After a continuance, the opinion of the Court was drawn up by
Weston C. J.Notes are entitled to grace by the statute of 1824, c. 272, when discounted at any bank, or left therein for collection. Such was not the condition of the note in question. It was only made payable at the People’s Bank; and it is not by the general law entitled to grace.
The alteration, if made, was material, as this Court has decided in the case of Farmer v. Rand, ante, p. 225, to which we refer. We there held, that a waiver of demand and notice, written over the signatures, was prima facie evidence, that it was done with their privity and assent; and therefore binding upon them. Such waiver by indorsers, being often required by holders, is not unusual; and its insertion is not justly to be regarded as such an apparent alteration, as to render proof necessary on the part of the holder, that it was authorized. , Such an entry on the back of a note is not in itself evidence of fraud or forgery, which is in no case to be presumed. If it was on before the defendants indorsed the note, they adopted and authorized it. If made afterwards, without their knowledge or consent, it was an unauthorized alteration. It becomes important therefore to determine, whether the testimony offered, to prove this fact, was legally admissible.
It does not appear, but the note in question was good and valid in the hands of Huntington, the payee, and no proof is proposed or offered in the defence, tending to show, either that it was made and signed for the accommodation of the payee, or that it was originally void, or liable to be impeached, before it was indorsed, upon any ground whatever.
The testimony of John PF. Appleton, one of the indorsers, after his liability had been released, was rejected in the Court below, on the ground, that it went to explain a written instrument. But the *289rale, which excludes parol testimony, offered to vary or explain that which is in writing, does not apply to proof of a fraudulent, or unauthorized alteration of a written instrument, varying tile liability of one or more of the contracting parties. It may be received to show, that the written evidence is not entitled to the respect, which belongs to that species of testimony, by reason of its having been tampered with, violated or changed. The rejection of the witness, however, has been attempted to be maintained in argument upon another ground, that the witness being a party to the note, cannot be received to impeach, by his testimony, a negotiable instrument, to which he has given currency by the sanction of his name. And this objection is deduced from the rule, established and confirmed in Massachusetts by the case of Churchill v. Suter, 4 Mass. R. 156.
It is well known, that the principle, upon which that case was based, has been repudiated in the country from which it was derived, and that neither this Court, nor the Courts in Massachusetts, have been disposed to extend it. That rule is, that a party to a negotiable instrument shall not be received to prove, that it was originally void ; and this was regarded as the extent and limit of the rule, in Adams et al. v. Carver et al. 6 Greenl. 392. In that case the indorser was admitted to testify, that the note was overdue when it was indorsed; and that certain payments had been previously received.
In Manning v. Wheatland, 10 Mass. R. 502, the rule was understood to extend further; but that case was manifestly not well considered, as usury between the indorsor and indorsee affords no defence to the maker; and its authority is justly questioned in Knights v. Putnam, 3 Pick. 185.
Without extending the discussion further, a majority of the Court are of opinion, that J. W. Apjplelon, the indorser, being released, was competent to testify, that the waiver of notice was inserted by him, without the knowledge or consent of the defendants. The testimony offered did not show the note originally void ; and it left it unimpaired against the maker and the two first indorsers. As he was excluded altogether, the exceptions are sustained, and a new trial granted upon that ground.
Mem. — Emery J. dissented from the opinion of the majority of the Court. The usual manner of publication has been to arrange the cases in the order in which the Courts are holden in the respective counties. By such arrangement, Buck v. Appleton in Cumberland precedes Greene v. Darling, in Washington, although the opinion in the latter case was delivered first, both cases having been continued for advisement.If the defendants were entitled to notice, they were not liable to an action, until due diligence was used to give it to them, as this Court has decided in Green v. Darling, in the county of Washington. At a further trial, the facts bearing upon this point, will be again examined.
New trial granted.