Sec 698

When a document contains interlineations and alterations, on their face trivial or tending merely to clear an obvious obscurity, the burden of proving bad faith is on the party setting up bad faith. On the other hand, the burden of explaining a suspicious alteration is on the party relying on the document as altered.2 In negotiable paper this is eminently the case; the burden being on the party producing such paper on its face altered, to explain the alteration.3 When the executo control in all cases; but certainly the second rule, and the one contended for by plaintiff in error, is not the true one. Clearly, in ordinary cases the alteration ought not to raise a presumption against the instrument, because the law never presumes wrong. The question as to time of the alteration is, in the last instance, one for the jury. It is, like any other fact in the case, to be settled by the trier or triers of the facts. Generally, the instrument should be given in evidence, and in a jury case should go to the jury, upon ordinary proof of its execution, leaving the parties to such explanatory evidence of the alteration as they may choose to offer. If there is neither intrinsic nor extrinsic evidence as to when the alteration was made, it is to be presumed, if any presumption is said to exist, that the alteration was made before or at the time of the execution of the instrument. Perhaps there might be cases where the alteration is attended with such manifest circumstances of suspicion that the court might refuse to allow the instrument to go before the jury until some explanation; but this case is not of that character." Neil V. Case, 25 Kan. 510; to this are cited Davis V. Jenney, 1 Metc. 221; Hayden V. Goodnow, 39 Conn. 164; Hunt V. Gray, 35 N. J. 227; White V. Hass, 32 Ala. 431; Paramore V. Lin-say, 63 Mo. 63; First Nat. Bank V. Franklin, 20 Kan. 264.

Burden on part}' producing altered writing.

1 Wh. on EV. sec 625; Jones V. Jones,.

1 C. & M. 721; Garnons V. Knight, 5 B. & C. 671; Xenos V. Wickham, L. R.

2 H. L. 296; Richards V. Lewis, 11 C. B. 1046; Little V. Herndon, 10 Wall. 26. In Keen V. Monroe, 75 Va. 424, we have the following in the opinion of Anderson, J.: "Whether alterations were made or not after the signing, sealing, and delivery of the instrument, without the knowledge or consent of the obligor, is a question of fact, which may properly be submitted to the jury; but whether such alterations were material or not, is a question of law to be decided by the court. Steele's Lessee V. Spencer, 1 Peters R. 552; Stephens V. Graham, 7 Serg. & R. 505; Bowers V. Jewell, 2 N. Hamp. R. 543." "If the deed can be enforced without filling the blank, filling it is immaterial. Eagleton V. Gutteridge, 11 Mees. & Welsb. 465; Smith V. Crooker, 5 Mass. R. 538; 2 Rob. Prac. (new), 15. See also Ross V. Overton, 3 Call, 309, and Whiting V. Daniel, 1 Hen. & Mumf. 391.".

2 Wh. on EV. sec 621, 629; Leake, 2d ed. 813; Cliflord V. Parker, 2 M. & G. 909; Simmons V. Rudall, 1 Sim. N. S. 136; Sibley V. Fisher, 7 A. & E. 444; Miller V. Stewart, 4 Wash. C. C. 26; Wood V. Steele, 6 Wall. 80; Boothly V. Stanley, 34 Me. 515; Ches ley V. Frost, 1 N. H. 145; Davis V. Jenney, 1 Met. Mass. 221; Vose V. Dolan, 108 Mass. 155; Bailey V. Taylor, 11 Conn. 531; Jackson V. Jacoby, 9 Cow. 125; Herrick V. Malin, 22 Wend. 388; Simpson V. Stackhouse, 9 Barr, 186; Farmers' Ins. Co. V. Blair, 82 Penn. St. 33; Ramsey V. McCue, 21 Grat. 349; Johnson V. McGahee, 1 Ala. 186; McCormick V. Fitzmorris, 39 Mo. 24; Munroe V. Eastman, 31 Mich. 283; Page V. Danaher, 43 Wis. 221; North V. Henneberry, 44 Wis. 306; Muckle-roy V. Bethany, 27 Tex. 551; as to presumptions in such cases, see Wh. on EV. sec 621-9, 1313.

