judges thereof to act in respect to the appraisal of damages for a taking in the exercise of eminent domain was decided in Stimets v. Highgate, 81 Vt. 231, 69 Atl. 878, where it is said of section 4, of No. 125, Acts of 1906, that "the railroad commissioners take the place, certainly in respect to the ap

It is not to be understood that an impartial commission provided by the Legislature, determining facts after due notice and upon legal evidence, and so exercising quasi judi- | cial functions, does not meet the requirements of the Constitution, as much as a commission appointed by the court to determine and report facts. The report of either commission is under the control of the court to the same extent. Bacon v. Boston & Maine, 83 Vt. 421, 76 Atl. 128; Bacon v. Boston & Maine, 83 Vt. 528, 77 Atl. 858; Sabre v. Rutland R. Co., 86 Vt. 347, 85 Atl. 693.

As to the right of a party aggrieved by an order or "judgment" of the Public Service Commission to resort to the courts, we repeat in substance what was said in the Sabre Case, that, if a party pursues the orderly and not burdensome course pointed out by the statute, he may present to this court the questions of the rulings of the commission in receiving or excluding evidence, the sufficiency of the evidence to sustain the findings under the rule that a mere scintilla of evidence will not sustain a finding, and the sufficiency of the findings to warrant an order under the rule that the order must not be unreasonable or arbitrary in its character, and that the powers given to this court on appeal are supplemented by common-law remedies so as to secure to every party interested in the action of the commission a vindication of his full rights against arbitrary and unreasonable action, usurpation of powers, and acts in excess of authority.

The functions of the Public Service Commission, and its impartial character, considered in connection with the supervisory power of the courts, render it not only eminently fit, but unobjectionable on constitutional grounds, that it should be intrusted with the determination of the questions which it is authorized to determine by the legislation now under consideration.

That the railroad commissioners may be legally substituted by the Legislature for

provided by V. S. 3814 (P. S. 4398), and this completes the process of taking land under this act, when the taking is by the railroad corporation, and constitutes due process of law, for every one is given an opportunity to be heard on all questions in which they are interested." In that case it is noted that the appeal to this court had been substituted for an appeal to the court of chancery, a matter since fully discussed and decided. C. V. R. Co. v. State & Hartford, 82 Vt. 145, 72 Atl. 324. In the Stimets Case it was held that the method of taking provided by the act did not apply to a taking by towns simply because the Legislature had not made it so applicable.

Courts that differ with us as to the character of the question of necessity are agreed that the question of compensation must ultimately be left to an impartial tribunal; but they do not hold that for that reason the matter must be determined by the judiciary department. Backus v. Fort Street, etc., Co., 169 U. S. 569, 570, 18 Sup. Ct. 445, 42 L. Ed. 853; .United States v. Jones, 109 U. S. 513, 519, 3 Sup. Ct. 346, 27 L. Ed. 1015. The proceeding for the ascertainment of value, says the Supreme Court of the United States, "may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon." United States v. Jones, 109 U. S. 513, 519, 3 Sup. Ct. 350, 27 L. Ed. 1015.

[5] It is claimed by the petitioner that the section of the statute in question, section 13, No. 116, of the Acts of 1908, is unconstitutional because it empowers the Public Service Commission to render "judgment" in the matter of necessity and compensation, and that it cannot render judgment since it is an administrative body. But this objection raises no serious question. The findings, decisions, and determinations of the commission may well enough be called judgments. The word "judgment," as here used, is to be given a comprehensive rather than a narrow and technical meaning, is to be given a meaning which comports with a constitutional purpose.

[6] The question remaining in the case is whether the general statutory provision under consideration, enacted in 1908, is applicable in view of the fact that the charter of the defendant lighting company, as amended

Action by the Barton Savings Bank & Trust Company against I. Stephenson and others. Judgment for plaintiff against defendant Stephenson and in favor of the other defendants, and plaintiff brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Young & Young, of Newport, for plaintiff. Harland B. Howe, of St. Johnsbury, and J. W. Redmond, of Newport, for defendants.

