Summary
In Sharp v. Bagwell, 14 N.C. 115, held, that equity would not relieve one who had cut off the name of a witness from the bond in ignorance of its effect.
Summary of this case from Wicker v. JonesOpinion
(December Term, 1827.)
Where the payee of a promissory not mutilated it by cutting off the name of the attesting witness: It was held, that he was entitled to no relief in a court of equity.
From IREDELL. The plaintiff in his bill alleged that the defendant was indebted to him in a sum of money, secured by two notes, which were attested by two witnesses; that from ignorance that the act would affect the validity of the notes, he cut off the name of one of the subscribing witnesses; that he had brought an action at law on the notes, in which he failed in consequence of this alteration; that nothing had ever been paid by the defendant on account of the debt secured by the notes, but that the whole thereof was still due. The prayer of the bill was for payment of the debt due the plaintiff by the defendant.
Wilson for defendant.
No counsel for plaintiff.
The defendant in his answer admitted the execution of the notes as charged in the bill, but averred that they were given upon an usurious consideration, which he could only prove by the witness whose name had been cut from them. He insisted that the plaintiff had mutilated the notes with the view of depriving him of this testimony, and prayed all the benefit of legal defense arising either from the usurious nature of the contract or from the mutilation set forth in the bill.
A replication to the answer was filed and proofs taken, but (116) they are not necessary to the elucidation of the case.
It is of great consequence to society that written contracts should be preserved free from every circumstance of suspicion. The old cases have laid down with much precision the law relative to deeds, that any alteration by the obligee will avoid the deed, as well as any alteration by a stranger in a material part; and modern cases have extended the rule to bills of exchange and promissory notes, in which it is still more applicable, from the number of hands through which they may pass. If the alteration might be made with impunity, with the chance of gaining if successful, and not losing in the event of detection, it is probable such attempts would be frequently made; and nothing is more likely to check them than its being understood that by tampering with a written instrument the creditor loses his debt. Courts of equity have, from an early period, acted on the principle of presuming everything in odium spoliatoris. In the time of Lord Ellesmere a decree was made against a defendant for an estate, upon the ground that he was vehemently suspected of having suppressed a deed. Lord Handson v. Lady Arundell, Hob., 109. And many cases have since occurred in chancery, and decided on the same ground. Sanson v. Nunnery, 2 Vern., 561; Hampden v. Hampden, 1 Bro. P. C., 250; Dalton v. Coatsworth, 1 P. W., 751.
The alteration of this note was in a most material point, tearing off the name of that witness by whom alone the consideration of the contract could be proved. If after a spoliation of this kind equity would relieve the creditor, it would encourage others in like circumstances to repeat the experiment.
(117) I remember a case, tried when I was at the bar, the ultimate decision of which in the Superior Court was believed to be entirely correct. The suit was instituted in the county court against executors on the bond of their testator. Between him and the plaintiffs there had been other dealings by open accounts, and some payments made, which though directed to be applied to the credit of the bond, were credited to the open account. The subscribing witness to the bond had been called on to witness this direction, and the defendant's attorney having pleaded non est factum, required the presence of the witness. But after the case was put to the jury, the plaintiff's attorney tore off the name of the witness, and the court allowed him to prove the obligor's handwriting. Upon appeal to the Superior Court, it was ruled without hesitation that the mutilation had destroyed the bond. The obligee afterwards made an unsuccessful attempt to recover the money in equity.
I think the bill should be dismissed, with costs.
The complainant states that he had no bad motive in view when he cut off the paper from the instrument on which the witness's name was written. This may be true; but as it is difficult to fathom men's motives, particularly when contradicted by their acts, and as others may hereafter say their intentions were equally pure, when they acted from the most selfish ones, and as a general rule of conduct must be laid down for all, therefore, the law will not permit a man to explain his motive when he does an act in which he is so much interested as the plaintiff was in the present case. But it judges of his motive from the act done. By cutting off the name of the witness, the instrument (118) might have been proved by the other witness without running any risk of bringing to light the usurious consideration on which the note is charged to have been given.
I have no hesitation in saying the bill should be dismissed, with all costs.
PER CURIAM. Bill dismissed with costs.
Cited: Wicker v. Jones, 159 N.C. 109.