Error to the District Court, Philadelphia.

This was an action of assumpsit by Charles H. Eckstein and William W. Siegfried, copartners, &c., v. James Clark, on a promissory note of which John Gr. Michener was drawer,' and which was endorsed by James Clark. The note purported to be dated January 22, 1851, and was at four mouths, for $556. The pleas were non assumpsit and payment. Also set-off, with notice of alteration, &c.

It was stated on the paper-hook on part of the plaintiff in error, that the note' in question bore upon its face the appearance of an alteration from 1850 to 1851, in different ink; some scratching alongside the 0, in 1850, or the 1, in 1851; and a blacker line on the 1; as also a blot of ink in the same spot. Also that the paper at figure 1, by holding up to the light, appeared as if scratched by some instrument.

The plaintiff’s counsel offered to read the note to the jury, without any evidence explaining the alleged alteration or who made it. The signatures to the note were, however, proved.

Objection to the reading of the note was made on the part of the defendant, but the note was admitted.

After the note was read a nonsuit was asked on part of defendant, which was refused. The objection to the note was the absence of evidence to explain the alteration.

On part of the defendant a witness was called, who said he drew the note; that the note was filled up in 1851; that he did not know of any alteration, &c. He said he took the note to Michener, and he signed it. He further said that on 3d Eebruary he was authorized by Clark to borrow $450 on the note.

It appeared that the note was negotiated by the witness.

The person to whom it was passed, was examined, and said that when he received the note it was in the same condition as it was at the trial. He further said that the note passed out of his hands about two months before it was due ; that it was sold by a broker to Eckstein '& Co., regularly.

Two points were submitted on the part of defendant. First, That the alteration in the date of a note is in a material part, and avoids the same unless done with the consent of the parties. Secondly, That it rested on plaintiffs to explain the alteration.

Hare, J., charged the jury that an alteration in a material point, after a note is signed, avoids it; but an immaterial alteration as, for instance,'-the removal of a-blot, will not.have that effect. The alteration of a date is a material alteration. If the date of this note was altered after its execution, without the assent of the maker, the plaintiff cannot recover even if. the alteration was for the purpose of rectifying a real or supposed mistake in the instrument. . ....

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