Gambar halaman


us with its soft fullness of tune. For many a year

ILLUSTRATIONS. has Hopkins, the present organist, to whom the 1. A deed is produced by the grantee. There is au English church is indebted for some of its most

erasure in the description clause and another in the

covenants. beautiful services and anthems, presided at its

The erasures are presumed to have been

made by the parties or the scrivener before the deed keys, and long may he remain an institution of the

was executed and delivered.(3) Temple.

2. A will is produced for probate. There is an alterAnd now the choir and clergy enter, and even- ation in the name of one of the legatees. It is prosong commences. We will not dilate upon the

sumed that this was made before it was signed.(4) well-matched voices of the boys, the harmony of

3. B. sues C. on a promissory note made by C. There

is an alteration and erasure in the amount payable. the chorus, and the sweetness of the solos, but the

These are presumed to have been made before it was most unmusical hearer cannot but be struck by the signed.(5) exceptional effect of the hymn singing in which 4. On the face of an assessment an erasure appears. the voices of the whole congregation join. Each

The presumption is that this was made before it was

signed.(6) person has the tune before him, and the majority of

5. There is an alteration in the minute book of a corthe worshipers being sufficiently skilled in music poration. The presumption is that it was made beto take their parts, the result is a grand volume of fore the book was signed. (7) harmonious sound. The preacher this afternoon is 6. There is an alteration in the return made by an the reader, Ainger, a quiet scholar, whose thought-officer, it appearing to have been first written that a ful cogent discourses have in large part remained

notice had been posted in two public places, the word

"two” being altered to "the" in the same haud and in our memory (a memory not too prone to retain

ink. The presumption is that this alteration was made sermons), even after the lapse of years. The pulpit before the signing of the return.(8) candles throw into strong relief his pale and wasted In the early history of the common law the judges face, whilst the rest of the church is gradually examined the question themselves, and if the deed or shrouded in gloom, through which his well modu

other instrument appeared to be interlined they re

fused to admit it. Subsequently this practice was allated voice sounds with strange effect, and it is

tered, and the question whether the alteration was with almost a start that we rise at the Ascription, made before or after the delivery of the deed was left and receive the peaceful benediction. Soon we are to the jury. And finally the presumption of law was out in the dark and foggy streets, amongst the

raised that the alteration had been made before the denoise and rattle of the city, from which we have livery, on the ground that any other view would be a escaped for two quiet hours, and in our walk home

presumption in favor of fraud and forgery.(9) In the

United States the rule, except in one State, seems to ward Milton's noble lines came into our minds as a

be well established that the presumption will be in fasumming up of the afternoon:

vor of the validity of the instrument. In a Georgia And let my due feet never fail

case it was said: “The rule may now be thus stated : To walk the studious cloister's palo,

An alteration of a written instrument, if nothing apAnd love the high embowed roof,

pears to the contrary, should be presumed to have With antic pillars massy proof;

been made at the time of its execution. But generally And storied windows richly dight,

the whole inquiry, whether there has been an alteraCasting a dim religious light;

tion, and if so whether in fraud of the defending party There let the pealing organ blow

or otherwise, to be determined by the appearance of To the full voiced quire below,

the instrument itself or from that and other evidence In service high and anthem clear, As may with sweetness thro' mine ear

in the case is for the jury (10) Dissolve me into ecstasies,

“In this conflict of opinion," says Woodruff, J., after And bring all heaven before mine eyes."

an exhaustive review of all the authorities,” it appears to me that the sensible rule and the rule most in ac

cordance with the decisions of our own State, is that PRESU MPTIONS FROM ALTERATIONS OF IN- the instrument, with all the circumstances of its hisSTRUMENTS.

