Shackelford, O.J.,
delivered tbe opinion of tbe court.
This is an action of assumpsit, instituted to the March Term, .1867, of the Attalla Circuit Court, upon a promissory note, of which the following is a copy, viz.: —
“ $1,000. Twelve months after date, we, or either of us, promise to pay to John Winters, or bearer, the sum of one thousand dollars, loaned money (‘ in gold ’), with interest at ten per cent per annum: this 26th day of May, 1859. .
“ Eobert M. Harris.
Ezekiel J. Bridges.
Jesse G-. Kimbrough.
A. S. Hamilton.
James Hubbert.”
To the declaration in this case the plaintiffs in error filed the general issue and the special pleas.
The second special plea is in substance: That on the day of January, A.D. 1866, the sureties to said note, gave notice to the administrators of the estate of John Winters,'deceased, “in person,” to institute a suit against the principal of said note, to the next March Term, 1866, of said court, and that the administrators failed to institute said suit against Eobert M. Harris, “ the said court being holden after thirty days from the giving of the said notice.”
Eeplication and issue in short to this plea.
The tim'd plea was to the effect that the note had been altered in a material part after they had signed it, by inserting the words “ in gold ” in the body of the note, without their consent and knowledge. This plea was sworn to. Defendants in error demurred to it, and the demurrer was sustained by the court, and judgment of respondeat ouster.
The third amended plea was sworn to, which is in substance as follows: The plaintiffs in error, claiming to be sureties on said note, state that the note was altered in a material part and manner since they signed and delivered the same, without their privity or consent, authority or acquiescence, by inserting the words “ in gold ” in the face of the note.
[141]*141This plea was also demurred to by the defendants in error.
Causes of demurrer assigned are : —
“ 1st. That the alleged alteration was an immaterial one, and did not affect the rights or liabilities of the parties thereto.
“ 2d. That it is uncertain, in not showing how or when said alteration was made.”
This demurrer was sustained by the court, and judgment quod recuperet.
After the judgment, the issue on the second plea was submitted to the j ury, and verdict for the plaintiffs below.
The case is here for revisal by writ of error.
There are five assignments of error made by the plaintiffs in error.
We shall notice them in their order.
The first is that the court erred in sustaining the plaintiffs’ de murrer to defendants’ third plea.
The demurrer admits the allegations of the plea. What are they ?
That the words “ in gold,” as they appear in the note sued upon and set out herein, were inserted after the execution and delivery of the note to the deceased John Winters; and that the alteration was done without their “ privity or consent, authority or acquiescence.”
Admitting, for the purposes of this discussion, that the alteration was made by John Winters, the payee of the note, is it such an alteration as will vitiate the note %
The rule is well settled, that where any alteration is made which causes the instrument to speak a language different, in legal effect, from that which it originally spoke, is a material alteration.
Does the alteration in the case before us come within this rule ?
We think it does not.
The note bears date on the 25th day of May, 1859 ; the drawers promise to pay $1,000 twelve months after the date thereof, with ten per cent interest, the consideration being for “ loaned money.”
[142]*142The -legal liability- of the plaintiffs in error, on the note in question, seems to us the same without the words “ in gold ” inserted, as with them.
The law, at the date of this note, fixes the legal liability of the plaintiffs in error as to the kind of funds or money this note should be paid in. They admit the consideration was for loaned money to Harris, the principal.
Could Harris legally discharge or pay the money due on the note on the 25th day of May, 1860, in any other currency than gold ? Tie could not.
Yiow this alteration as an alteration by John Winters, it only expresses what the law implies, and only shows what the law would do if resistance was made to the payment of the note; the alteration, then, if we are right in our views of the rule, was an immaterial one, not changing in the least the legal liability of the parties to the note, Falmouth v. Roberts, 9 M. & W. 469; 5 Mass. 540; 6 Mass. 519, and the law itself would supply, 15 Pick. 239 ; 3 Ohio Stat. 445.
The rule is different when the alteration has been made fraudulently, or with a fraudulent intent; but there was no allegation in this plea that the alteration was made with such intent, or that it had been made by Winters, the payee.
It is manifest that the insertion of the words “in gold ” was inserted to show the kind of money loaned to Harris, the principal, and was to create a higher security, or to fix a greater liability to the parties to the note.
- The plaintiffs in error do not show by their plea that any other kind of funds were loaned to Harris than gold.
The proof to the contrary, if any existed, was in the possession of the plaintiffs in error at the filing of their plea; and their failure to allege that any other kind of funds were loaned, is conclusive against them that it was gold loaned.
If we are right in this view of the facts touching the consideration of the note, the payee, if he made the alteration, was only supplying an omission which was not material, and could in no wise affect the rights or liability of the plaintiffs in error upon the note.
[143]*143Another view of this question : There is a distinction to be observed between an alteration and a spoliation of an instrument, as to the legal consequences.
