Eddy v. Bond

| Me. | Jun 15, 1841

The opinion of the Court was delivered by

Shepley I. ■

The presiding Judge declined instructing the jury as requested, “ that [the note] being payable to Gilbert Knowlton or bearer, unless some consideration passed between the payee and the makers, it could not be put in circulation by any other person and become binding on them.”

A bill or note payable to a person named, or bearer, is payable to the bearer ; and one coming into possession of it for a valuable consideration, lawfully, is not required to shew any consideration between tire maker and the person named. Bullard v. Bell, 1 Mason, 252; Ellis v. Wheeler, 3 Pick. 18; Pierce v. Crafts, 12 Johns. 90" court="N.Y. Sup. Ct." date_filed="1815-01-15" href="https://app.midpage.ai/document/pierce-v-crafts-5473482?utm_source=webapp" opinion_id="5473482">12 Johns. 90. And a compliance with that request was properly refused.

The note as originally drawn and signed, was made to read, I promise, and was altered to read We promise : and the jury were correctly instructed, that the alteration was not material. As first drawn the signers were jointly and severally bound. Hemmenway v. Stone, 7 Mass. 58" court="Mass." date_filed="1810-09-15" href="https://app.midpage.ai/document/hemmenway-v-stone-6403591?utm_source=webapp" opinion_id="6403591">7 Mass. R. 58. The alteration limited their liability to the holder; and did not change their legal rights in relation to each other. It was not made by the holder, but by a party to the note before it was negotiated.

The attestation of a note by one, who was not present and did not see ihe maker sign, has been decided to be a material alteration. Brackett v. Mountfort, 2 Fairf. 115. The presiding Judge, on this point, instructed the jury, “ that the addition of the subscribing witness without the knowledge or consent of the promissors, if done fraudulently, would render the note void ; but that if the name of such witness was added before the note went into the plaintiff’s possession, the law would presume, that such alteration was made with the knowledge and consent of the defendants.” Considering the testimony in the case, the use of the language, “ before the note went into the plaintiff’s possession,” was equivalent to saying, before it was issued. And a note is not considered as issued before it comes to the hands of some one entitled to make a claim upon it. Sherrington v. Jermyn, 3 C. & P. 374. In Henman v. Dickinson, 5 Bing. 183, it was decided, “ that where an alteration appears on the face of a bill, the party producing it must shew, that the alteration was made with consent of parties, or before the issuing of the bill.” And in Johnson v. the Duke of Marlborough, 2 Stark. 313, where the date of the bill appeared on the face of it to have been altered by the acceptor, Abbott J. said that “he could not presume one way or the other, and unless it could be proved, that the alteration was prior to the acceptance, the bill was void for want of a new stamp.” It was then proved, that the bill was in the possession of Wooddison, the drawer, after the acceptance, and this was held to be prima facie proof, that it had not been previously negotiated. In the case of the Cumberland Bank v. Hall, 1 Halstead, 215, it was held, that an alteration apparent on the face of a note was not to be presumed to have been made after its execution. It is not necessary to express any opinion on that question in this case. The cases of Henman v. Dickinson, and Johnson v. the Duke of Marlborough, are noticed only for the purpose of shewing, that they proceed upon the principle, that where the alteration appears to have been made before the bill or note was issued, it is not presumed to be fraudulent, and does not destroy its validity. In the case of Farmer v. Rand, 14 Maine R. 225, and 16 Maine R. 453; tire note had been negotiated, had passed out of the hands of the maker, and had been indorsed by the several parties before the alteration was made. And it was contended that after such proof, it was to be presumed that the alteration was made by consent, but it was decided otherwise. That was a case of an alteration not apparent by an inspection of the note. And so is the one now under consideration, and the testimony shews, that it was made before the note was negotiated although after it had been signed and offered for negotiation. An alteration not apparent on inspection, and which was made before any one as holder or payee had any legal claim upon it, and while it was in the hands of one of the promissors, must be presumed to have been made by their consent. The rule, that fraud or crime is not to be presumed, would apply in such a case.

Exceptions overruled„