tory, its nature, the appearance of the alteration, the

possible or probable motives to the alteration, or RULE I. Alterations, erasures and interlineations ap- against it, and its effect upon the parties respectively, pearing on the face of writings, whether under seal or not, ought to be submitted to the jury; and that the court are presumed to have been made before their execution or cannot presume from the mere fact that an alteration completion.(1)

appears on the face of the instrument, whether under In Louisiana erasures and interlineations are pre

seal or otherwise, that it was made after the signing. sumed to be false or forged, and must be accounted for (3) Cases cited in last note. by the party setting up the instrument.(2)

(5) Id. (1) Cumberland Bank v. Hall, 6 N. J. L. 215 (1822); Commissioners v. Hanion, 1 N. & McC. 554 (1819); Rankin v. Blackwell,

(6) North River Meadow Co. v. Shrewsbury Church, 22 N.J. 2 Johns. Cas. 198 (1801); Runnion v. Crane, 4 Blackf. 466 (1838) L. 427 (1850). Commercial Bank v. Lum, 7 How. (Miss.) 414 (1843); Reed v.

(7) Stevens Hospital v. Dyas, 15 Ir. Eq. (N. S.) 405 (1863). Kemp, 16 III. 415 (1855); Jourden v. Boyce, 33 Mich. 302 (1876); Stevens v. Martin, 18 Penn. St. 101 (1851); Little v. Herndon,

(8) Boothby v. Stanley, 34 Me.515 (1852). “Fraud," said the 10 Wall 31 (1869); Malavin v. United States, 1 id. 288 (1863); court, “cannot be presumed unless the ordinary rules of preSmith v United States, 2 id. 232 (1864); Ramsey v. McCue, 21 Gratt. 349 (1871); Matthews v. Coalter, 9 Mo. 505 (1846); Mc

sumption of honesty and innocence be disregarded. The al. Camick v. Fitzmorris, 39 id. 24 (1866), Acker v. Ledyard, 8

teration of any legal instrument in the absence of proof or Barb. 511 (1850); Gooch v. Bryant, 13 Me. 365 (1836); Crabtree satisfactory explanation to the contrary, should be presumed

Clark, 20 Me. 337 (1841); Clark v. Rogers, 2 id. 147 (1822); Wickes v. ('aulk, 5 H. & J. 41 (1820); Milliken v. Martin, 66 ni.

to have been made simultaneously with the instrument or be13 (1872); Putnam v. Clark, 27 N. J. (Eq.) 412 (1878); Wickoff's

fore its execution." Appeal, 15 Penn. St. 218 (1850).

(9) Tatum v. Catamore, 16 Q. B. 745 (1851). (2) McMicken v. Beauchamp, 2 La. 290 (1831).

(10) Printup v. Mitchell, 17 Ga. 564 (1855).

(4) Id.

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Some alterations may be greatly to the disadvantage instrument will be presumed to have been made after of the holder or party setting up the instrument. its execution." The instrument in this case was a deed Shall it be presumed that he made them unlawfully and the alteration was in the description. against bis own interest ? Others may be indifferent In Hill v. Barnes(17) the date in a wote which had as to him, and favorable to some other. No presump- originally been written May 4 had been altered to tion in such case can exist against him.(11)