3 Infra, sec 700; Knight V. Clements, 8 Ad. & El. 215; Hills V. Barnes, 11 N. H. 395; Humphreys V. Guillow, 13 N. H. 385; Simpson V. Stackhouse, 9 Barr, 186; Davis V. Carlisle, 6 Ala. 707; Commer. Bk. V. Lum, 7 How. (Miss.) 414; see Clifford V. Parker, 2 M. & G. 909; Cariss V. Tattersall, 2 M. & G. 890; Taylor V. Moseley, 6 C. & P. 273; Gardner V. Walsh, 5 E. & B. 83. The Roman law, assuming that a party would not be likely to sign a dispositive document containing important interlineations and corrections without an explanatory memorandum, before signature, throws on the party producing such a document the burden of proving tion of altered negotiable paper is denied, and the alteration on its face is suspicious, the burden is on the plaintiff to prove the paper was executed after the alteration, or that the alteration was agreed to by the defendant1 "Whether the proof shows that the alteration was made before execution of the document, or whether, if made afterwards, it was made with the consent of the other party, is a question of fact, to be determined by all the circumstances of the case, unfettered by any presumption of law. The burden of proof of explaining the alteration, if material, is, as has been seen, on the party producing the document; but this is because he is the actor in the matter, and not because there is any presumption of law against him. The question is one purely of fact, to be determined by preponderance of proof.2 The question is, what that such interlineations or corrections were made before signature. If, however, a right is rested on a supposed nullity, and the plaintiff claims upon the document as it stands, without such corrections, and the defendant pleads that such corrections are genuine and valid, the prevailing opinion is that if the corrections impart a new sense to the document, and are not on their face the introduction of casually omitted words, they may, prima facia, be disregarded. In such case the burden is on the party relying on them to prove their validity.1.

1 Infra, sec 700; Wilde V. Armsby, 6 Cush. 314; Morris V. Bowman, 12 Gray, 467; Simpson V. Davis, 119 Mass. 270; see Bishop V. Chambre, M. & M. 116; Knight V. Clements, 8 A. & E. 215; Hill V. Cooley, 46 Penn. St. 178, and cases cited in Wh. on EV. sec 62.9.

2 Bishop V. Chambre, M. & M. 116; Knight V. Clements, 8 A. & E. 215; Gooch V. Bryant, 13 Me. 386; Beaman V. Russell, 20 Vt. 205; Simpson V. Davis, 119 Mass. 270; Bailey V. Taylor,.

11 Conn. 531; Penny V. Corwithe, 18 John. 499; Nazro V. Fuller, 24 Wend. 374; Cumberland Bk. V. Hall, 1 Halst. 215; Heffelfinger V. Shutz, 16 S. & R. 41; Hudson V. Reel, 5 Barr, 279; Hill V. Cooley, 46 Penn. St. 178; Wickes V. Caulk, 5 Har. & J. 36; Wilson V. Henderson, 9 Sm. & M. 375; though see Chesley V. Frost, 1 N. H. 145.

In a learned opinion by the supreme court of Kansas in 18S0, it is said that on the question of the burden of proof in such cases there are the four following distinct theories: "First, that an alteration apparent on the face of the writing raises no presumption either way, but the question is for the jury; second, that it raises a presumption against the writing, and requires therefore some explanation to render it admissible; third, that it raises such a presumption when it is suspicious, otherwise not; fourth, that it is presumed, in the absence of explanation, to have been made before delivery, and therefore requires no explanation in the first instance. It is impossible," it is further said, "to fix a cast-iron rule does the document itself show? If, on the one hand, the alteration is on its face trivial, it cannot of itself exclude the document from being admitted in evidence. If, on the other hand, the alteration is material, and of a suspicious character, it should be explained before the document is admitted in evidence.1 - Whether an erasure throws the burden of explanation on the party producing a document depends upon the character of the document. It would be very strange if a deed, engrossed and executed with great apparent precision, should contain erasures unnoticed in the attestation; and erasures thus unnoticed ought to be explained. It is otherwise with fragmentary memoranda and with papers not, from the nature of the case, carefully prepared.2

1 Wh. on EV. sec 621.