Visher v. Webster

Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring. This was an action brought to recover damages against the defendant, sheriff of San Joaquin county, for wrongfully seizing the property of plaintiff, under an attachment,,at the suit of A. U. Fisher & Co. v. Hiram Dennis. The property was claimed "by the plaintiff, under a sale from Dennis, and the defendant set up fraud in the sale. Upon the trial, it was necessary for the defendant to prove that Fisher & Co. were creditors of Dennis; and to do this, he introduced a copy of the record in the attachment suit, and the note of Dennis, upon which that suit wrs founded. In reference to this note, the Court below gave this instruction : “If the jury believed, from the evidence, that the note, on which siich judgment was obtained, bore no rate of interest at the time it was signed by Dennis, and delivered to the holders, but, that it was afterwards filled up with the word “ five,” so as to make it draw interest at the rate of five per cent, per month, and that such alteration was made without the knowledge or consent of Dennis, that said alteration vitiated the note, and rendered it incompetent evidence to show that Fisher & Co. were creditors of Dennis.”

It was proved that, when the note was executed by Dennis, no rate of interest was specified, but a blank was left, in which the word “five” was afterwards inserted. The defendant excepted to the giving of this instruction, and this is one of the errors assigned.

The materiality of this instruction cannot be doubted, if there was any competent evidence tending to show the alleged sale fraudulent. However fraudulent the sale may have been, the defendant could not attack it, in any way, until he proved that the plaintffs, in the attachment suit, were creditors of Dennis. And if the note, upon which the attachment suit was predicated, was void, the defence, of course, must fail. There was certainly some testimony tending to impeach the sale, and this instruction took the consideration of the question of fraud entirely from the jury. The proof of filling up the blank was conclusive, and the jury, under this instruction, were compelled to find for the plaintiff.

That this instruction was erroneous, there would seem to be but little doubt. It was not an alteration of a note, within the meaning of the rule. To fill a blank in a note, is not an alteration of the note. This question was decided by this Court, in the case of A. N. Fisher & Co. v. Hiram Dennis, at the October Term, 1856.. See, also, 1 Smedes & Marshall, 21; 7 Cowen, 337; Story P. N., §110.

Another error assigned, is the refusal of the Court to permit the defendant to prove the declarations of Dennis, made before the sale. To impeach a sale, upon the ground of fraud, the fraud