Tedlie vs. Dill.

R. 210; Fowler vs. Bott, 6 Mass. R. 63; Wagner vs. White, 4 Han & John. 564; Gales vs. Green, 4 Paige 355; 3 Kent, 466; 1 Dyer R. 33; 6 T. R. 650; 6 T. R. 750; 2 Stra. R. 763; 1 Story Com.secs. 101, 102.

The reasons upon which the decisions at law have gone, are, that it is competent for a party, in his contract, to stipulate against payment in case of fire, or other casualty, or violence; and, having failed to do so, he cannot take advantage of his laches. The contract is an executed one; the tenant is in the position of a purchaser of the premises for the term; he is let into the possession, and the landlord has no right to enter or in any way molest him. And, as in all other express, unconditional contracts, both parties must abide their solemn act.

The rule, too, is not without foundation in policy. It secures, on the part of the tenant, that carefulness and vigilance which is necessary to the safety of the owner's property whilst he is out of possession, and whilst it is under the absolute control of one who has only a temporary interest in it. If the destruction by fire would excuse the payment of rent, then might the tenant, so far as pecuniary interest is concerned, become careless to protect it. The owner would be left to rely upon the tenant's sense of moral obligation, which unfortunately is not, in all men, so just or so strong as to constrain them to do right. Indeed there are men to be found base enough to burn down a house, to get rid of the payment of rent, if their interest might thereby be subserved. The contrary of this rule would therefore operate in restraint of renting. Let the judgment of the Court below be affirmed.

No. 16.-EDWARD H. TEDLIE, WILLIAM P. TEDLIE, and JESSE B. TEDLIE, plaintiffs in error. vs. JoHN DILL, defendant in error.

[1.] The Act of 1820, to regulate the mode of prosecuting actions against contractors and co-partners, applies as well to joint and several contractors as to joint contractors only, provided they are sued together in the same action.

[2] Under the Judiciary of 1799, the plaintiff is not required to produce evidence to explain any alteration in the instrument sued on, where it is declared upon as altered; unless the same is denied by the defendant on oath, in his answer.

Assumpsit. From Baker Superior Court. Tried before Judge WARREN, in December, 1846.

Tedlie vs. Dill.

For the facts of the case, and the error assigned, see the decision of the Supreme Court.

Messrs. MCDOUGALD & DEVON, for plaintiffs in error, relied on the following authorities:

Prince Dig. 445; Constitution of Georgia, 1 sec. 3 art. Prince Dig. 910, 911; also 15 sec. 4 art. Prince Dig. 913; Constitution of United States, 10 sec. 3 art. Prince Dig. 895; Archbold Civil Pleading, t. p. 67, cites 1 B. & Pul. 73; also Leigh's Nisi Prius, 664, 388, cites Bachelor vs. Priest, 12 Pick. R. 399; Wheelock vs. Freeman, 13 Pick. R. 165; Granite Railway Co. vs. Bacon, 15 Pick. R. 239; Boyd vs. Brotherson, 14 Wend. R. 93; Leigh's Nisi Prius, 392, cites Bishop vs. Chambre, M. & M. R. 116; 3 C. & P. 55; 14 Eng. Com. Law R. 207; Johnson vs. Duke Marlborough, 2 Stark. R. 313; 3 Eng. Com. Law R. 360; Henman vs. Dickinson, 5 Bing. R. 183; 15 Eng. Com. Law R. 409; Archbold Civ. Plea. 67, cites 20 H. 6, 11; 9 Ed. 4, 24 b; also 1 Chitty Plea. 46, 47, 48; Archbold Civ. Plea. 67, cites 10 H. 7, 16; Bro. Obligations, 94, 12; H. 4, 21 b. Pl. 12; Bro. Dette 69; 3 T. R. 782; 1 Saund. 291 e; see 1 Chitty Plea. 46, 47, 48; 2 Leigh's Nisi Prius, 664, cites 3 T. R. 782.

Mr. LYON, for defendant in error, made the following points.

The points taken by defendant are—

1. That the alteration, if any, was not material.

2. That there was no fraud in such alteration.

3. That there was no evidence that it was not made at the time of its execution, and before its delivery.

4. That if any benefit was derived from such alteration it was to the plaintiffs. Bayley on Bills, 96.

5. That the record does not show that such alteration did exist, or that it was made before its delivery.

6. That Dill was a bona fide purchaser, and it is not alleged that he had notice of such alteration.

7. That, allowing the alteration to have existed, the Court may not have erred, for it may have explained itself. Refers to Masters vs. Miller, 4 T. R. 320.

8. There was no finding of the jury as to the materiality of the alteration.

Tedlie vs. Dill.

9. The whole question was a proper one for the consideration of

the jury.

10. Plaintiffs should have pleaded non est factum, to have put the materiality of the alteration in issue.

By the Court-LUMPKIN, J, delivering the opinion.

This was an action of Assumpsit, brought in Baker Superior Court, upon a joint and several promissory note, made by Edward H. William P. and Jessie B. Tedlie, and payable to James S. Avery or bearer. All three of the makers were included, and two of them only served with process, a return of non est inventus being made by the Sheriff as to the other. The cause came on for trial in December, 1846, when the defendants who were served, insisted that the plaintiff could not proceed against two of the joint contractors without the other being made a party. The Court, Judge Warren presiding, overruled the objection, whereupon the defendants, by their counsel, excepted.

