The evidence touching the consent bearing date the 16th July, 1847, together with the torn appearance of the paper, was sufficient to authorize the conclusion drawn by the judge at the circuit, that the paper had been essentially altered by the plaintiffs after it had been transmitted to them by the secretary of the defendants. The execution of the consent was proved by the admission of the secretary; who accompanied the admission with the declaration that the paper had been since mutilated. The evidence of the alteration is, therefore, of as high a character as that of its execution ; and although some of the recent authorities hold that a portion of an admission may be believed and a portion disbelieved, it can not be denied that the tribunal which is to try the question of fact, may believe both portions, In this case the judge at the circuit, considering this statement confirmed by the mutilated appearance of the paper, found, as a question of fact, that the alteration had been improperly made by the plaintiffs since the execution of the paper.
As a question of law, I apprehend that it will not be contended that such an alteration did not vitiate the paper, and *568deprive the plaintiffs of all rights under it. (8 Cowen, 71. 12 Wend. 173.)
It has long been a disputed point whether the burden of explaining an alteration apparent upon a paper devolved upon the party seeking to enforce it, or the party sought to be charged. It would seem that, in some of the states, an alteration, not peculiarly suspicious, must he presumed to have been made before execution. (11 Conn. Rep., 531. 1 Halstead, 215. Cowen & Hill’s Notes, 298, 1317, &c.) But when the alteration is suspicious, and beneficial to the holder of the paper, the more sensible rule prevails, at least in this state and in England, that the presumption is against the party who sets up the paper; and he is required to explain it, before he can recover. (2 Wend. 555. Vide also note to Waring v. Smyth, 2 Barb. Ch. Rep. 119.)
But it is contended that the case should have been submitted to the jury. This would have been true, if the plaintiff had offered evidence which afforded a prima facie explanation of the mutilation; or if the fact of mutilation had come out on the part of the defence, after the plaintiffs had made out their case. But no explanation was given, or offered. The evidence which professed to explain, or rather to deny, the alteration, tended strongly to establish the fact, and confirm the declaration of the secretary.
As I understand the rule, it is always a question for the court to decide, whether a paper is proper to be read in evidence to the jury. The reason of the rule is most emphatically applicable to the present case ; for the alteration was of such a character as that the law pronounces the paper absolutely void, until explained. If, therefore, the case had been submitted to the jury and a verdict found for the plaintiffs on that evidence, this court would have been compelled to set aside the verdict; and in all such cases it is the obvious duty of the judge to direct a nonsuit; even if both parties have given testimony. (Graham on New Trials, 280.) It is not unusual for the judge to reject the altered paper, and direct a nonsuit. In the case of Penny v. Corwithe, (18 John. 499,) a submission to arbitrators *569was offered in evidence, but it appearing that a black line had been drawn through the name of one of the parties, since its execution, the judge refused to permit it to be read in evidence, unless the plaintiff showed that the rasure had been made by the consent of the parties. The plaintiff then offered to prove the fact; but the judge rejected all evidence on that point, except that of the subscribing witness, and nonsuited the plaintiff: and for this last ruling of the judge, a new trial was granted. So in the case of the Adm'rs of Price v. Adm’rs of Tollman, (1 Coxe, 447,) a bond was produced, and the subscribing witness stated that there had been a writing at the foot of the bond, which had been cut off. The court would not permit the bond to be read in evidence, although the plaintiff offered to prove the contents of the writing tom off, and to satisfy the jury that it was immaterial. The plaintiff was nonsuited.
In Knight v. Clements, (8 A. & E. 215,) a bill of exchange was offered by the plaintiff, but it appeared that the word “three” had been blotted, and “two’’written upon it. The court held that the plaintiff was bound to explain it by evidence, and that the jury could not infer from the appearance of the bill that the alterations had been made when the bill was drawn; and a nonsuit was ordered. (See also 2 Starkie’s Rep. 313; 5 Bing. 183.)
That it is a question for the court, when objection is made to the admissibility of the evidence, is shown by the case of Ross v. Gould, (5 Greenl. 204, cited 1 Greenl. Ev. 599.)
The motion for a new trial must be denied.
New trial denied.