MUNSON, J. The suit is upon a note, the body of which is as follows: "On demand after date for value received, we each as principal, jointly and severally promise to pay the Barton National Bank or order, at their banking rooms in Barton, Vt., seven thousand dollars, with interest payable semiannually on the first day of June and December each year." The note bears the payee's indorsement to the plaintiff. There are ten siguers to the note, all of whom are defendants. The date of the note as originally drawn was June 1, 1908. The face of the note shows a change by drawing lines in ink across "June 1," and writing above this the words "December 1st." The part thus crossed remains perfectly legible.

From May, 1904, until the giving of the note in suit, the Barton National Bank held a note identical in terms with the note in suit, which was signed by defendant Stephenson and nine others, three of whom had deceased before the new note was given, and six of whom became signers on the new note and are defendants herein. The remaining signers on the new note were procured on the requirement of the bank to take the place of the former signers who had deceased. The note in suit was prepared by the cashier of the bank after the interest on the old note had been paid to June 1, 1908, and was mailed to Shephenson for the required signatures July 10, 1908. Several letters urging attention to the matter were written to Stephenson in the next four months. December 3, 1908, he paid the interest on the old note to December 1st. The note in suit was delivered to the bank by mail in exchange for the old note March 10, 1909. March 15, 1909, the plaintiff bank purchased from the liquidator of the Barton National Bank all its assets, including the note in suit. The first note was not presented to the commissioners on the estate of either of the three signers who had deceased. The three signers of the new note who were not on the first note are Horace S. Richardson, Homer W. Tillotson, and J. S. Brahana. Richardson and Tillotson were sons of deceased signers of the first note, and Brahana was the brother of a deceased signer. Richardson testified that

ing further appears as to any knowledge of these signers regarding the first note. The signatures to the note in suit were procured at different times from July, 1908, to March, 1909. Subsequent to the signing of the note and just before sending it to the bank, Stephenson made the change above described, without the knowledge, authorization, or consent of any of the other defendants, unless the law implies such authority or consent from the conduct of the parties. Stephenson testified that he made the change to have the note correspond with the date to which interest had been paid on the old note.

The declaration contains the general counts The first special and four special counts. count declares on the instrument as a note dated June 1, 1908; the second declares on it as a note dated December 1, 1908; and the third declares on it as a note delivered to the Barton National Bank on the 10th day of March, 1909, without alleging a date. The plaintiff recovered a judgment against

Shephenson, and the other defendants had

The

judgment for their costs. In speaking of the defendants, the reference will be to the nine defendants who had judgment. case antedates the operation of No. 99, Acts of 1912, known as the Negotiable Instruments Act.

court

[1] The plaintiff claims that the should have held, or permitted the jury to find, that the words "December 1st" were a mere memorandum of the time from which interest was to be figured, and not an alteration of the date. It is true that entries may be made on the face of a note, which, if made to serve the purposes of a memorandum and without an intention to alter the instrument, will not affect its validity. Carr v. Welch, 46 Ill. 88; Maness v. Henry, 96 Ala. 454, 11 South. 410. If Stephenson had written these words in pencil or red ink above the date and without crossing it out, the entry could doubtless be treated as a mere memorandum; but the writing of one in connection with the crossing out of the other, both in the same durable substance, forbids this construction. An inspection of the note shows an alteration in fact, and Stephenson's testimony as to his purpose in making it cannot convert it into a mere memorandum.

The general proposition that any material alteration of a note will render it void cannot well be questioned. The rule governing the subject of the alteration of writings has been stated in these terms: "Any material alteration in a written contract, made without the consent of the party sought to be charged thereon, at any time after its execution by him, renders it void as to him, even in the hands of an innocent holder." The more recent statements of the rule confine

ing or che claiming under him. Notes 10 Am. Dec. 267, 86 Am. St. Rep. 82. A material alteration is one which makes the instrument speak a language different in legal effect from that which it originally spoke; an alteration which produces some change in the rights, interests, or obligations of the parties to the instrument. 1 Green. Ev. § 565; note 86 Am. St. Rep. 86. An alteration in the date of a writing, if it results in altering the legal effect of the instrument, as by changing the day of maturity, is a material alteration. Wald's Pollock, on Con. 871; 2 Cyc. 201. The date of a note ordinarily evidences the inception of the undertaking, fixes the time of payment, and determines the period of limitation; and, when this is the case, any change in the date will impart to the note a new legal effect and operation. 2 Dan. Neg. Inst. §§ 1376, 1377; Newman v. King, 54 Ohio St. 273, 43 N. E. 683, 35 L. R. A. 471, 56 Am. St. Rep. 705; Lisle v. Rogers, 18 B. Mon. (Ky.) 528; Miller v. Gilleland, 19 Pa. 119.

