Court. The gloves furnished no criterion by which to judge of the character of the contest, nor of the manner in which it was conducted." 63 N. Y. 522) when the cases referred to were discussed, and although the court seems to have changed its rule in that case on a question of evidence as to the custom of having a flagman, nevertheless it declared that it had been decided that it was not the duty of a railroad company to keep a flagman at a crossing, and it was not chargeable with negligence for the omission of any such supposed duty. The principle involved in this proposition is discussed elaborately. The court said in the course of the discussion: 'In a given case the evidence of the absence of a flagman is received, and the judge charges the jury that if they find that it was the duty of the defendant, under the circumstances, to keep a flagman at the crossing, the omission of that duty is negligence, which may make the defendant liable. Under such a charge that duty is made the central and controlling fact, and if the jury should find that the defendant had run its train with the greatest care in other respects, and that it was guilty of no other negligence, and yet should find that it had omitted that duty, they could find a verdict against the defendant. * * * Under such a charge as I have supposed, the jury is put in the place of the Legislature, and its decision as to the duty has the force of statute law, and hence such a charge has properly been condemned by the courts of this State.' 'In another case,' the court continued, 'the evidence is received, and the jury is charged that the defendant owed no duty to any one to keep a flagman at the crossing, but that its sole duty to travellers upon the highway was to run and manage its trains with proper care, so as not to injure them in the exercise of their lawful rights, and that upon the question whether such care was exercised, they must consider all the circumstances ex The question of the necessity of a flagman at a railway and highway crossing is considered in Coyle v. Long Island Railroad Co., 33 Hun, 38. It is held that the omission to station a flagman may be considered as a circumstance bearing on the question of negligence, yet it is not conclusive. The court cite Beisiegel v. New York Cent. R. Co., 40 N. Y. 9; Grippen v. Same, id. 46; Weber v. Same, 58 id. 458; McGrath v. Same, 59 id. 468; 63 id. 522; Houghkirk v. Pres't, etc., Delaware and Hudson Canal Co., 92 id. 219. The court said: "In Beisiegel v. New York Central Railroad Co., 40 N. Y. 9, in which the judge charged the jury substantially that it was a question for them to determine whether the crossing referred to in that case was in so populous a portion of the city that it was due to the public safety and common prudence that the company should keep a flagman stationed at that point, and if they determined that it was then an omission to do so was negligence, the court declared that the charge was error, and a new trial was granted. And in Grippen v. New York Central Railroad Company (same vol., p. 46), the court said: 'The question to be submitted to the jury is not therefore whether in their judgment due care required the railroad company to keep a flagman at the station to give warning; not whether that was a suitable mode of giving notice of the approach of a train; not what signal would be sufficient to give such notice. But the question is whether, under the actual circumstances of the case, the company exercised reasonable care and prudence in what they did, and whether its neglect caused the injury complained of. In Weber v. New York Central Rail-isting at the time and place of the accident, and road v. Company, 58 N. Y. 458, the court said: 'The judge had before distinctly instructed the jury that there was no law making it the duty of the defendant to have a flagman, and that it was not negligence in it not to have one at this particu| lar street crossing;' and further, "thus one of theerrors that led to a reversal of the judgment in Beisiegel v. New York Central Railroad Company, and Grippen v. The Same, was avoided.' And in McGrath v. New York Central and Hudson River Railroad Company, 59 N. Y. 468, it was held that where a railroad company had been accustomed to keep a flagman at a crossing, the fact of his absence or withdrawal did not excuse a traveler from the charge of negligence in omitting the use of his senses. He had no right to interpret the absence as an assurance of safety. And it was declared that in an action to recover damages for injuries sustained by a traveler at a crossing, the receipt