15 Ky. 205 | Ky. Ct. App. | 1824
THIS was an action by Stout, as endorsee, against Cloud, as endorser, of a bill of exchange. The bill is for $2,500, bears date at Lexington, November 18th, 1818, drawn by Daniel Halstead upon Cox and Hart at New-Orleans, payable to Warren Offutt, four months after date, and was endorsed by Offutt to Cloud, and by Cloud to Stout.
On the trial in the circuit court, proof being introduced conducing to show that the bill was in fact made and endorsed on the 20th or 21st of November, 1818 and by the endorsers delivered to the drawer, Hal-stead, the date along being blank, to sell and raise mo
To the refusal of the court-to instruct the jury as ask-^y ^ie pla-intiff, and to the instructions given by the the plaintiff excepted; and these exceptions present the only points which occur in the case,
The date of a bill of exchange, where the time of payment is, as in this case, regulated by its date, is, no doubt, material. The date is not, indeed, even in such a case> essei)tial to the validity of the bill; for if it have no date, the time of its payment will be computed from the day it was issued; but there are various parts of an instrument which are material, though not essential to its validity, and of this character is the date of such a bill as the one in question in this case. Nor can there ¡je ar)y doubt, that an alteration of the date, where the t'ate *s matei'*a^ if made without the consent or authority of the parties to the bill, will'avoid it; but where the alteration is made with the consent, or by the authority of the parties to the bill, we can see no reason why the bill should be thereby rendered void; for, unquestionably, the parties must be as competent to alter, as to snake a bill. We are aware that it is said in the English books, that any material alteration made in a bill of exchange, even with the consent or by the authority of the parties to it, will avoid the bill, (Chitty 133, and the cases there cited,) but this is in virtue of the statute of that country requiring a stamp, and not upon the principles of the common law, and it is the latter which we are in this
But, according to these principles, it is plain that the instructions given by the court to the jury, cannot be sustained; for in giving these instructions the court not only assume the existence of an authority, but that the authority was a restricted one, and only authorised the insertion of a date subsequent to the time of the endorsement of the bill; but surely, if it belonged to the jury to infer from the existence of the blank, the intention of the endorsers that it should be filled up, it was equally the province of the jury to draw the inference, whether or not it was their intention that the date should be filled up at the discretion of the holder.
The court below, therefore, erred in the instructions given to the jury, and the judgment must be reversed with cost, and the cause be remanded for a new trial to be had.