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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,
And love the high embowed roof,
With antic pillars massy proof;
And storied windows richly dight,
Casting a dim religious light;
There let the pealing organ blow
To the full voiced quire below,
In service high and anthem clear,
As may with sweetness thro' mine ear
Dissolve me into ecstasies,
And bring all heaven before mine eyes."


RULE I. Alterations, erasures and interlineatioms 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 П11. 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).


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

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.

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(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 alteration 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 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 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 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."

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.

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 dein-livered, in order to protect himself against alterations subsequently made without his privity." And the case was followed in Humphreys v. Ludlow(18), decided in 1843.

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 heré. 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).

(21) 16 Q. B. 747.

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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)

Au 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. 406 (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)


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."


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 iustrument. 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).

afford evidence of a fraudulent alteration of an instrument. It may often be an important item of evidence on that question, and it may be consistent with the utmost honesty. There is nothing in the fact considered by itself which will require the court to exclude the instrument for that reason as matter of law. It may be a proper consideration for the jury in connection with other facts on the question of a fraudulent alteration."


1. A note was sued on dated in 1831. The date appeared to have been altered from 1835. The burden was on the plaintiff to explain it.(31)

2. An action was brought on a bond dated November 11, 1821. The defense was that the date had been altered from November 11, 1820. It was not incumbent on the plaintiff to explain the alteration. (32)

In case 1 the alteration was in the plaintiff's favor, for it entitled him to four years' more interest than as it originally stood. In case 2, on the other hand, the alteration was prejudicial to the plaintiff, for it deprived him of a year's interest. "Formerly," it was said in case 2, "the court judged of an erasure by inspection; latterly the jury do. In judging by inspection the court governed itself, as jurors do now, by probabilities in the absence of positive proof. If the. alteration on the erased part was in the handwriting of the obligee or a stranger, and beneficial to the obligee, the court adjudged it an erasure, that is an alteration, made after the execution, and avoided the deed. If prejudicial to the obligee, the court adjudged it no erasure, that is made before execution, and did not avoid the deed. If in the handwriting of the obligor either way, they adjudged it no erasure, that the alteration was made before execution, and did not avoid the deed. Juries are now governed by the same rules. In the case before us the date of the bond is altered, and it was made payable in 1821 instead of 1820, as it is said is evident from the erasure not being complete, as appears from au inspection of the deed, and the alteration is in the handwriting of the obligee, and prejudicial to the obligee, for he loses one year's interest. It is payable from the date or from a fixed period from the date. One of the rules before mentioned, to wit, that if the alteration is prejudicial to the obligee, though in his handwriting, it is no erasure, determines this case, as it is presumed that the alteration was made before execution. If the question was to be decided by the court, as formerly, we should pronounce it to be no erasure. In the absence of all evidence dehors the deed the jury were properly instructed to pronounce it so."


1. In an action on a bill of exchange the bill was produced by the plaintiff. The upper left-hand corner of the bill was torn off, carrying with it the word second" as preceding the words "each for." The printed word "second" in the body of the bill had black lines drawn through it, and the word "only" written over it. The printed words "first unpaid" had also black lines drawn through them. The burden was on the plaintiff to explain this. (33)



1. Suit was brought upon the following instrument: (31) Warren v. Layton, 3 Harr. (Del.) 404 (1840); Shoner v. Ellis, 6 Ind. 159 (1855).

(32) Pullen v. Shaw, 3 Dev. 238. And see Sayre v. Reynolds, 5 N. J. L. 737 (1820); Coulson v. Watson, 9 Pet. 98 (1835); Failee v. Failee, 21 N. J. L. 284 (1848).

(33) Fontaine v. Gunther, 31 Ala. 264 (1857). And see Van Busen v. Cockburn, 14 Barb. 118 (1852); Ridgley v. Johnson, 11 id. 540 (1851); Waring v. Smith, 2 Barb. Ch. 11 (1847).

BROWN CITY, April 1, 1847.