of evidence of such custom, and that the flagman was absent at the time of the accident, was error. "The case last cited (the McGrath case) was again before the Court of Appeals (see among them the fact of the absence of a flagman 1 1 well stated in McGrath v. New York Central and Hudson River Railroad Company, 63 N. Y. 528. It was there said it would be error for a judge to instruct a jury that it is the duty of a railroad company to keep a flagman at a crossing, or to submit to a jury the question whether it ought to have kept a flagman there;' and the court said the reason was carefully pointed out; that a railroad company is not bound and owes no duty so to station a flagman, and negligence cannot be predicated of the omission; that the fact may be proven as one of the circumstances under which the train was moved, and by which the degree of care requisite in its handling and running may be affected; so that the question never is whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in the view of his presence or absence, the train was moved with prudence or negligence. And the court said further: The jury 'must have gone to their deliberations with the final impression upon their minds that they were at liberty to find that the defendant ought to have stationed a flagman at the crossing, and that omission constituted negligence upon which a verdict could be founded. For this error we think there should be a new trial.' This case is the latest exposition of the law relative to the stationing of flagmen in the management of railroads." See Pittsburgh, Cincinnati and St. Louis Ry. Co. v. Yundt, 78 Ind. 373; S. C.,41 Am. Rep. 580; Welsch v. Hannibal and St. Jo. R. Co., 72 Mo. 451; S. C., 37 Am. Rep. 440. A THE TEMPLE CHURCH. FTER a few years' absence from London it is hardly safe to assume the present existence of any old landmark, but we hope the much decorated barber's shop in Fleet street, just within Temple Bar, has escaped the fate of its better known neighbor, the old Bar itself, and still remains with its bold inscription informing the passer-by that here once stood the palace of Henry VIII. A second 1 Elia would find matter for an essay in such an instance of the irony of history, but the mantle of Elia, alas! has not fallen upon any successor, and our purpose is not to moralize, but to turn once more, as in the happy days of yore, down the archway under the shop, and descending the flight of steps to enter the ancient and solemn portal of the Temple church. What an airy architecture have we here! How original and striking the effect of the old octagon chapel of which the first stone was laid by an eastern patriarch in the early crusad[ ing days-opening into the younger but still ancient oblong, forming now the principal building. Around us lie the crusaders themselves, with legs crossed, and their great guards by their sides, while over our heads the quaint gargoyles show the exuberant wit of monastic fancy. How some old fellow must have chuckled to himself when he knocked off this poor sinner's head, with the devil 2 r actually eating his ear! Truly Rabelais was not without predecessors who writ their mocking tales in stone. But we pass through the barrier and enter the main building. Our lady companions are ushered to their separate seats at the side, and we bachelors for the nonce must take our places in the middle pews, for the separation of the sexes still remains a custom of this church, handed down from the old monastic times. A chorister boy is busy arranging music books. A distant strain of rehearsal reaches us from the outer buildings, and we may therefore safely conclude that we have a quarter of an hour to spare before service commences. We notice the clean spring of the arches from the darkly glistening, many columned pillars, the rich, soft colors of the roof, the purple windows, the quiet, unobstrusive completeness of the whole building, and we admit that the Honorable Societies of the Inner and Middle Temple have indeed known how to build to God a church worthy of their old and noble guild. We recall, too, the many famous divines that have preached here, from the sad and serious Hooker, the stately periods of whose "Ecclesiastical Polity" still delight the student of Elizabethan literature, down to the present distinguished master, C. J. Vaughan, whose sermons are a model of cultured power. Even this afternoon we notice in the congregation many a famous man. Yonder, pathetic in his blindness, sits the beloved Sir John Karslake, and next to him is Sir Thomas Chambers, recorder of the city, whilst just behind