¶1The alteration of the note was material, ) and appears to have been made after its deliveiy to the ( payee. The presumption is, that the alteration was •' made by him ; and it is well settled, that such alteration , of a note by the payee, without the assent of the maker, ,. renders the note void. The alteration being shown, and the presumption arising that it was made by the payee, the burden was upon him to prove the assent of the maker to it. If he failed to make that proof, he was not entitled to recover, either upon the note, or under any count founded on the same consideration with the note. 'For, although the note, not being under seal, may not be j a merger of the contract for which it was given; yet, as ; the note was at first valid, there can be no recovery on the contract, unless the note still continues valid, and is ¡ produced in evidence, or proved to have been lost by \ time or accident. And to allow the payee, after he had j designedly made a material alteration in the note, without j the assent of the maker, to recover upon- the contract for which the note was given, would be to depart from the , sound and just principle, that “ no one shall be permitted ■ to take the chance of committing a fraud, without running any risk of losing by the event, when it is detected.” Master v. Miller, 4 T. R. 329; Martendale v. Follett, *4331 N. H. Rep. 95; Chesley v. Frost, ib. 145; Humphreys v. Guillow, 13 ib. 385; Newell v. Mayberry, 3 Leigh, 250; Davidson v. Cooper, 13 Mees. & Welsby, 342; 1 Greenl. on Ev. § 121.
¶2"We will not say, that the facts proved by the evidence in the present case were not sufficient to justify the inference by the jury, that the alteration was brought to the knowledge of the defendant; 'and that, when brought to his knowledge, he assented to it. But the com't is not authorized, in such a case, to draw an inference of fact; and without such inference, the facts proved did not Avar-rant the court to declare, as a conclusion of law, that the defendant had assented to the alteration. As his assent is not stated by any vdtness, nor admitted, the court should have left it to the jury to determine whether or not he had assented to the alteration ; and should have charged them, that if they believed he had assented to - it, they should find for the plaintiff the amount of the note and interest. But, instead of doing so, the court charged the jury, that if the}7 believed all the evidence, they must find for the plaintiff the amount of the note and interest. In thus charging the court erred, because thereby it took from the j ury the determination of the question of fact, whether the defendant had or had not assented to the alteration.
¶3For the error above pointed out, the judgment is reversed, and the cause remanded.