April 4. No evidence when the alteration was actually In Beaman v. Russell(12) the question is discussed made was given, but a verdict for the plaintiff was and tbe authorities reviewed at great length, and the taken by consent, subject to the opinion of the bigber correct rule said to be that the alteration of a written court. The Supreme Court ordered a new trial. “In instrument, if nothing appear to the contrary, should the absence of all evidence,” said Parker, C. J., “either be presumed to have been made at the time of its exe- from the appearance of the note itself, or otherwise, to cution, but that the questiou in the evidence should show when the alteration was made, it must be prebe submitted to the jury. “Amidst the conflict of au- suined to have been made subsequent to the execution thorities in this country," said Hall, J., “and with the and delivery of the note. This rule is necessary for little aid that can be derived from the modern English | the security of the maker, who must otherwise take cases I should be disposed to fall back upon the ancient evidence of the appearance of the note when it is decominon-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 subsequently made without his privity." And he presumed to have been made at the time of its execu- case was followed in Humphreys v. Ludlow(18), decided tion. I think this rule is demanded by the actual con: in 1843. dition of the business transactions of this country, Two exceptions to this rule obtain in the English and especially of this State, where a great portion of courts for reasons in one case never, and in the other the contracts made are drawn by the parties to them, hardly ever, applicable here. Alterations and interand without great care in regard to interlineations and lineations appearing on the face of a will are presumed alterations. To establish an invariable rule, such as to have been made after their execution. This preis claimed in behalf of the defendant, that the party sumption is made by the court for the purpose of carproducing the paper should in all cases be bound to ex- rying out more effectually the provisions of the Wills plain any alteration by exhaustive evidence would, I Act, which makes void all obliterations, interlineations apprehend, do injustice in a very great majority of or other alterations in a will after execution unless cases in which it should be applied. Such a rule might affirmed on the margin and attested by witnesses. (19) be tolerated-might perhaps be beneficially adopted in Nevertheless in some of the more recent cases the a highly commercial country like that of Great Britain English judges have shown an inclination not to make in regard to negotiable paper, which is generally writ- any presumption even here. In Williams v. Ashton (20) ten by men trained to clerical accuracy, and is upon Wood, V. C., said: “I find numerous alterations in stamped paper, the very cost of which would induce this will, as to which the only information afforded by special care in the drawing of it; but I am persuaded the testatrix is that she said she had made alterations its application here could not be otherwise than inju- without specifying what the alterations were which rious. It is not often that an alteration can be ac- she had so made. I do not think that it is quite a corcounted for by exhaustive evidence, and to hold that rect mode of stating the rule of law to say tbat alterain all cases such evidence must be given without re- tions in a will are presumed to have been made at one gard to any suspicious appearance of the alteration, time or at another. The correct view, as enunciated would, I think, in many instances, be doing such manis in the case of Doe v. Palmeri21), is that the onus is cast fest injustice as to shock the common sense of most upon the party who seeks to derive an advantage from men."

an alteration in a will to adduce some evidence from In an early case in Pennsylvania Chief Justice Mo- which a jury may infer that the alteration was made Kean had ruled that an interlineation in a deed would before the will was executed. I do not consider that be presumed to have been made after its execution.(13) the court is bound to say that it will presume such alBut this decision is no longer law in that State, all the teratious to have been made either before or after exesubsequent cases leaving it to the jury to decide on the cution. With regard to a will, I do not see any necesevidence whether the alteratiou was made before or sary presumption of the kind. As to a deed, a preafter the execution.(14)

sumption is considered to exist that alterations bave Iu Ohio it is laid down that where an alteration ap- been made before execution, because if you prepearing on the face of an instrument is not peculiarly sume them to have been subsequently introduced you suspicious and beneficial to the party seeking to enforce presume a crime; but even that view has only recently it, the alteration will be presumed to bave been made been adopted. With respect to a will, this reasoning either before execution or by agreement of the parties has no application. There is no crime in & testator afterward.(15)

choosing to make alterations in his own will, and all In Burnham v. Ayer(16) it is said: “Although a dif- that can be said with respect to such alterations as ferent rule prevails in other jurisdictions, it has been these is that we do not know when they were made, holden, and may be regarded as settled, in this State, Now a testator cannot reserve to himself a power of that in the absence of evidence or circumstances from making future testamentary gifts by unaltered instruwhich an inference can legitimately be drawn as to the ments. If a general statement by a testatrix that she time when it was actually made, every alteration of an had made some alterations in her will were to give val. (11) Maybee v. Sniffen, 2 E. D. Smith, i (1851).

(17) 11 N. H. 395 (1840). (12) 20 Vt. 205 (1848).

