The action was debt, brought by the defendants against the plaintiffs in error, on a note under seal, drawn by Pitcher & Remsen, payable to Patrick, in his life-time, for three hundred dollars. The pleas were payment, and set-off, and failure of consideration. The record shews there had been a previous trial, when Remsen offered an account against Patrick in evidence, as a set-off, for the rejection of which the judgment then rendered, was reversed on error.
On the second trial, which we are now to revise, the note was offered in evidence, when, as appears from the bill of exceptions, two lines had been drawn, with pen and ink, transversely, through the face of the note, crossing each other, and extending over the entire instrument, including the names of the makers. The defendants’ counsel objected to the note as evidence, and contended that the cross lines so drawn was sufficient evidence that the note had been can-celled or paid ; which objection the Court overruled, and suffered the note to go to the jury as evidence.of said debt, “ and charged the jury that said crossing was not sufficient evidence of cancelling or payment.”
In the decision and charge mentioned, the Circuit Court is supposed to have erred.
That the note, crossed as it was, remained admissible evidence and proper for the consideration of the jury, either with or without explanation, I think sufficiently clear. The record shews nothing contesting the %cts, that the present plaintiffs executed the *480instrurueat, and that the same was originally valid, according to its import : unless it could be inferred that the instrument having been cancelled at the time it was drawn, was never intended or delivered as a bond. This, however, under the issue mentioned, can not be presumed ; for had such been the case, the obligors, instead of the implied admission of the execution, arising from their pleas, should have, availed themselves of the plea of non est factum. Could the cross lines be regarded as an erasure or interline-ation, in legal parlance, the defence ought to have been the same; but it can not be so considered : the effect of either would be to vary the.reading, which these lines had no tendency to produce. The law is held to be, that, among the variety of other matters of defence, under, the plea of non est factum, the defendant may prove, “ that the deed was cancelled before the plea; that a. material erasure was made in the deed, or that the seal was torn off before the plea; but this, it seems, is but presumptive evidence of such an act on the part of the obligee as will cancel the deed ; for the latter may shew that the seal was torn off by accident; or that the- alteration was made by a stranger, in a point not material, and without his privity. But an alteration by the obligee himself, even in an immaterial point, will, it is said, avoid the deed.”a
'As the cancelling or crossing this paper, has not ^ efpeCj. f0 vary its contents, and as it is presumed from the pleas to have been done since the issue was joined, the argument, on the part of the defendant in error, can not prevail, which insists that this.ground of defence can only be claimed under the plea of non est factum.
*481It is also contended, on the authority of Smith vs. Woodward,a referred to in 2 Starkie, 476, note b—“ that if tiso seal be broken oiF ia Court, the deed shall bo enrobed. for the benefit of the parties; for, where any (id; ¡3 in impaired whilst in the custody of the law, it is restored l?y the benignity of the law as far as possible.” If it be true, that, after a deed has been plead ;-,!, with a proferí, it is, according to the English practico, considered in the custody cf the law, we can not disregard the well known. fact, that the more common practice with us, is otherwise. The usual course here, is understood to be, that the plaintiff’s counsel retains possession of the evidence of his demand until the trial comes on; and even, if a new trial be granted afterwards, the instrument, whether remaining in the files of the office, or not, becomes again subject to his control. How far craving oyer of the bond by the defendant, and having it spread on the record, would abridge this authority and control of the plaintiff, it is unnecessary to.enquire, as in this case there was no such claim. It is clear the defendant can, at no time, exercise any legitimate power over the plaintiff’s evidence of debt, until it is surrendered to him. If, therefore, at any time before a final trial, the note or bond on which the action has been brought, undergo any alteration, or receive any impression, indicating its destruction or satisfaction, it would appear to be but a necessary and reasonable requisition on the plaintiff that he should afford the explanation. . If the act done was the result of mistake or accident; or if any effect was designed'by it different from its ordinary import, he alone must-be presumed to knotv the circumstances, and to possess the means of explanation.