But the plaintiff urges upon several grounds, that while a change in the date of a note may ordinarily be material, it cannot be so regarded in the circumstances of this case. The specific claims presented will be best stated and considered in connection with some reference to the cases. In referring to the authorities upon this subject, it is important to notice the relation sustained to the writing by the one making the alteration. In many of the cases the alteration was made by the payee of the note after its delivery. In other cases, as in the case submitted here, the alteration was made by one of several makers, after the note had been signed by

others, and before it was delivered. In cases of the first class, the question manifestly relates to the effect of an alteration in a completed and existing contract. In cases of the

second class, it may be said, as to those who had previously signed, that the alteration comes in to prevent the completion of a contract, rather than to avoid a contract which has come into existence. This view is presented by the defendants, and will be found in the reasoning of several decisions. Fay v. Smith, 1 Allen (Mass.) 477, 79 Am. Dec. 752; Draper v. Wood, 112 Mass. 315, 17 Am. Rep. 92; Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254.

The argument of the plaintiff seems to raise the question whether Stephenson is to be regarded as a party to the writing within the meaning of the rule. Authorities are quoted which say that an alteration, to avoid an instrument, must be made by one who is entitled to some right or benefit under it, and that a joint promisor or maker is not such a party. Note 17 Am. Rep. 100; Fullerton v. Sturges, 4 Ohio St. 529. But the rule is generally taken to apply to any party to the instrument; and it has been specifically held in numerous cases that an alteration

by one obligor or principal, without the consent of his co-obligor or surety, discharges the latter. 2 Cyc. 150, 151, 154; Montgomery v. Crossthwait, 90 Ala. 553, 8 South. 498, 12 L. R. A. 140, 24 Am. St. Rep. 832; Britton v. Dierker, 46 Mo. 591, 2 Am. Rep. 553; Greenfield Sav. Bk. v. Stowell, 123 Mass. 196, 25 Am. Rep. 67; Goodman v. Eastman, 4 N. H. 455; Wood v. Steele, 6 Wall. 80, 18 L. Ed. 725. The writer of the note in 17 Am. Rep. 98, remarks that the case last cited was apparently not very well considered; but the decision has since been frequently cited by the state courts and been recognized as authoritative by the court which rendered it. Mersman v. Werges, 112 U. S.. 139, 5 Sup. Ct. 65, 28 L. Ed. 641. And in Jones v. Banks, 40 Ohio St. 139, 48 Am. Rep. 664, it was remarked that all that was said by the writer of the opinion in Fullerton v. Sturges on the law relating to a material alteration was obiter. It is only in the case of a note that has been delivered that it can properly be said that an alteration, to be destructive, must be made by, or by the authority of, one who takes some benefit under it. It is now almost universally held that the alteration of a written instrument by a stranger will not render it void; but courts have had some difficulty in determining who shall be considered a stranger. There is a class of cases where a note is procured by an agent, delivery to whom is delivery to the payee, but whose subsequent authority is limited to the custody and transmission of

the writing; and alterations made by these In this class are Bigelow v. Stilphen, 35 Vt. persons are treated as the acts of a stranger. 521; Equitable Mfg. Co. v. Allen, 76 Vt. 22, 56 Atl. 87, 104 Am. St. Rep. 915. The plaintiff claims that Stephenson had authority as agent of the other defendants to change the date, and claims further that, if he had no such authority, his act was the act of a stranger and of no effect.