them, also amongst the Benchers of the Middle Temple, we espy the ruddy countenance of the Prince of Wales. Over against them, on the Inner Temple side, sits old Lord Chelmsford, erst chancellor, close to his successor on the woolsack Cairns, and further on, Selborne, who in his turn has ousted Cairns, is cheek by jowl with the last of the chief barons, Sir Fitzroy Kelly. The Temple congregation is probably the most intellectual and distinguished in London, and it is no ordinary ordeal a preacher bere has before him. Now let us see what music we are to have, and whilst we are examining our anthem and church books we do not fail to note the winged pegasus stamped thereon, the emblem of the Inner Temple. We are just deep in the learned examination of cathedral music, which precedes the chorals, when the melodious thunder of the organ awakes our attention. Nor must we omit to notice this famous instrument, peculiar in having six black keys to each octave, to wit, a B minor distinct from the D sharp, built by Smith, the father of English organ building, in tempore Charles II. The construction thereof was a subject of competition between the aforesaid Smith and the then equally renowned Renatus Harris. Both rivals erected an organ in the church, and the cognoscenti of the day were at a loss to decide which to select, till ultimately the choice was left to Chief Justice Jeffreys of bloody Assize infamy, who pitched upon the one which, greatly augmented and improved, now delights us with its soft fullness of tune. For many a year has Hopkins, the present organist, to whom the English church is indebted for some of its most beautiful services and anthems, presided at its keys, and long may he remain an institution of the Temple. And now the choir and clergy enter, and evensong commences. We will not dilate upon the well-matched voices of the boys, the harmony of the chorus, and the sweetness of the solos, but the most unmusical hearer cannot but be struck by the exceptional effect of the hymn singing in which the voices of the whole congregation join. Each person has the tune before him, and the majority of the worshipers being sufficiently skilled in music to take their parts, the result is a grand volume of harmonious sound. The preacher this afternoon is the reader, Ainger, a quiet scholar, whose thoughtful cogent discourses have in large part remained in our memory (a memory not too prone to retain sermons), even after the lapse of years. The pulpit candles throw into strong relief his pale and wasted face, whilst the rest of the church is gradually shrouded in gloom, through which his well modulated voice sounds with strange effect, and it is with almost a start that we rise at the Ascription, and receive the peaceful benediction. Soon we are out in the dark and foggy streets, amongst the noise and rattle of the city, from which we have escaped for two quiet hours, and in our walk homeward Milton's noble lines came into our minds as a summing up of the afternoon: And let my due feet never fail To walk the studious cloister's pale, In service high and anthem clear, As may with sweetness thro' mine ear And bring all heaven before mine eyes." PRESUMPTIONS FROM ALTERATIONS OF INSTRUMENTS. RULE I. Alterations, erasures and interlineations appearing on the face of writings, whether under seal or not, are presumed to have been made before their execution or completion.(1) In Louisiana erasures and interlineations are presumed to be false or forged, and must be accounted for by the party setting up the instrument. (2) (1) Cumberland Bank v. Hall, 6 N. J. L. 215 (1822); Commissioners v. Hanion, 1 N. & McC. 554 (1819); Rankin v. Blackwell, 2 Johns. Cas. 198 (1801); Runnion v. Crane, 4 Blackf. 466 (1838): Commercial Bank v. Lum, 7 How. (Miss.) 414 (1843); Reed v. Kemp, 16 Ill. 445 (1855); Jourden v. Boyce, 33 Mich, 302 (1876); Stevens v. Martin, 18 Penn. St. 101 (1851); Little v. Herndon, 10 Wall. 31 (1869); Malavin v. United States, 1 id. 288 (1863); Smith v United States, 2 id. 232 (1864); Ramsey v. McCue, 21 Gratt. 349 (1871); Matthews v. Coalter, 9 Mo. 705 (1846); McCamick v. Fitzmorris, 39 id. 24 (1866); Acker v. Ledyard, 8 Barb. 514 (1850); Gooch v. Bryant, 13 Me. 365 (1836); Crabtree v. Clark, 20 Me. 337 (1841); Clark v. Rogers, 2 id. 147 (1822); Wickes v. Caulk, 5 H. & J. 41 (1820); Milliken v. Martin, 66 Ill. 13 (1872); Putnam v. Clark, 27 N. J. (Eq.) 412 (1878); Wickoff's Appeal, 15 Penn. St. 218 (1850). (2) McMicken v. Beauchamp, 2 La. 290 (1831). ILLUSTRATIONS. 