(18) 13 N. H. 385. (13) Morris v. Vanderon, 1 Dall. 67 (1782). And see Paine v. (19) Greville v. Tyler, 7 Moore P. C. 320 (1851); Cooper v. Edsell, 19 Penn. St. 178 (1852); Prevost v. Cratz, Pet. C. C. 364 Brockett, 4 id. 414 (1844); Tatum v. Catamore, 16 Q. B. 745 (1816); Taylor v. Crowninshield, 5 N. Y. Leg. Obs. 209 (1816). (1851); Shallcross v. Palmer, 15 Jur. 836 (1852); Taylor v.

(14) Stall v. Berger, 10 S. &. R. 171 (1823); Babb v. Clemson, Mosely, 6 C. &. P.273 (1833); Christmas v. Whonyates, 3 Swab. id. 424 (1823); Banuyhn v.Bank of Washington, 14 id.422 (1826); & Tr. 81 (1862); Simmons v. Rudall, 1 Sim. (N. S.) 136 (1850); Hefflinger v. Shutz, 16 id. 46 (1827); Hudson v. Reel, 5 Penn. Buck v. Buck, 6 Ecc. & Mar. 581 (1848); Re Duffy, Ir. Rep., 5 St. 279 (1847); Vanhorne v. Dorrance, 2 Dall. 306 (1795).

Eq. 506 (1871). (15) Huntington v. Finch, 3 Ohio St. 445 (1854).

(20) Johns. & M. 115 (1860). (16) 35 N. II, 351 (1857).

(21) 16 Q. B. 747.

idity to any alterations found in the instrument after to have been made by the payee, and the burdeu is on her death that would enable her at any time after such him to show the assent of the maker.(26) statement to make as many unattested alteratious as she pleased. I apprehend the rule is that those who

ILLUSTRATIONS. propound a doubtful instrument must make the doubt

(A.) clear. I cannot tell what alterations the testatrix 1. An action was on a promissory note. The words, made before attestation or what interests might be af- “with interest at eight per cent" seemed to be added fected by alterations subsequently made. Not being in a different hand. The burden was on the plaintiff able to say which alterations are valid, I cannot give to explain the alteration. (27) effect to any of them."(22).

In Cox v. Palmer(28) McCrary, J., after saying: Secondly, in the case of bills of exchange and prom- “What is the presumption in such a case? Upon this issory notes required by statute to be stamped, the question there is an apparent conflict of authority. I English courts make it incumbent on a party produc- think however it is apparent only, and not real. There ing such an instrument to explain any alteration before are cases in which it has been held that au interlineait can be introduced in evidence. (23) But, as poiuted out tion is presumably an unauthorized alteration of the by Hall, J.(24), there are reasons for the ruling under instrument after execution, and tbat the burden is the English Stamp Act which do not apply in other upon the party offering the instrument in evidence to cases. The defect of the common-law rule of proof is show the contrary. There are also cases in which into protect one party against the fraud of another; that terlineations have been held to be prima facie bona fide, of the statute to protect the revenue from the fraud of and that the burden is upon the party attacking the all parties. “If an alteration be against the interest instrument to show that it was altered after execuof the party claiming or be apparently in the hand

tion," says:

“But I think that one rule governs in all writing of the party defending, and in either case were these cases, and it is this: If the interlineation is in 10 appearances calculated to excite a suspicion of an itself suspicious, as if it appears to be contrary to the intended fraud upon the latter party, it might be un- probable meaning of the instrument as it stood before just to the party claiming to cast upon him the burden the insertion of interlined words, or if it is in a bandof showing by extraneous evidence when the altera- writing different from the body of the instrument, tion was made. But these considerations can have no or appears to have been written with a different inkweight under the Stamp Act. The question under in all such cases, if the court considers the interlineathat statute is not by whom or how the alteration was tion suspicious on its face, the presumption will be made, but merely the time when. One rule of evi- that it was an unauthorized alteration after execution. dence might perhaps be necessary to protect the inter- On the other hand, if the interlineation appears in the ests of the government, while another might be quite same handwriting with the original instrument, and sufficient for the preservation of those of the parties. bears no evidence on its face of having been made subAnd for the detection of fraud upon the revenue and sequent to the execution of the instrument, and especto present its recurrence, a more stringent rule of ially if it only makes clear what was the evident inproof may be required in Englavd by considerations of tention of the parties, the law will presume that it was public policy than justice to the parties would other- made in good faith and before execution.” wise demand.” And it is said by the learned judge, in

