It is very clear that when the plaintiff rested there was no evidence to submit to the jury on the question of the alteration of the note. The action was against the indorser. The note on its face showed an alteration of the date by writing 7 for the day of the month over 8. No explanation was given of the alteration, and the indorser was sought to be charged on a presentation of the note on the 8fch of February, being a recognition by the notary of the 7th of November as the correct date of the note. The liability of the indorser depended on the true date of the note. If the note, when indorsed by him, was dated the 8th, then he could only be made liable by a protest on the 9th of February. If the 7th is adopted as the date of the note, the mode of alteration and the fact of such alteration having been made when the defendant indorsed it must be shown, to hold him liable as indórser. When commercial paper is altered in anything material, the onus rests on the holder to show that such alteration was properly made. As no evidence was given on the subject of the alteration when the plaintiff rested, the case should not have gone to the jury, and the defendant’s motion to dismiss the complaint should have been granted.
Was there any evidence given afterwards to alter the state of the case ?
The defendant was sworn, and testified that he did not make the alteration; that he did not know who made it, and the first time he saw it was in December, 1860; that he never authorized the alteration to be made; that he received the note from Gilmore, and indorsed it and took it to the Artisans’ Bank, and gave it to the president.
Gilmore, the maker, was sworn, and testified that the note was dated the 8th; that he did not make the alteration; that he did not know who did; that he did not authorize any one .to do so, and had no knowledge of it until three years after the date of the note.
On the part of the plaintiffs it was proven that the note had been altered before it became due, and was not altered afterwards; that it came to the hands of the discount clerk *257when discounted, and that it then bore the same date as now, and was not altered afterwards. It was also proved that the alteration was not made in Platt’s handwriting, and was in Gilmore’s handwriting. Upon this evidence the question was submitted to the jury. If the action had been against the maker, the evidence would have been submitted properly to the jury as to his liability, but I am at a loss to see anything that brings home to the indorser any knowledge of this alteration. He utterly denies all knowledge of it between the indorsement and the trial, and the only fact on which he is sought to be made liable, is his delivery of the note indorsed by bim to the president. There was a period of time when the alteration might have been made not reached by any of the witnesses, viz.: after its delivery and before it was passed by the officer of the bank to the discount clerk; and whether such alteration was made by Platt or by Gilmore would be immaterial. If without the knowledge of the defendant, he would not be chargeable.
I have noticed these facts more at large, as bearing upon the question as to the sufficiency of the notice of protest. The notice of non-payment was not dated. It stated that a note dated 7th November, 1857, and indorsed by the defendant, was protested for non-payment. There is no proof from the defendant as to the day of service, which might perhaps supply the difficulty, The only evidence was the notary’s certificate that on the 8th February, 1858, he served the notice by mail.
This case very much resembles that of Wynne agt. Alden, (4 Denio, 163), except that the point decided in that case is presented more strongly by the notice proved here. There the notice was without date, and stated that the note “ had this day been presented for payment and payment refused.”
The court held the notice defective; saying, the notice being without date, it is impossible to ascertain from the paper itself what day in particular was intended.
In Ransom agt. Mack (2 Hill, 587), it was held that whether the notice was sufficient was a question of law (Rennie agt. Downer, 23 Wend. 720).
*258■In Bela Hunt agt. Higgins (9 Abbott, 422), it was held that an error in the day on which the note was protested was fatal. The cases of, CooTc agt. Litchfield (5 Selden, 279), and Youngs agt. Lee (2 Hernán, 552), were cases in which the date and other matters were all stated but some defect alleged as to the day of protest. In Home Ins. Go. agt. Green, a notice which omitted the maker’s name was held insufficient to charge the indorser.
In Hodges agt. Shuler (22 New York, p. 115), Weight, J. in speaking of the sufficiency of the notice, says, “ a notice is well described when its maker, payee, date, amount, and time and place of payment are stated.” Such should be the contents of the notice. But some of the cases have, from time to time, sought to avoid the hardship of holding a notice defective for any of these requisites having been omitted, if they could find something else to show that the party was not misled or left in ignorance. Thus, where the maker and indorser’s names were misplaced, it was held not to mislead, because the error was known to the indorser. So the want of saying that the payment of the note had been demanded and refused, was considered cured by saying the note was protested, and the holder looked to the indorser for payment. So in cases like this, the want of stating the day on which payment was demanded, was relieved by the date of the notice being on the day the note became due. But in no case has it been held that a notice without date, and not stating on what day it was presented for payment, was sufficient.
It seems to me this notice was insufficient for want of a date, or for want of stating the day of demand in the body of it, and that a new trial should be granted.