1. A deed is produced by the grantee. There is an erasure in the description clause and another in the covenants. The erasures are presumed to have been made by the parties or the scrivener before the deed was executed and delivered.(3) 2. A will is produced for probate. There is an alteration in the name of one of the legatees. It is presumed that this was made before it was signed.(4) 3. B. sues C. on a promissory note made by C. There is an alteration and erasure in the amount payable. These are presumed to have been made before it was signed.(5) 4. On the face of an assessment an erasure appears. The presumption is that this was made before it was signed.(6) 5. There is an alteration in the minute book of a corporation. The presumption is that it was made before the book was signed. (7) 6. There is an alteration in the return made by an officer, it appearing to have been first written that a notice had been posted in two public places, the word "two" being altered to "the" in the same hand and ink. The presumption is that this alteration was made before the signing of the return.(8) In the early history of the common law the judges examined the question themselves, and if the deed or other instrument appeared to be interlined they refused to admit it. Subsequently this practice was altered, and the question whether the alteration was made before or after the delivery of the deed was left to the jury. And finally the presumption of law was raised that the alteration had been made before the delivery, on the ground that any other view would be a presumption in favor of fraud and forgery.(9) In the United States the rule, except in one State, seems to be well established that the presumption will be in favor of the validity of the instrument. In a Georgia case it was said: "The rule may now be thus stated: An alteration of a written instrument, if nothing appears to the contrary, should be presumed to have been made at the time of its execution. But generally the whole inquiry, whether there has been an alteration, and if so whether in fraud of the defending party or otherwise, to be determined by the appearance of the instrument itself or from that and other evidence in the case is for the jury. (10) "In this conflict of opinion," says Woodruff, J., after an exhaustive review of all the authorities," it appears to me that the sensible rule and the rule most in accordance with the decisions of our own State, is that the instrument, with all the circumstances of its history, its nature, the appearance of the alteration, the possible or probable motives to the alteration, or against it, and its effect upon the parties respectively, ought to be submitted to the jury; and that the court cannot presume from the mere fact that an alteration appears on the face of the instrument, whether under seal or otherwise, that it was made after the signing. (3) Cases cited in last note. (4) Id. (5) Id. (6) North River Meadow Co. v. Shrewsbury Church, 22 N.J. L. 427 (1850). (7) Stevens Hospital v. Dyas, 15 Ir. Eq. (N. S.) 405 (1863). (8) Boothby v. Stanley, 34 Me. 515 (1852). "Fraud," said the court, "cannot be presumed unless the ordinary rules of presumption of honesty and innocence be disregarded. The al teration of any legal instrument in the absence of proof or satisfactory explanation to the contrary, should be presumed to have been made simultaneously with the instrument or before its execution." (9) Tatum v. Catamore, 16 Q. B. 745 (1851). (10) Printup v. Mitchell, 17 Ga. 564 (1855). Some alterations may be greatly to the disadvantage instrument will be presumed to have been made after its execution." The instrument in this case was a deed and the alteration was in the description. of the holder or party setting up the instrument. Shall it be presumed that he made them unlawfully against his own interest? Others may be indifferent as to him, and favorable to some other. No presumption in such case can exist against him.(11) In Hill v. Barnes(17) the date in a note which had originally been written May 4 had been altered to April 4. No evidence when the alteration was actually made was given, but a verdict for the plaintiff was taken by consent, subject to the opinion of the higher court. The Supreme Court ordered a new trial. "In the absence of all evidence," said Parker, C. J., "either from the appearance of the note itself, or otherwise, to show when the alteration was made, it must be presumed to have been made subsequent to the execution and delivery of the note. This rule is necessary for the security of the maker, who must otherwise take evidence of the appearance of the note when it is de subsequently made without his privity." And