We think it clear, that the words, “without *709defalcation or set-off,” were, if added without the knowledge or consent of the maker, an important alteration of the instrument. The right of set-off is given by statute, and attaches to every instrument when made. It is, however, certainly competent fo,r any one to stipulate that he will not avail himself of it; and if he does, he will not afterwards be permitted to make an off-set against the note, either in the hands of the payee or his assignee.
It does not follow that a material alteration of a note, though without the consent of the maker, will render it void; if made by a stranger without the knowledge or consent of the payee or bolder, it will not affect its validity. [Brown v. Jones, 3 Porter, 422.] When an alteration is proved, which, according to the law as above expounded, would render the instrument void, it devolves on the party seeking to enforce it to explain it by proving, either that.the maker assented to it, or that it was made by a stranger without his knowledge; and if such explanation is not made, the jury will be authorized to infer that it was made by •the holder, as he has it in possession.
Let us apply these principles to the case. The third charge moved for’, “that unless the alteration was shown to have been made by the payee or assignee, or by some person with their knowledge or consent, that the alteration, if made, did not vitiate ihe note,” was the law of the case, and should have been given -to the jury. The presumption or inference, that it was made by .the payee or assignee, in the absence of proof to the contrary, was one which the court could not make, but which it was the pe•culiar province of the jury to determine. That there was no proof by whom the alteration was made, would have justified the jury in drawing such an inference, and, doubtless, if so instructed, they would have so determined; but the charge of the court deprived them of the power of considering the fact by treating it as matter of law. In so doing, the court invaded the province of .the jury; and for this error, the judgment must be reversed, and ihe cause remanded.