Gooch v. Bryant

The action was continued nisi, and the opinion of the Court afterwards drawn up by Weston C. J. It was not competent by way of amendment to change the party plaintiff and substitute another ; but if there was a mistake in his addition or place of residence, we have no doubt that either may be set right by amendment. The note having been handed to the attorney for collection by Ephraim Whitney, he erroneously supposed it to have been his property, and made a memorandum to that effect on the writ. As soon as the mistake was discovered, it was erased. It was no part of the writ, or of any indorsement required to be made thereon by law. The rights of the plaintiff are certainly not to be concluded by a memorandum, which he never authorised, and which was put on by mistake. The whole evidence, upon the question whether the note had been transferred to Whitney, was fairly left to the jury. Whitney was called as a witness by the defendant. He could not therefore impeach his credit, by showing that he had made contradictory statements elsewhere. Had the note been his property, his declarations would have been admissible, but that he disproves by his testimony. It appeared that he was the agent to call for the money ; and if not paid to leave it with an attorney for collection. And it is contended, that as the agent of the plaintiff, Whitney’s admissions were binding upon him. Any acts or declarations of the agent, while in the actual discharge of his agency, would be binding upon his principal. But what he said at other times is not evidence. It is merely hearsay. He [390] was’ a competent witness, and having been called by the defendant as such, the truth of the case, so far as it could be ascertained from him, has been elicited under the sanction of an oath, and the scrutiny of a cross-examination. 1 Philips’ Ev. 74; Leeds v. The Marine Ins. Co. 2 Wheaton, 380. There was no other evidence of the alteration of the note, than what arose from inspection, from which 'it appeared, that one of the figures in the date had been altered. Of the fact there could be ho doubt; but the more important inquiry was, when it was done. ' If altered after the signing and delivery, it would vitiate the note ; if before, it would not. As to the time, no evidence was offered by either party. The alteration was not in itself proof that it was done' after the signature ; it might have been made before. If the alteration was prima facie evidence that it was done after, it must be ppon .the ground that- such’ is .thé presumption of law. But we do not so understand it. It would be a harsh construction ; exposing the holder of a note, the date of which had been so altered, as to accelerate payment, or to increase the amount of interest, to a conviction of forgery, unless he could prove that it was done before the signature. It would be to establish guilt by a rule of law, when there would be at least an equal probability of innocence. But such cannot be the law ; it is a question of evidence, to be submittéd to the jury, as was done in the case before us. And they were properly instructed, that it was a case not within the statute of limitations. Exceptions overruled.