Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.

This was an action against Hiram Dennis, on the following promissory note:

“$708 17.

“ Stockton, January 22d, 1855.

“ One day after date, we jointly and severally promise to pay Messrs. A. N. Fisher & Co.,-or order, the sum of seven hundred and eight dollars and seventeen cents, for value received, with interest monthly at the rate of five per cent, per month, until final payment.

“Benjamin G-. Weir, “Hiram Dennis.”

The action is brought by the payees of the note. The defendant plead non est factum. On the trial the defendant proved that when he signed the note the word “ five ” was not written in the note, the rate of interest being left in blank.

The Court below, at the request of the plaintiffs, gave the following instruction to the jury: “that if they believe from the evidence that the note sued on was signed and delivered just as it is now, save a blank where the word “ five ” is written for the amount of the interest, then it was an unlimited letter of credit, and the plaintiff was authorized to fill it up for an indefinite amount: unless the jury shall further believe, from the evidence, that the authority was in fact limited, and if they shall so believe, the note is invalid for the excess and good for the remainder.” To which instruction defendant excepted.

The defendant then asked for the following instruction : “ that if they believed from the evidence that at the time Dennis signed the note, no rate of interest was expressed therein, and that after it was signed and delivered to plaintiffs, it was filled up with the word “ five,” so as to draw interest at the rate of five per cent, per month; and that such alteration was made without the knowledge or consent of Dennis, the defendant, that such alteration vitiated the entire note, and the defendant was entitled to a verdict.”

Which instruction was refused by the Court, the defendant excepting. The jury found a verdict for plaintiffs for the amount of the note and interest at the rate of five per cent per month.

Motion for a new trial was made and overruled, and judgment entered for plaintiffs on the verdict. Defendant appealed.