The note being offered in evidence, the defendants objected to its being read, on the ground, that there was a material alteration on the face of it. It was dated the 10th of August, 1839, and payable the 25th day of December next. Over the word next was written in figures 1840, so as to make the note fall due a year later than it was originally drawn. The Court overruled the demurrer to the testimony. Whereupon the defendants excepted.

[1] By the first section of the Act of 1820, it was declared: "That whenever two or more joint contractors or co-partners are sued in the same action, and service shall be effected on one or more of the said joint contractors or co-partners, and the Sheriff or other officer serving the writ shall return, that the other defendant or defendants are not to be found, it shall and may be lawful for the plaintiff to proceed to judgment and execution against the defendant or defendants who are served with process, in the same manner as if he she or they were the sole defendant or defendants." Prince Dig. 445.

The second section provides: "That judgments so obtained shall bind, and execution may be levied on the joint or co-partnership property, and also on the individual property, real and personal, of the defendant or defendants who have been served with a copy of the process, but shall not bind or be levied upon the individual

Tedlie vs. Dill.

property of the defendant or defendants who are not served with process." Ib. 446.

The only question, it occurs to the Court, to be settled in respect to the first objection is, whether the defendants in this case are joint contractors? That is not denied. It is urged, however, that they are likewise several. That may be. Still, if the plaintiff has elected to sue them jointly, as it was his privilege to do, and has brought himself within the requisitions of the act by having the proper return made as to the defendant who is not to be found, he is clearly entitled to proceed against the other two. He comes both within the letter and spirit of the statute, which, by the way, is wholly free from ambiguity; and, being a remedial act, as well as designed to prevent a multiplicity of suits upon the same contract, it should be liberally expounded.

The other point is not entirely free from embarrassment. [2.] Some of the authorities maintain, that if an instrument is altered in a material part, and the party claiming under it fails to explain it, it is absolutely void, and there can be no recovery upon it. Newell vs. Maybury, 3 Leigh R. 350; Mills, adm'r of Gilmore vs. Starr, adm'r Chambers, 2 Bailey R. 359; Bowers vs. Jewell, 2 New Hamp. R. 543.

On the other hand it has been held, that the law will not presume that an alteration, apparent on the face of the note, was made after its execution. Cumberland Bank vs. Hall, 1 Halst. R. 215; 2 Greenlf. R. 147. And that, unsupported by other evidence, it is not competent evidence to set it aside; and that the party must show corroborating circumstances to strengthen the suspicion. Rankin vs. Blackwell, 2 John. Cases, 198.

The Bank of the United States vs. Russell & Boone, 3 Yeates R. 391, establishes that an alteration of the date of a promissory note by the payee, whereby the time of payment is retarded, afterwards discounted with innocent persons, by the payee indorsing it, avoids the note. In the case at bar the payment has been prolonged one year, and the note transferred by the payee. The date of the process is not within the statute of limitations, even reckoning the time from the 25th of December, 1839.

There is a conflict of opinion, too, as to whether the court or jury shall pronounce upon the alteration. The materiality of the alteration is always a question for the court. But, whether the alteration was made before or after the execution of the instrument in the more recent cases has been decided by the court, f

Tedlie vs. Dill.

erly it was referred to the jury. It is the duty of the plaintiff to prove the time when, or the circumstances under which, the alteration took place; and, unless he give some evidence in explanation thereof, it is not competent for the jury to decide upon a bare inspection of the paper. Chitty on Bills, 532, 9th edition; Knight vs. Clements, 3 Nev. & P. R. 375; 8 Adol. & Ellis, 215. In this latter case, the bill was drawn upon a two months stamp, and had begun with the words three months after date, but the word three had been defaced, (as if blotted while the ink was wet,) and two written upon it, and two written again underneath. The stamp was sufficient only for a bill at two months. The defendants counsel insisted that the plaintiff must show, by extrinsic evidence, that the bill was altered before it was negotiated. For the plaintiff it was contended, that the jury might form an opinion on this point, from an inspection of the bill itself, without other proof; and no further evidence was given. The learned Judge placed the bill in the hands of the jury and desired them to say, whether the alteration had been made before or after the instrument was negotiated, giving leave to move for a non-suit if the Court should be of the opinion that there was no evidence to go to the jury on this point. The jury found that the bill was altered in time, and the plaintiff had a verdict.

Cresswell at the next term moved for a non-suit on the ground taken at the trial. He admitted that the appearances on the bill, if there had been other evidence, could not have been withdrawn from the attention of the jury; but he contended that those appearances by themselves, though they might entitle the jury to say that an alteration had taken place, could not be evidence of the time at which it was made. A rule nisi was granted.

Tomlinson now showed cause and cited Cock vs. Coxwell, 2 Cromp. M. & R. 291; S. C. 5 Tyr. 1077; Sibley vs. Fisher, 7 A. & E. 444, (34 Eng. C. L. R. 139;) S. C. 2 Nev. & P. 430; Johnson vs. The Duke of Marlborough, 2 Stark. N. P. C. 313, (3 Eng. C. L. R. 360;) Henman vs. Dickinson, 5 Bing. 183, (15 Eng. C. L. R. 409;) Bishop vs. Chambre, M. &. M. 116; Taylor vs. Mosely, 6 Car. & P. 273, (25 Eng. C. L. R. 303.)

Lord Denman delivered the judgment of the Court, and after reciting the facts of the case, he declared that the rule for a nonsuit must be made absolute. "The plaintiff," he continues, "was bound to prove a bill accepted payable at two months: that which he produced was accepted payable at either two or three months,