(B.) the course of his opinion in this case, that the single question upon whom the burden of proof devolves to

1. In an action on a written guaranty the words account for an alteration in a written instrument with

"and company" appeared therein in a different iuk

and handwriting from the rest of the instrument. The reference to a supposed fraud upon the party, has never been presented to the English court in any of these

burden was on the plaintiff to show that this was done

before the instrument was executed.(29) cases. It has always been coupled with and been over

“We are not prepared to say,” said Metcalf, J., in ridden by the more extended question in regard to a

case 1, "that a material alteration manifest on the supposed fraud upon the revenue.

face of the instrument is in all cases whatsoerer such a RULE II. But where the alteration is in a different suspicious circumstance as throws the burden of proof handwriting from the rest of the instrument(a); or in a

on the party claiming under the iustrument. The efdifferent ink(b); or is in the interest of the party setting it

fect of such a rule of law would be that if no evidence up(c); or is suspicious on its face(d); or the execution is given by a party claiming under such an instrument of the instrument is denied under oath(e), the burden of the issue must always be found against him, this being proof rests on the party producing the instrument to er- the meaning of the burden of proof.' But we are of plain it to the satisfaction of the tribunal.

opinion upon the authorities, Euglish and American,

and upon principle that the burdeu of proof in explanThe authorities seem to be uniform on this point,

ation of the instrument in suit in this case was on the riz., that when the alteration is suspicious on its face,

plaintiff. It was admitted that the words and comand beneficial to the party setting it up, be must ex

pany'which were interlined in the guaranty were in a plain it to the satisfaction of the jury.(25)

different handwriting from that of the rest of the inAn alteration in a note after its delivery is presumed

strument, and also in different ink. In such a case (22) And see Re Cadge, L. R., 1 P. & D. 543 (1868).

the burden of explanation ought to be on the plaintiff, (23) Johnson v. Duke of Marlborough, 2 Stark. 313 (1818); for such an alteration certainly throws suspicion upon Bishop v. Chambre, 3 C. & P. 55 (1827); Knight v. Clements, 8

the instrument.” Ad. & EL. 215 (1838); Clifford v. Parker, 2 Man. & Gr. 910 (1841);

Iu Smith v. McGowan(30) it was said: “There is no Caress v. Tattersall, 2 Man. & Gr. 891 (1841); Anderson y principle of the common law which requires a deed to Weston, 6 Bing. N. C. 302 (1840); Leykauff v. Ashford, 12 be written throughout with the same colored ink. The Moore, 281 (1827); Sibley v. Fisher, 7 Ad. & El. 444 (1837); Hen- fact that ink of different colors is used may or may not man & Dickinson, 5 Bing. 183 (1828).

(26) White v. Hass, 32 Ala. 432 (1858). (24) Beaman v. Russell, ante.

(27) Commercial Bank v. Lum, 6 How. (Miss.) 414 (1843); (25) Tillow v. Clinton Ins. Co., 7 Barb. 568 (1850); Herrick v.

Bishop v. Chambre, 3 C. & C. 55 (1827). Malin, 22 Wend. 373 (1839); Croft v. White, 36 Miss. 455 (1858);

(28) 1 McCrary, 331 (1880). Clark v. Eckstein, 22 Pepn. St. 507 (1854); Newcomb v. Pres

(29) Wilde v. Armsby, 6 Cush. 314 (1850); Davis V. Jenny, 1 bury, 8 Metc. 406 (1844); Gillett v. Sweat, 6 III, 475 (1844); Davis

Metc. 223 (1840). And see Crabtree v. Clark, 20 Me. 337 (1841). v. Carlisle, 6 Ala. 707 (1844).

