Tyree v. Rives

57 Ala. 173

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

STONE, J.

The Circuit Court, on the objection of defendant, excluded the notary’s protest from the jury. The objections were specified, and were two in number. Under these circumstances we will notice only the objections specified. — 1 Brick. Dig. 887, § 1194.

The objections to the introduction of the protest were: first, “ that the same had been erased in three several places;” and, second, that “the notary before whom it was executed, was an officer of the rebel State of Alabama.” We are not informed in what the erasures consisted, or how they affected the aj>pearance of the paper. The objection was because of erasures, independent of the character of them. Erasures do not per se destroy the paper writings in which they are found. And they cast less suspicion on official papers than they do on those that are non-official. Their greatest effect is to raise inquiries of fact as to when, by whom, and for what purpose they were made. If made before, or at the time of execution, the alteration is harmless. If made after-wards, and by a stranger, the alteration is alike harmless, unless it be in some material respect. If the alteration be of a character to indicate that its purpose was to accommodate a printed form to the wants of the particular occasion, of course, it would not be likely to engender suspicion. On the other hand, if the alteration be in different handwriting, or in different ink, or show a materially different liability, or state of facts, the time and manner of, or authority for such alteration should generally be shown. The question is one for the jury, under appropriate instructions, and for extrinsic proof, if necessai’y. We- repeat, the mere fact that the protest disclosed three erasures on its face, did not, as matter of law, justify its rejection.—See Wilbur v. Wilbur, 13 Metc. Mass. 405-7; Derry v. Mayor, &c. 35 Barb. 264; Reed v. Kemp, 16 Ill. 445; Sloan v. Stanley, 11 Ire. Law, 627; Maybee v. Sniffin, 2 E. D. Smith, 1; Cole v. Hills, 44 N. H. 227; Beaman v. Russell, 20 Ver. 205; Staner v. Ellis, 6 Ind. 152; Wicker v. Pope, 12 Rich, 387 ; Boothley v. Stanley, 34 Maine, 515; see, also, Fontaine v. Gunter, 31 Ala. 258; Johnson v. McGehee, 1 Ala. 186.

There was nothing in the second objection.—Parks v. Coffey, 52 Ala. 32.

Reversed and remanded.