Against the tenth day of July next, I promise to, deliver at the residence of James Short fifty dollars' worth of good cattle, to be two years old past, not more than two shall be heifers, any number above the fifty dollars' worth will (thirty dollars' worth of salable cattle shall be delivered above the fifty $5 worth) be received on the house debt, all to be salable cattle.

The defendant, as required by statute, denied the execution of the instrument under oath. The plaintiff was bound to explain the alteration.(34)

In case 1 it was said: "Upon this point there is a conflict of the authorities. Some courts have held that if nothing appears to the contrary, the alteration will be presumed to have been made contemporaneously with the execution of the instrument. The reason given by the courts that have so decided is that the law will never presume wrong, and to hold an alteration to have been made after the execution of the instrument would be to presume the holder guilty of forgery. This reason has no foundation in this State, so far at least as relates to instruments of writing upon which suits are brought or which are set up by way of defense or setoff, the execution of which by the 14th section of the 83d chapter of the Revised Statutes a party is not permitted to deny, except on oath. When such a denial is made on oath, as in the present case, the law would presume quite as great wrong in assuming that the party making oath that the instrument was not his, had been guilty of perjury, as in assuming that the holder of the instrument had altered it after its execu tion." The court in this case criticised the soundness of the rule independent of the statute also.

In one of the latest cases the rule is laid down thus, viz. that where there is no dispute on the interlineation or alteration, the presumption is that it was made before execution, but when a contest arises and the in strument is offered in evidence, and the alteration is beneficial to the party presenting it, the presumption of law is not the other way (viz., that it was made after) but the burden is on him to explain it.

"When we look at a written instrument containing an interlineation or erasure,' ," said Woodward, J., "without reference to contested rights, the natural and fair presumption doubtless is that the alteration was made before signature, because if altered after execution it would be forgery, which is never to be presumed. Instruments of writing executed with the solemuities appointed by law are like the men who made them, to be presumed innocent until some circumstance is shown to beget a counter presumption. But when a contest occurs, and the instrument is offered in evidence, the question at once arises whether the alteration is beneficial to the party offering it; if it be not, as in the instance of a bond or note altered to a less sum, the prima facie presumption is unchanged; if it be, as was the case here, we do not presume a forgery, but we hold the party offering it in evidence and seeking advantage from it bound to explain the alteration to the satisfaction of the jury. The initiative and burden of proof are thrown on him. If the interlineation or erasure have been noted in the attestation clause as having been made before signature, this is sufficient, or if the similarity of ink and handwriting, or the conduct of the parties or other facts proved shall persuade a jury that it was so made, the instrument is relieved from suspicion, and the

(34) Walters v. Short, 10 Ill. 252 (1848). But in a Texas case where the alteration was not an apparent one (viz., following a blank), the burden of proving the alteration-the execution being denied under oath-was held to be on the defendant. Wells v. Moore, 15 Tex, 521 (1855); Mucklery v. Bethany, 27 id. 551 (1864).

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party offering it is entitled to the benefits of it. So long as any ground of suspicion is apparent on the face of the instrument, the law presumes nothing, but leaves the question as to the time when it was done to be ultimately found by the jury upon proofs to be adduced by him who offers the evidence."(35)

In Simpson v. Davis (36) it was ruled that where a declaration in a promissory note alleges that the defendant made the note, and the answer denies this, and alleges an alteration, proof of the defendant's signature is prima facie evidence that the whole body of the note written over it is the act of the defendant; but the burden of proof is on the plaintiff to show that the note declared on was the note of the defendant.(37)

In Bailey v. Taylor(38) the court refused to rule that there was a presumption that an alteration of the amount of a note had been made after its execution, saying: "The result to which we have arrived is that where there is an erasure or alteration in an instrument under which a party derives his title, and the adverse party claims that such erasure or alteration was improperly made, the jury are from all the circumstances to determine whether the instrument is thereby rendered invalid. Circumstances may be such as may require this explanation on the part of the plaintiff, or on the other hand, may arise where it would be absurd to require it."





A statute imposing a penalty upon a telegraph company for failure to transmit a message as therein required, even as applied to a message sent to another State, is not a violation of the Constitution of the United States giving to Congress the power to regulate commerce between the States, but is a valid exercise of the police power which belongs exclusively to the States.

