Jefferson County MsArchives Court.....Oakey, Mr 1839
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Deb Haines ddhaines@gmail.com December 8, 2005, 10:00 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Oakey v. Wilcox.

pages 330-331

If, after a note has been delivered to the payee, a particular place of 
payment be inserted therein by interlineation, without the maker’s consent, he 
will be discharged.

ERROR to the circuit court of Jefferson county.

This was an action of assumpsit on a promissory note, for 150 dollars, made by 
defendant, payable to, and endorsed by, one Samuel Baker.

Plea of non assumpsit.

On the trial, the defendant proved by Baker, that, the words, "at the bank in 
Rodney," were inserted in said note after he had endorsed it. That he endorsed 
it at the request of the defendant, and handed it back to him, and had not 
seen it since, and did not know whether it was interlined before it was passed 
to the plaintiff or not.

Upon the request of the defendant, the court charged the jury, that, if they 
believed the note had been interlined after it was delivered to the payee, 
without the consent of Wilcox, they must find for the defendant; to which 
instruction plaintiffs excepted. Verdict and judgment for the defendant.

Montgomery and Boyd, for plaintiff in error.

The alteration neither increased nor diminished the liability of the maker, 
and, therefore, was immaterial, and did not affect the validity of the note. 
18 Johns. Rep. 315.

As the payee was an accommodation endorser, and is not sought to be rendered 
liable in this action, it is immaterial whether he knew or consented to the 
alterations or not.

Where an alteration appears on the face of the instrument, and there is no 
evidence how, or where, or by whom it was made, the presumption is, that it 
was made before delivery. 1 Halst. Rep. 215; Chit. on Bills, 211, 212.

Clark, contra.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The note on which the suit was brought was endorsed and returned to the maker, 
and after endorsement, the words "at the bank in Rodney, Miss.," were added as 
part of the note. It does not appear whether these words were added before the 
delivery of the note to the plaintiff or not, or by whom they were inserted. 
On the trial, the defendant's counsel requested the court to charge the jury, 
that if they believed the interlineation was made after the note was delivered 
to the plaintiff and without the consent of the defendant, the note was void, 
and, they must find for the defendant; which charge the court gave. In this 
charge, there was no error. It was such an alteration of the note, as would 
avoid it. If there was no proof as to who made the alteration, a fair 
presumption might be indulged that it was done by the maker before delivery; 
but the jury found for the defendant, and we must presume they had sufficient 
before them to justify the verdict.

Judgment affirmed.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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