*482As a case supporting this doctrine of presumption, may be noticed a Nevv-Hampshire decision—Chesley vs. Frost.a There it was held, that a material alteration of a deed of land, while in the possession of the grantee, is prima facie, fraudulent, and is presumed to have been made by the grantee himself.b
An early decision of this Court, (Tubb vs. Madding,c) has some application to the question involved in this case. Tubb sued on a note on which credits appeared to have been endorsed, which had been erased. It did not appear that any evidence of explanation was offered by either party. On error, it was ruled-that the Circuit Court should have left it to the jury to determine, whether from the evidence and circumstances, the credits had been entered by mistake, or fraudulently erased, and to what amount payment had been made: that, though the credits remained legible, the Circuit court was not authorised to instruct the jury to allow them. If an unexplained erasure of an instrument, while in the possession of a person to be benefited thereby, is to be received as evidence of the destruction of the writing, surely a similar alteration of a deed, while in the possession of the party to be prejudiced by its destruction, must furnish a stronger inference or presumption against its' validity. We do not now express any opinion respecting the authority of that case; but we maintain that the cross through the face of the bond, in this case, was evidence tending to shew that it had been cancelled or satisfied, and that the jury should have been instructed to regard it as presumptive evidence thereof. The Circuit Court decided correctly in permitting the instrument to go as evidence to the jury; and either .party should have been allowed to explain the cir*483cumstances under which the cross was. made. . If, however, no other evidence was introduced on either side, (as appears to have been the case,) it was the province of the jury to draw such inference from-the circumstances as appeared to them rational and just, either in favor of, or against the validity of the demand.
But, for the defendants in error, it is further contended, that this matter of defence must have arisen subsequent to the commencement of the suit, and even after the pleas were filed ; and therefore the de-fence is not sustainable. On the contrary, it is in- ' sisted that the cancelling or crossing the bond while in the possession of the obligee, or his representatives, may be construed as an admission of an earlier payment, even before the issue was joined, or the suit commenced; but that this is immaterial, for .the defendant below was entitled, as a defence, to any satisfaction at any time before the trial. In support of this, latter position, the case of Baylies, et al. v. Fettyplace, et al.a is cited. In that case, Sedgwick, J. who appears to have been sustained by the Court, held, that “ in all cases of assumpsit, whatever shews that a complete satisfaction has been received by the plaintiff before the trial, may be given in evidence under the general issue.” He remarks further, “ that before the decision of the case of Birds vs. Randall,b it might have been doubted, whether such a satisfaction could be given in evidence under the issue’ of not guilty, in an action for a tort; but it ought never to have been a doubt, whether there was a distinction between those cases, where the satisfaction was made before, and those where it was made after the commencement of the suit. In the reason, nature, or *484justice of the thing, there can be no such distinction.” The case of Birds vs. Randall appears to have been an action for a tort committed by seducing the plaintiff's journeyman to leave his service. The trial was had upon the general issue, when, on objections made, the Court decided, “ that a full satisfaction, after the commencement of the action, and before the trial., need not be pleaded, hut might be given in evidence under the general issue.”
A decision of this Court may also be invoked in aid of the same principle. The case of McMillan vs. Wallace,1 was an action of assumpsit, for use and occupation. The pleas were the general issue, payment and set-off. On error, the Court recognised as a general rule, that no matter subsequent to the commencement, of the suit, can be given in evidence under the general issue ; but sustained the position, as an exception to the rule, that evidence of subsequent, partial payment, may be admitted. That the plaintiff, however, in such case, is entitled to recover his costs at least. And, as respects the objection, that the plaintiff would be in danger of surprise from this course, it was remarked, that this danger or inconvenience was not materially different from that to which plaintiffs are often subject, under different circumstances ; .and, should it so happen, the remedy must he by an application for a new trial.
At present, we decline a farther investigation of the doctrine, whether our former decision fixed a proper standard of reduction, by evidence of subsequent satisfaction — -Whether the plaintiffs demand can only be reduced so as .to leave a balance in his favor to carry costs, or whether by such defence his action can be entirely defeated, as seems to be the doctrine of *485the other cases referred to. A definite adjudication on this point is not essential to the decision of the present case.
It may be remarked that payment or satisfaction of a demand, pending a suit for it, can only be made, with the knowledge and consent of the plaintiff or his agent; and if he has consented to deprive himself of the evidence of his claim, or to destroy it, he has no just ground of complaint. The error we find in the record, is confined to the opinion of the Circuit Court, which instructed the jury, that the crossing the bond as described, “was not sufficient evidence of canceling or payment,” we think that was a matter of fact which they had a right to determine ; and for which the judgment must be reversed, and the cause remanded.
Lipscomb, C. J. not sitting.2 Starkie, 480 and authorities cited there.
4East, 585
Adams, 145.
4Am.Dig. 185.
Minor’sR. 129.
7 Mass.R.334.
3 Barr. 1345.