(30) 3 Barb. 406 (1848).


afford evidence of a fraudulent alteration of an instru

BROWN CITY, April 1, 1847. ment. It may often be an important item of evidence Against the tenth day of July next, I promise to deon that question, and it may be consistent with the liver at the residence of James Short filty dollars' utmost honesty. There is nothing in the fact consid- worth of good cattle, to be two years old past, not ered by itself which will require the court to exclude more than two shall be heifers, auy number above the the instrument for that reason as matter of law. It fifty dollars' worth will (thirty dollars' worth of salmay be a proper consideration for the jury in connection able cattle shall be delivered above the fifty $5 with other facts on the question of a fraudulent altera- worth) be received on the house debt, all to be salation."

ble cattle. (C.)

The defendant, as required by statute, denied the 1. A note was sued on dated in 1831. The date ap- execution of the instrument under oath. The plaintiff peared to have been altered from 1835. The burden was bound to explain the alteration.(34) was on the plaintiff to explain it.(31)

In case 1 it was said: “Upon this point there is a 2. An action was brought on a bond dated November conflict of the authorities. Some courts have held that 11, 1821. The defense was that the date had been al- if nothing appears to the contrary,the alteration will be tered from November 11, 1820. It was not incumbent presumed to have been made contemporaneously with on the plaintiff to explain the alteration.(32)

the execution of the instrument. The reason given by In case 1 the alteration was in the plaintiff's favor, the courts that have so decided is that the law will for it entitled him to four years' more interest than as never presume wrong, and to hold an alteration to have it originally stood. In case 2, on the other hand, the been made after the execution of the instrument would alteration was prejudicial to the plaintiff, for it de

be to presume the holder guilty of forgery. This reaprived him of a year's interest. “Formerly," it was son has no foundation in this State, so far at least as said in case 2, “the court judged of an erasure by in- relates to instruments of writing upon which suits are spection; latterly the jury do. In judging by inspec- brought or which are set up by way of defense or settion the court governed itself, as jurors do now, by off, the execution of which by the 14th sectiou of the probabilities in the absence of positive proof. If the 83d chapter of the Revised Statutes a party is not peralteration on the erased part was in the handwriting mitted to deny, except on oath. When such a denial of the obligee or a stranger, and beneficial to the obli

is made on oath, as in the present case, the law would gee, the court adjudged it an erasure, that is an altera

presume quite as great wrong in assuming that the tion, made after the execution, and avoided the deed. party making oath that the instrument was not his, If prejudicial to the obligee, the court adjudged it no had been guilty of perjury, as in assuming that the erasure, that is made before execution, and did not

holder of the instrument had altered it after its execu avoid the deed. If in the handwriting of the obligor tion.” The court in this case criticised the sounduess either way, they adjudged it no erasure, that the al

of the rule independent of the statute also. teration was made before execution, and did not avoid In one of the latest cases the rule is laid down tbus, the deed. Juries are now governed by the same rules.

viz. : that where there is no dispute on the interlineaIn the case before us the date of the bond is altered, tion or alteration, the presumption is that it was made and it was made payable in 1821 instead of 1820, as it before execution, but when a contest arises and the in is said is evident from the erasure not being complete, strument is offered in evidence, and the alteration is as appears from an inspection of the deed, and the al

beneficial to the party presenting it, the presumption teration is in the handwriting of the obligee, and pre- of law is not the other way (viz., that it was made after) judicial to the obligee, for he loses one year's interest. but the burden is on him to explain it. It is payable from the date or from a fixed period from “When we look at a written instrument containing the date. One of the rules before mentioned, to wit, an interlineation or erasure," said Woodward, J., that if the alteration is prejudicial to the obligee, “without reference to contested rights, the patural and though in his handwriting, it is no erasure, determines fair presumption doubtless is that the alteration was this case, as it is presumed that the alteration was made before signature, because if altered after execumade before execution. If the question was to be de- tion it would be forgery, which is never to be precided by the court, as formerly, we should pronounce sumed. Instruments of writing executed with the soit to be no erasure. In the absence of all evidence lempities appointed by law are like the men who made dehors the deed the jury were properly instructed to them, to be presumed innocent until some circumpronounce it so."

stance is shown to beget a counter presumption. (D.)

