker of a note relied upon an alteration in the date and amount as a defence. His proof was (inter alia) the alterations apupon the consideration for which it was given. (yy) But such alteration by a payee, without fraud and only to correct a mistake, will not avoid the note in the hands of an indorsee. (yw) Still, any material alteration of commercial paper, unaccounted for by the holder, is, in general, fatal to it. (yx) If a husband duly executes a mortgage, and the signature of the wife, releasing dower and homestead, is fraudulently added, this alteration does not defeat the mortgage. (yz)l