the case was followed in Humphreys v. Ludlow(18), decided in 1843. In Beaman v. Russell(12) the question is discussed and the authorities reviewed at great length, and the correct rule said to be that the alteration of a written instrument, if nothing appear to the contrary, should be presumed to have been made at the time of its execution, but that the question in the evidence should be submitted to the jury. "Amidst the conflict of authorities in this country," said Hall, J., "and with the little aid that can be derived from the modern English cases I should be disposed to fall back upon the ancient common-law rule, that an alteration of a written in-livered, in order to protect himself against alterations strument, if nothing appear to the contrary, should be presumed to have been made at the time of its execution. I think this rule is demanded by the actual con. dition of the business transactions of this country, and especially of this State, where a great portion of the contracts made are drawn by the parties to them, and without great care in regard to interlineations and alterations. To establish an invariable rule, such as is claimed in behalf of the defendant, that the party producing the paper should in all cases be bound to explain any alteration by exhaustive evidence would, I apprehend, do injustice in a very great majority of cases in which it should be applied. Such a rule might be tolerated-might perhaps be beneficially adopted in a highly commercial country like that of Great Britain in regard to negotiable paper, which is generally written by men trained to clerical accuracy, and is upon stamped paper, the very cost of which would induce special care in the drawing of it; but I am persuaded its application here could not be otherwise than injurious. It is not often that an alteration can be accounted for by exhaustive evidence, and to hold that in all cases such evidence must be given without regard to any suspicious appearance of the alteration, would, I think, in many instances, be doing such manifest injustice as to shock the common sense of most men." In an early case in Pennsylvania Chief Justice McKean had ruled that an interlineation in a deed would be presumed to have been made after its execution. (13) But this decision is no longer law in that State, all the subsequent cases leaving it to the jury to decide on the evidence whether the alteration was made before or after the execution.(14) In Ohio it is laid down that where an alteration appearing on the face of an instrument is not peculiarly suspicious and beneficial to the party seeking to enforce it, the alteration will be presumed to have been made either before execution or by agreement of the parties afterward. (15) In Burnham v. Ayer(16) it is said: "Although a different rule prevails in other jurisdictions, it has been holden, and may be regarded as settled, in this State, that in the absence of evidence or circumstances from which an inference can legitimately be drawn as to the time when it was actually made, every alteration of an (11) Maybee v. Sniffen, 2 E. D. Smith, i (1851). (12) 20 Vt. 205 (1848). (13) Morris v. Vanderon, 1 Dall. 67 (1782). And see Paine v. Edsell, 19 Penn. St. 178 (1852); Prevost v. Cratz, Pet. C. C. 364 (1816); Taylor v. Crowninshield, 5 N. Y. Leg. Obs. 209 (1816). (14) Stall v. Berger, 10 S. &. R. 171 (1823); Babb v. Clemson, id. 424 (1823); Banuyhn v. Bank of Washington, 14 id. 422 (1826); Hefflinger v. Shutz, 16 id. 46 (1827); Hudson v. Reel, 5 Penn. St. 279 (1847); Vanhorne v. Dorrance, 2 Dall. 306 (1795). (15) Huntington v. Finch, 3 Ohio St. 445 (1854). (16) 35 N. H. 351 (1857). Two exceptions to this rule obtain in the English courts for reasons in one case never, and in the other hardly ever, applicable here. Alterations and interlineations appearing on the face of a will are presumed to have been made after their execution. This presumption is made by the court for the purpose of carrying out more effectually the provisions of the Wills Act, which makes void all obliterations, interlineations or other alterations in a will after execution unless affirmed on the margin and attested by witnesses. (19) Nevertheless in some of the more recent cases the English judges have shown an inclination not to make any presumption even here. In Williams v. Ashton(20) Wood, V. C., said: "I find numerous alterations in this will, as to which the only information afforded by the testatrix is that she said she had made alterations without specifying what the alterations were which she had so made. I do not think that it is quite a correct