The sender of the message has the right to recover the penalty given by the statute. It is a penalty for a breach of duty arising in this State, and not damages for the breach of contract, and the right to recover is not affected by the fact that the particular act constituting the specific breach of duty occurred in another State.


ROM the Shelby Circuit Court. The opinion states the points.

J. E. McDonald, J. M. Butler and A. L. Mason, for appellant.

E. K. Adams and L. J. Hackney, for appellee. ELLIOTT, J. Our statute provides that a telegraph company with a line of wires wholly or partly within the State shall, during the usual office hours, receive dispatches, and on payment or tender of the usual charge, according to the regulation of the company, transmit messages with impartiality and good faith in the order in which they are received, and for a failure to perform this duty shall be liable to a penalty of $100, to be recovered by the person whose dispatch is postponed or neglected.

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of course be even plausibly maintained in cases where the line is wholly within the State; in such cases the business is purely domestic, and not interstate, but here the line of the company extends beyond the State, and the message delivered to the company was undertaken to be transmitted to a point in Iowa.

The telegraph is an instrument of commerce. Intercourse by telegraph is commercial intercourse, and where it extends beyond the State is interstate, and subject to the control of Congress. Pensacola Tel. Co. v. Western U. Tel. Co., 96 U. S. 1; Telegraph Co. v. Texas, 105 id. 460.

There is much conflict of opinion in the decisions of the courts of last resort upon this subject, and it will be found to be no easy task to extract from the decisions well defined rules. The study of the many able opinions that have been delivered by our great judges, beginning with that of the great chief justice, John Marshall, is an interesting one, but we do not feel called upon to review these cases. Three theories seem to have been maintained-one that the States cannot legislate upon the subject at all, whether Congress has or has not exercised the power vested in it; another, that when Congress has exercised its power the States can adopt no valid legislation; and still another, that the States may legislate upon the subject even though Congress has exercised the power vested in it by the Constitution. We think however that the ultimate conclusion deducible from the later decisions is, that the States cannot embarrass commercial communication, abridge the freedom of commerce, discriminate in favor of the products of one State, lay burdens upon the instruments of commerce, or exact licenses from persons, natural or artificial, engaged in interstate commerce, and that this is so whether Congress has or has not legislated upon the subject. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 id. 419; Willson v. Blackbird, etc., Co., 2 Pet. 245; City of New York v. Miln, 11 id.102; Thurlow v. Massachusetts,5 How. (U.S.) 504; Smith v. Turner,7 id.283; Cooley v. Board, etc.,12 id. 299; State v. Wheeling, etc., Co., 13 id. 518; Smith v. State, 18 id. 1; Gilman v. Philadelphia, 3 Wall. 715; Railroad Co. V. Pennsylvania, 15 id. 232; Welton v. State, 91 U. S. 275; Cook v. Pennsylvania, 97 id. 575; Webber v. Virginia, 103 id. 344; Telegraph Co. v. Texas, supra.

Accepting this conclusion as the law which rules our decision, we still have no hesitation in affirming that our statute is not borne down by it. No discrimination is made in favor of any person, or in favor of any article of commerce; the freedom of commercial intercourse is not abridged, and no new duty or burden is imposed upon the company. The statute secures to all alike the privilege of demanding that the duties of the corporation be performed with diligence, impartiality and good faith. It enforces an existing duty and provides a penalty, but it confines the duty to no class and denies the penalty to none. It is impossible to conceive the slightest restriction upon commercial intercourse, or the faintest discrimination in favor of any person or thing.

Granting then the lack of power in the State to abridge the freedom of commerce or to discriminate in favor of men or things, we may still maintain that telegraph companies having offices and doing business in our State may be compelled to discharge their duties diligently and impartially, because in requiring this a police power, inherent in all sovereignties, is rightfully exercised. We do not maintain that under the guise of a police regulation the State can abridge the freedom of commercial intercourse, or discriminate in favor of the products of one State, or grant commercial rights to the citizens of some particular State and deny them to others, but we do maintain that the sovereign State has power to enact laws re

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