Franklin v. Baker, Ex'r. men, educated men and ignorant men, that are known to prevail. Particular attention is invited to the language of the Court in Wilson v. Hayes, 40 Minn. 531. The Supreme Court of the United States, in several cases, have held the law to be that, in the absence of any proof on the subject, a change, erasure or interlineation, was made before the instrument was delivered. Little v. Herndon, 10 Wall. 26; approved in Hanrick v. Patrick, 119 U. S. 156; Printup v. Mitchell, 17 Ga. 558; Beman v. Rubel, 20 Vt. 205; 1 Phil. Ev. Cowen H. & E., notes top page 502, and note; Dailey v. Taylor, 11 Conn. 531; Hunt v. Gray, 10 Am. Rep. 232, 234; Slee v. Bloom, 10 Am. Dec. 273, note; 1 Geenleaf Ev., late ed., sec. 564, note; Crossman v. Crossman, 95 N. Y. 146-152; Huntington v. Fitch, 3 Ohio St. 445-450; Berry v. R. R., 26 Ohio St. 673; Wallace v. Jewell, 21 Ohio St. 163; Wilson v. Hayes, 40 Minn. 531. The bill of exceptions and record show that this instrument has not passed through any successive hands, but was still held by the payee. They also show that the alleged erasures and interlineations or the like, are not in either different ink or different handwriting from the other parts of the note. Therefore the reasons mentioned do not exist in this case, and the general rule that fraud or crime will not be presumed should apply. The following cases among many others support this claim. Gooch v. Bryant, 13 Me. 386; Beaman v. Russell, 20 Vt. 205; Cumberland Bank v. Hall, 1 Halst. 215; Clark v. Rogers, 2 Greene, 147; Rankin v. Blackwell, 2 John. Cas. 198; Bailey v. Taylor, 11 Conn. 531; Wilson v. Hayes, 40 Minn. 531; Stewart v. Preston, 1 Florida, 10; Thacker v. Booth, 6 S. W. Rep. 460; Gordon v. Robertson, 4 N. W. Rep. 193; Odel v. Gallup, 17 N. W. Rep. 502; Neil v. Case, 25 Kan. 510. Chas. H. Kibler, for defendant in error. The rule, contended for by plaintiff in error, would be an encouragement of the tampering with securities. Merrick v. Bowry, 4 Ohio St. 60, 71; Wallace v. Jewell, 21 Ohio St. 163, 172. Franklin v. Baker, Ex'r. The burden is on the party offering the instrument in evidence, or producing it, if it appears to have been altered, to explain the appearance. 1 Greenleaf on Evidence, sec. 564. To the same effect are the following authorities: 3 Phillips on Evidence, 152; Huntington v. Fitch, 3 Ohio St. 445, 449, 450; Albe v. Road, 6 McLean, 106; Tilton v. Ins. Co., 7 Barb. Sup. Ct. 564; Wilde v. Amsley, 6 Cushing, 314; Simpson v. Stackhouse, 9 Barr, 186; 2 Parsons on Con., 722, 723; Byles on Bills, top pages 480 and 481, and note. See, also, upon the rule as to alterations of negotiable instruments: 1 American & Eng. Ency. of Law, 514, and authorities cited in Daniel on Neg. Inst., secs. 1417, 1418; 2 Taylor on Ev., 1546, sec. 1819; Randolph on Com. Paper, sec. 1784; see 1 Am. & Eng. Ency. of Law, 512, subd. 4, and authorities cited. The defendant in error having claimed and asserted that there were suspicious alterations upon the note, it was either the duty of the court, upon inspection, to have settled the question, or it should have been left to the jury to determine it. The court did neither. Neil v., Case, 23 Kans. 510; Organ v. Osborn, 9 Bax. (Ten.) 459. MINSHALL, J. The plaintiff, Franklin, brought suit upon a note claimed to have been made by D. M. Baker, deceased, for $2,100, dated April 5, 1882. The defendant denied the execution of the note. On the trial, the plaintiff having introduced proof of the genuineness of the maker's signature, offered the note in evidence, which was admitted over the objection of the defendant. The plaintiff offered no other evidence. At the close of the evidence the defendant, claiming that the note had, as appeared from its face, been altered, asked the court to charge the jury, that if they find from an inspection of the note, that there has been suspicious alterations as to the date and amount, or either, and such alterations have not been satisfactorily explained by the plaintiff, he is not entitled to a verdict. This the court refused, and thereupon charged the jury, that an alteration. would not invalidate the note unless made after its execu Franklin v. Baker, Ex'r. tion, and that for the purpose of a defense, the burden was on the defendant to prove that it was so altered. Whether the note has been changed at any time is not clearly apparent from the face of it. The only claim of the defendant is, that an apparent blurring indicates that the figures 5 and 82 in the date, "April 5, 1882," have been changed from the figures 4 and 79, respectively; and that there are some indications that the amount, "twenty-one hundred," written in the body of the note, has been changed from "ten hundred" or "twelve hundred," and that a corresponding change has been made in figures standing for the amount on the margin of the note. A photographic copy is inserted in the bill of exceptions; and from this it would be difficult to say whether it suggests any change to have been made in the note before or after its execution. But conformable to the charge of the court, and the view we take of the case, the note may appear on its face to have been changed at some time after it had been written, without affecting its validity. For if it appears to have been changed, then the question arises whether it was so changed after or before it was