An alteration is an act done upon the instrument by which its meaning or' language is changed.
If what is written upon, or erased upon an instrument, has no tendency to produce this result, or to mislead any person, it is not an alteration. This term is applied when the act is done by the party entitled to the instrument.
But the act of a stranger, without the participation of the party interested, is a mere spoliation or mutilation of the instrument, not changing its legal operation, so long as the original writing remains legible.
There is no allegation in the plea in question that the insertion of the words “ in gold ” into the note was made by the deceased payee.
These words may have been inserted by a stranger.
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Shackelford, O.J.,
delivered tbe opinion of tbe court.
This is an action of assumpsit, instituted to the March Term, .1867, of the Attalla Circuit Court, upon a promissory note, of which the following is a copy, viz.: —
“ $1,000. Twelve months after date, we, or either of us, promise to pay to John Winters, or bearer, the sum of one thousand dollars, loaned money (‘ in gold ’), with interest at ten per cent per annum: this 26th day of May, 1859. .
“ Eobert M. Harris.
Ezekiel J. Bridges.
Jesse G-. Kimbrough.
A. S. Hamilton.
James Hubbert.”
To the declaration in this case the plaintiffs in error filed the general issue and the special pleas.
The second special plea is in substance: That on the day of January, A.D. 1866, the sureties to said note, gave notice to the administrators of the estate of John Winters,'deceased, “in person,” to institute a suit against the principal of said note, to the next March Term, 1866, of said court, and that the administrators failed to institute said suit against Eobert M. Harris, “ the said court being holden after thirty days from the giving of the said notice.”
Eeplication and issue in short to this plea.
The tim'd plea was to the effect that the note had been altered in a material part after they had signed it, by inserting the words “ in gold ” in the body of the note, without their consent and knowledge. This plea was sworn to. Defendants in error demurred to it, and the demurrer was sustained by the court, and judgment of respondeat ouster.
The third amended plea was sworn to, which is in substance as follows: The plaintiffs in error, claiming to be sureties on said note, state that the note was altered in a material part and manner since they signed and delivered the same, without their privity or consent, authority or acquiescence, by inserting the words “ in gold ” in the face of the note.
[141]*141This plea was also demurred to by the defendants in error.
Causes of demurrer assigned are : —
“ 1st. That the alleged alteration was an immaterial one, and did not affect the rights or liabilities of the parties thereto.
“ 2d. That it is uncertain, in not showing how or when said alteration was made.”
This demurrer was sustained by the court, and judgment quod recuperet.
After the judgment, the issue on the second plea was submitted to the j ury, and verdict for the plaintiffs below.
The case is here for revisal by writ of error.
There are five assignments of error made by the plaintiffs in error.
We shall notice them in their order.
The first is that the court erred in sustaining the plaintiffs’ de murrer to defendants’ third plea.
The demurrer admits the allegations of the plea. What are they ?
That the words “ in gold,” as they appear in the note sued upon and set out herein, were inserted after the execution and delivery of the note to the deceased John Winters; and that the alteration was done without their “ privity or consent, authority or acquiescence.”
Admitting, for the purposes of this discussion, that the alteration was made by John Winters, the payee of the note, is it such an alteration as will vitiate the note %
The rule is well settled, that where any alteration is made which causes the instrument to speak a language different, in legal effect, from that which it originally spoke, is a material alteration.
Does the alteration in the case before us come within this rule ?
We think it does not.
The note bears date on the 25th day of May, 1859 ; the drawers promise to pay $1,000 twelve months after the date thereof, with ten per cent interest, the consideration being for “ loaned money.”
[142]*142The -legal liability- of the plaintiffs in error, on the note in question, seems to us the same without the words “ in gold ” inserted, as with them.
The law, at the date of this note, fixes the legal liability of the plaintiffs in error as to the kind of funds or money this note should be paid in. They admit the consideration was for loaned money to Harris, the principal.
Could Harris legally discharge or pay the money due on the note on the 25th day of May, 1860, in any other currency than gold ? Tie could not.
Yiow this alteration as an alteration by John Winters, it only expresses what the law implies, and only shows what the law would do if resistance was made to the payment of the note; the alteration, then, if we are right in our views of the rule, was an immaterial one, not changing in the least the legal liability of the parties to the note, Falmouth v. Roberts, 9 M. & W. 469; 5 Mass. 540; 6 Mass. 519, and the law itself would supply, 15 Pick. 239 ; 3 Ohio Stat. 445.
The rule is different when the alteration has been made fraudulently, or with a fraudulent intent; but there was no allegation in this plea that the alteration was made with such intent, or that it had been made by Winters, the payee.
It is manifest that the insertion of the words “in gold ” was inserted to show the kind of money loaned to Harris, the principal, and was to create a higher security, or to fix a greater liability to the parties to the note.