Note

[2] There is nothing in the relation ordinarily existing between the principal makers of a note, or between principal and surety. that authorizes one to change the writing after it has been signed by the other. 86 Am. St. Rep. 107. No authority to alter will be presumed from the mere fact that one leaves the note with the other to be delivered. Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254. And it is said in general terms in the note above cited that no agency to alter will be implied from any other agency, special in its nature. See Walsh v. Hunt, 120 Cal. 46, 52 Pac. 115, 30 L. R. A. 697. No special argument is made in support of the claim of agency; and the question is apparently advanced for decision to clear the ground for the further claim that, if Stephenson had no authority to make the change, his act was the act of a stranger and left the note unimpaired.

[3] This further claim is based upon the fact that by the terms of the note each sign

er assumed the liability of a principal. It is said that each of the other principals left the note with Stephenson to be delivered to the bank, and that, as regards that purpose, his relations to the note and to the other principals were the same as they would have been in the case of an ordinary messenger. This cannot be so. Stephenson was a party to the note, and was holding it for delivery for himself as well as for the others. The other signers intrusted it to his possession in his capacity as comaker, and his acts in connection with that possession cannot be accounted the acts of a stranger.

[4] But the plaintiff claims that the change of date in this instance was an immaterial alteration, because its effect was simply to make the note conform to what all the makers intended it to be. The courts of several states recognize the doctrine that there may be special circumstances from which the law will imply an authority to alter. Note 86 Am. St. Rep. 116. The cases are mostly those of alterations by the promisee; and the alterations are generally justified upon the ground that they were made to correct a mistake and thus make the writing conform to the intention of the parties. These alterations have included the correction of mistakes in the date, the completion of defective statements of the amount of the debt and the period of credit, and the correction of errors in the name of the payee. Among the cases of the latter class is Derby v. Thrall, 44 Vt. 413, 8 Am. Rep. 389. There the payee of a note, who was known to both debtor and surety, and to whom the surety understood the note was being given, was commonly called Frank, and the debtor had him designated as Franklin in the note as drawn, supposing that to be his first name. His name was in fact Francis E., and the debtor permitted him to alter the note in that respect on receiving it. The court treated this as an immaterial alteration. See, also, Ames v. Colburn, 11 Gray (Mass.) 390, 71 Am. Dec. 723; Duker v. Franz, 7 Bush (Ky.) 273, 3 Am. Rep. 314; Boyd v. Brotherson, 10 Wend. (N. Y.) 93; Conner v. Routh, 7 How. (Miss.) 176, 40 Am. Dec. 59; Cole v. Hills, 44 N. H. 227.

isted-with the June interest day past and the interest paid. During the delays incident to procuring the signatures of the required number, another interest day passed, and the additional six months interest was paid, and the date of the note was changed to correspond with the altered situation. The change was not the correction of a mistake; for there was no mistake in the date as first entered. The same considerations which determined the date in the first instance called for the subsequent change. This change in the date, in connection with the payment of six months' interest, exactly maintained the situation which these six defendants contemplated when they signed the note.

The cases above referred to doubtless afford some support to the plaintiff's contention regarding these matters, as applied to the six defendants; but the decisions of other courts of equal authority deny the right of one party to a writing to alter it, even though the alteration makes it conform to the understanding of all the parties. If we were to sustain the claim of an implied authority upon the case presented, it would greatly extend the application of the rule adopted in Derby v. Thrall. But we are not called upon to determine this question, for it is obvious that the above reasoning has no application to the three defendants who were not parties to the first note, and no point was made in the court below which suggested any ground of recovery not appli. cable to all the signers. No claim was made to the court in any form at any stage of the trial that left room for the theory that there might be a recovery against some of the nine defendants and not against all. The charge of the court, in treating the right to alter as depending upon consent, evidently referred to consent in fact, and not by implication of law.

[5] The plaintiff also contends that the change in the date is immaterial, because it in no way altered the rights or liabilities of the parties. It is argued that the course of the transaction was such that the change did not affect the operation of the statute of limitations. The note was not completed as to the signatures and delivered to the bank until March 10th, more than three months subsequent to the date of the note as altered. It is said that the date of the delivery was the first day when suit could have been brought on the note, and that it was this that determined the expiration of the period of limitation, and not the change in the date. It is not necessary to take up the inquiry in this form. It is true that Stephenson would have had the right to deliver the note when he did if nothing more than the delay had intervened. But this writing had ceased to be, or had failed to become, the note of the defendants, because of the alteration, before the delivery was made.