executed and delivered. If before, that would not affect its validity. Such changes are frequently made, more frequently now than when men of business had less skill, and employed others to do for them what they do now as a matter of every day's practice for themselves. But if the change was made afterwards, and without the consent of the maker, the alteration constituted a crime, which the law never presumes in the absence of proof. The only presumption the law indulges in such cases is in favor of the honesty and good faith of what appears to have been done. Hence it was the duty of the jury to presume, until the contrary appeared, that any erasure or interlineation to be found on the note had been made before the note was executed, since that presumption not only consists with the integrity of the party who made it, but is conformable to human experience, at this day, of the connection between such changes to be found in promissory notes and Franklin v. Baker, Ex'r. other written instruments, and the time when they were made. Wilson v. Hayes, 40 Minn. 531, 536. We do not see that the defendant's request, the refusal of which is assigned for error, was any more proper than saying to the jury, that the burden is on the plaintiff in any case to explain an alteration in the paper sued on, where it is apparent that a change has been made. How can it be determined note," that an alteration from a simple "inspection of the was made after the signature to it? It may satisfactorily show, as in the case of an erasure or interlineation, that it was changed after it had been written, but to assume that such change was made after the note was made and delivered, without any extrinsic proof, is to presume, without evidence, that the change was fraudulently made, when, as a matter of fact, the chances are more than equal, that it was made at or before the execution and delivery of the instrument, and to conform it to the intention of the parties. The cases elsewhere are not uniform on the subject. Some hold that alterations apparent on the paper must be explained by the party producing it, and, in the absence of such explanation, it is presumed to have been made after the execution of the instrument, and so fraudulent. This it would seem was the earlier rule at common law as to deeds and similar instruments; but its inconvenience was such as to cause it to be abandoned as early as the time of Lord COKE. And the rule as to such instruments in England, and generally in this country, is, if nothing appears against the alteration, to presume that it was made at the time of making the deed, and not after. Bailey v. Taylor, 11 Con. 531, 534; Speake v. United States, 9 Cranch. 37; Wickes v. Caulk, 5 Harr. & Johns. 36; Hanrick v. Patrick, 119 U. S. 156, 172; Little v. Herndon, 10 Wall. 27, 31. In the latter case, cited with approval by Justice MATHEWS in the preceding case, Justice NELSON said: "In the absence of any proof on the subject the presumption is that the correction was made before the execution of the deed. In a recent case in the Queen's Bench, Lord CAMPBELL, Chief Justice, in delivering the opinion of the court, after referring to the note in Har Franklin v. Baker Ex'r. greve & Butler's Coke Littleton, 2256, where the rule was asserted, observed: This doctrine seems to us to rest on principle. A deed cannot be altered after it has been executed, without a fraud or wrong; and the presumption is against fraud or wrong." Doe v. Catomore, 16 A. & E. 745. In England a different rule has been adopted as to commercial paper; but, as clearly pointed out in Bailey v. Taylor, supra, and in Beaman v. Russell, 20 Vt. 205, this results from the provisions of their stamp act. There, as said by HALL, J., in the case last cited, "Any material alteration of a bill, after it has issued, or, in other words, after it is in the hands of a party entitled to make a claim upon it, is held to make a new bill of it, rendering a new stamp necessary. Under the stamp act, any alteration renders a bill void, that would make it invalid at common law; and it may be void under that act, though otherwise perfectly valid. For the consent to the alteration, by the party sought to be charged, makes the bill valid at common law; but, under the statute, the consent of all the parties to the bill is of no importance. If the bill be altered after it issues, no matter by whom, it becomes another bill, and requires a new stamp in order to make it evidence." It is evident that decisions based upon considerations not applicable to our own country are entitled to no weight as authority in its courts; and that the decisions of courts in this country in which those decisions have been simply followed as precedents, are entitled to no greater weight. And, an examination will show that they have been disregarded by courts of distinction about as often as they have been followed. In Cumberland Bank v. Hall, 1 Halstead, 215, a new trial was awarded by the Supreme Court of New Jersey after a full argument, for the misdirection of the court on the trial, in charging the jury that the plaintiff was bound to account for an alteration on the note, and unless it was shown to have been made before the execution of the note, the law presumed it to have been done afterwards. So in Gooch v. Bryant, 13 Maine, 386, it was held that the VOL. XLVIII.-20 |