mode of stating the rule of law to say that alterations in a will are presumed to have been made at one time or at another. The correct view, as enunciated in the case of Doe v. Palmer(21), is that the onus is cast upon the party who seeks to derive an advantage from an alteration in a will to adduce some evidence from which a jury may infer that the alteration was made before the will was executed. I do not consider that the court is bound to say that it will presume such alterations to have been made either before or after execution. With regard to a will, I do not see any necessary presumption of the kind. As to a deed, a presumption is considered to exist that alterations have been made before execution, because if you presume them to have been subsequently introduced you presume a crime; but even that view has only recently been adopted. With respect to a will, this reasoning has no application. There is no crime in a testator choosing to make alterations in his own will, and all that can be said with respect to such alterations as these is that we do not know when they were made, Now a testator cannot reserve to himself a power of making future testamentary gifts by unaltered instruments. If a general statement by a testatrix that she had made some alterations in her will were to give val(17) 11 N. H. 395 (1840). (18) 13 N. H. 385. (19) Greville v. Tyler, 7 Moore P. C. 320 (1851); Cooper v. Brockett, 4 id. 414 (1844); Tatum v. Catamore, 16 Q. B. 745 (1851); Shallcross v. Palmer, 15 Jur. 836 (1852); Taylor v. Mosely, 6 C. &. P.273 (1833); Christmas v. Whonyates, 3 Swab. & Tr. 81 (1862); Simmons v. Rudall, 1 Sim. (N. S.) 136 (1850); Buck v. Buck, 6 Ecc. & Mar. 581 (1848); Re Duffy, Ir. Rep., 5 Eq. 506 (1871). (20) Johns. & M. 115 (1860). idity to any alterations found in the instrument after her death that would enable her at any time after such statement to make as many unattested alterations as she pleased. I apprehend the rule is that those who propound a doubtful instrument must make the doubt clear. I cannot tell what alterations the testatrix made before attestation,or what interests might be affected by alterations subsequently made. Not being able to say which alterations are valid, I cannot give effect to any of them."(22) Secondly, in the case of bills of exchange and promissory notes required by statute to be stamped, the English courts make it incumbent on a party producing such an instrument to explain any alteration before it can be introduced in evidence. (23) But, as pointed out by Hall, J. (24), there are reasons for the ruling under the English Stamp Act which do not apply in other cases. The defect of the common-law rule of proof is to protect one party against the fraud of another; that of the statute to protect the revenue from the fraud of all parties. "If an alteration be against the interest of the party claiming or be apparently in the handwriting of the party defending, and in either case were no appearances calculated to excite a suspicion of an intended fraud upon the latter party, it might be unjust to the party claiming to cast upon him the burden of showing by extraneous evidence when the alteration was made. But these considerations can have no weight under the Stamp Act. The question under that statute is not by whom or how the alteration was made, but merely the time when. One rule of evidence might perhaps be necessary to protect the interests of the government, while another might be quite sufficient for the preservation of those of the parties. And for the detection of fraud upon the revenue and to prevent its recurrence, a more stringent rule of proof may be required in England by considerations of public policy than justice to the parties would otherwise demand." And it is said by the learned judge, in the course of his opinion in this case, that the single question upon whom the burden of proof devolves to account for an alteration in a written instrument with reference to a supposed fraud upon the party, has never been presented to the English court in any of these cases. It has always been coupled with and been overridden by the more extended question in regard to a supposed fraud upon the revenue. RULE II. But where the alteration is in a different handwriting from the rest of the instrument(a); or in a different ink(b); or is in the interest of the party setting it up(c); or is suspicious on its face(d); or the execution of the instrument is denied under oath(e), the burden of proof rests on the party producing the instrument to explain it to the satisfaction of the tribunal. The authorities seem to be uniform on this point, viz., that when the alteration is suspicious on its face, and beneficial to the party setting it up, he must explain it to the satisfaction of the jury.