- The plaintiffs in error do not show by their plea that any other kind of funds were loaned to Harris than gold.
The proof to the contrary, if any existed, was in the possession of the plaintiffs in error at the filing of their plea; and their failure to allege that any other kind of funds were loaned, is conclusive against them that it was gold loaned.
If we are right in this view of the facts touching the consideration of the note, the payee, if he made the alteration, was only supplying an omission which was not material, and could in no wise affect the rights or liability of the plaintiffs in error upon the note.
[143]*143Another view of this question : There is a distinction to be observed between an alteration and a spoliation of an instrument, as to the legal consequences.
An alteration is an act done upon the instrument by which its meaning or' language is changed.
If what is written upon, or erased upon an instrument, has no tendency to produce this result, or to mislead any person, it is not an alteration. This term is applied when the act is done by the party entitled to the instrument.
But the act of a stranger, without the participation of the party interested, is a mere spoliation or mutilation of the instrument, not changing its legal operation, so long as the original writing remains legible.
There is no allegation in the plea in question that the insertion of the words “ in gold ” into the note was made by the deceased payee.
These words may have been inserted by a stranger. If this alteration was material, and was shown by the plea to have been done by the deceased, it would have been repugnant to all principles of justice for the court to have overruled the demurrer to this plea, it being beyond the power of the administrator of the deceased payee to explain how, when, or by whom the alteration was made.
We concur with the learned judge in his view of the legal effect of the allegations of the plea in question, and see no reason to disturb the judgment or the demurrer.
The second assignment is disposed of by the disposition of the first.
The third assignment is that “ the court erred in excluding the testimony of the defendants, as stated in the record,” in support of the issue joined on the second special plea.
During the progress of the trial, the plaintiffs in error introduced James Ilubbert, one of the drawers of the note, who testified in substance that he, as well as all the sureties on the said note, signed the same as such for B. M. Harris, principal; that, on or about the 1st of January, A.D. 1866, he called upon Willis G-. Winters, one of the plaintiffs, and administrator of [144]*144John Winters’ estate, and asked if the said note had come into his hands as administrator, and that he admitted it had; and that, as one of the securities, he notified Willis Gr. Winters, as administrator, that he wanted him to proceed, to make the money due on said note out of B. M. Harris, the principal; that said notice was personal and verbal; and that said notice was given about thirty days before the next ensuing term of the Circuit Court of said county of Attalla; and that said Harris resided in said county, and had in his possession from seven to nine bales of cotton, worth forty cents per pound.
The testimony of Bridges, one of the plaintiffs in error, was also given: it was to the same effect.
A motion was then made by the defendants in error to exclude the foregoing testimony from the jury.
Which motion was sustained, and the testimony excluded.
Exceptions to this ruling of the court were taken and allowed.
The ruling of the court in excluding this testimony from the jury is made the ground for the third assignment of error.
This testimony was properly excluded from the jury; the statute requires the notice from sureties, to the holder of a note, to sue the principal, or all the parties, to be in writing. Bev. Code, p. 361, art. 1.
Consequently the verbal notice was a nullity, and the court below committed no error in excluding this testimony from the jury.
The plea was demurrable, and should have been demurred to.
The fourth assignment of error is that “ the court erred in entering up judgment for the plaintiffs for the sum of one thousand seven hundred and eighty-three dollars for their damages, with ten per cent interest per annum, &c.”
This assignment is not well taken, because there is no statement accompanying the record, showing what the judgmeut should be, in compliance with Buie No. 35 of this court. Without such statement no notice will be taken of any error in the amount of a judgmeut.
The fifth assignment of error is “ that the verdict of the jury was informal, erroneous, and insufficient.”
[145]*145Tbe verdict of tbe jury, as set out in tbe record, is in these words : “ We, tbe jury, find for tbe plaintiffs.”
Tbe issue submitted to tbe jury was upon tbe second plea of tbe plaintiffs in error, — that they bad given notice, &c., to institute suit against tbe principal, Harris.
Tbe verdict of tbe jury, after tbe exclusion of tbe testimony of Hubbert and Bridges by tbe court, was correct.
It clearly bad reference to tbe issne joined on tbe second plea.
There was no necessity for a verdict sounding in damages, although tbe record shows that tbe issue on tbe plea of non assumpsit was also submitted to tbe jury.
Their plea of non assumpsit was virtually abandoned by plaintiffs in error, by their admissions in their third special plea, to which tbe demurrer was sustained by tbe court previously.
Tbe judgment of tbe court was rendered upon tbe calculation of the clerk, and entered in favor of tbe defendants in error.
This judgment is substantially correct, although obnoxious to technical objections, which do not prejudice tbe interests of tbe plaintiffs in error.
Upon tbe whole, we see no reason why tbe judgment of tbe court should be disturbed.
let tbe judgment be affirmed.
Beyton, 1, dissented.