(25) An alteration in a note after its delivery is presumed (22) And see Re Cadge, L. R., 1 P. & D. 543 (1868). (23) Johnson v. Duke of Marlborough, 2 Stark. 313 (1818); Bishop v. Chambre, 3 C. & P. 55 (1827); Knight v. Clements, 8 Ad. & El. 215 (1838); Clifford v. Parker, 2 Man. & Gr. 910 (1841); Caress v. Tattersall, 2 Man. & Gr. 891 (1841); Anderson v Weston, 6 Bing. N. C. 302 (1840); Leykauff v. Ashford, 12 Moore, 281 (1827); Sibley v. Fisher, 7 Ad. & El. 444 (1837); Henman & Dickinson, 5 Bing. 183 (1828). (24) Beaman v. Russell, ante. (25) Tillow v. Clinton Ins. Co., 7 Barb. 568 (1850); Herrick v. Malin, 22 Wend. 873 (1839); Croft v. White, 36 Miss. 455 (1858); Clark v. Eckstein, 22 Penn. St. 507 (1854); Newcomb v. Presbury, 8 Metc. 408 (1844); Gillett v. Sweat, 6 Ill. 475 (1844); Davis v. Carlisle, 6 Ala, 707 (1844). to have been made by the payee, and the burden is on him to show the assent of the maker.(26) ILLUSTRATIONS. (A.) 1. An action was on a promissory note. The words, "with interest at eight per cent" seemed to be added in a different hand. The burden was on the plaintiff to explain the alteration.(27) In Cox v. Palmer (28) McCrary, J., after saying: "What is the presumption in such a case? Upon this question there is an apparent conflict of authority. I think however it is apparent only, and not real. There are cases in which it has been held that an interlineation is presumably an unauthorized alteration of the instrument after execution, and that the burden is upon the party offering the instrument in evidence to show the contrary. There are also cases in which interlineations have been held to be prima facie bona fide, and that the burden is upon the party attacking the instrument to show that it was altered after execution," says: "But I think that one rule governs in all these cases, and it is this: If the interlineation is in itself suspicious, as if it appears to be contrary to the probable meaning of the instrument as it stood before the insertion of interlined words, or if it is in a handwriting different from the body of the instrument, or appears to have been written with a different inkin all such cases, if the court considers the interlineation suspicious on its face, the presumption will be that it was an unauthorized alteration after execution. On the other hand, if the interlineation appears in the same handwriting with the original instrument, and bears no evidence on its face of having been made subsequent to the execution of the instrument, and especially if it only makes clear what was the evident intention of the parties, the law will presume that it was made in good faith and before execution." (B.) 1. In an action on a written guaranty the words "and company" appeared therein in a different ink and handwriting from the rest of the instrument. The burden was on the plaintiff to show that this was done before the instrument was executed. (29) 'We are not prepared to say," said Metcalf, J., in case 1, "that a material alteration manifest on the face of the instrument is in all cases whatsoever such a suspicious circumstance as throws the burden of proof on the party claiming under the instrument. The effect of such a rule of law would be that if no evidence is given by a party claiming under such an instrument the issue must always be found against him, this being the meaning of the burden of proof.' But we are of opinion upon the authorities, English and American, and upon principle that the burden of proof in explanation of the instrument in suit in this case was on the plaintiff. It was admitted that the words 'and company' which were interlined in the guaranty were in a different handwriting from that of the rest of the instrument, and also in different ink. In such a case the burden of explanation ought to be on the plaintiff, for such an alteration certainly throws suspicion upon the instrument." In Smith v. McGowan (30) it was said: "There is no principle of the common law which requires a deed to be written throughout with the same colored ink. The fact that ink of different colors is used may or may not (26) White v. Hass, 32 Ala, 432 (1858). (27) Commercial Bank v. Lum, 6 How. (Miss.) 414 (1843); Bishop v. Chambre, 3 C. & C. 55 (1827). (28) 1 McCrary, 331 (1880). (29) Wilde v. Armsby, 6 Cush. 314 (1850); Davis v. Jenny, 1 Metc. 223 (1840). And see Crabtree v. Clark, 20 Me. 337 (1841). (30) 3 Barb. 406 (1848). |