But when a contest occurs, and the instrument is of. 1. In an action on a bill of exchange the bill was pro- fered in evidence, the question at once arises whether duced by the plaintiff. The upper left-hand corner of the alteration is beneficial to the party offering it; if the bill was torn off, carrying with it the word “sec- it be not, as in the instance of a bond or note altered ond” as preceding the words “each for.” The printed to a less sum, the prima facie presumption is ugword "second" in the body of the bill had black lines changed; if it be, as was the case here, we do not predrawn through it, and the word “only" written over sume a forgery, but we hold the party offering it in it. The printed words “first unpaid " had also black evidence and seeking advantage from it bound to exlines drawn through them. The burden was on the plain the alteration to the satisfaction of the jury. The plaintiff to explain this.(33)

initiative and burden of proof are thrown on him. If

the interlineation or erasure have been noted in the (E.)

attestation clause as having been made before signa.

ture, this is sufficient, or if the similarity of ink and 1. Suit was brought upon the following instrument:

handwriting, or the conduct of the parties or other (31) Warren v. Layton, 3 Harr. (Del.) 404 (1840); Shoner v.

facts proved shall persuade a jury that it was so made, Ellis, 6 Ind. 159 (1855).

the instrument is relieved from suspicion, and tbe (32) Pullen v.Shaw, 3 Dev. 238. And see Sayre v. Reynolds, (34) Walters v. Short, 10 III. 252 (1848). But in a Texas case 5 N. J. L. 737 (1820); Coulson v. Watson, 9 Pet. 98 (1835); Fai- where the alteration was not an apparent one (viz., following lee v. Failee, 21 N. J. L. 284 (1848).

a blank), the burden of proving the alteration - the execution (33) Fontaine v. Gunther, 31 Ala. 264 (1857). And see Van being denied under oath-was held to be on the defendant. Busen v. Cockburn, 14 Barb. 118 (1852); Ridgley v. Johnson, 11 Wells v. Moore, 15 Tex. 521 (1855); Mucklery v. Bethany, 27 id. id. 540 (1851); Waring v, Sinith, 2 Barb. Ch. 11 (1847).

551 (1864).


party offering it is entitled to the benefits of it. So of course be even plausibly maintained in cases where long as any ground of suspicion is apparent on the face the line is wholly within the State; in such cases the of the instrument, the law presumes nothing, but

business is purely domestic, and not interstate, but leares the question as to the time when it was done to here the line of the company extends beyond the be ultimately found by the jury upon proofs to ad- State, and the message delivered to the company was duced by him who offers the evidence.”' (35)

undertaken to be trausmitted to a point in Iowa. In Simpson v. Daris (36) it was ruled that where a decla- The telegraph is an instrument of commerce. Interration in a promissory note alleges that the defendant course by telegraph is commercial intercourse, and made the note, and the answer denies this, and alleges where it extends beyond the State is interstate, and an alteration, proof of the defendant's signature is subject to the control of Congress. Pensacola Tel. Co. prima facie evidence that the whole body of the note v. Western U. Tel. Co., 96 U. S. 1; Telegraph Co. v. written over it is the act of the defendant; but the Texas, 105 id. 460. burden of proof. is on the plaintiff to show tha: the There is much conflict of opinion in the decisions of note declared on was the note of the defendant.(37) the courts of last resort upon this subject, and it will

Iu Bailey v. Taylor(38) the court refused to rule that be found to be no easy task to extract from the decisthere was a presumption that an alteration of the

ions well defined rules. The study of the many able amount of a note had been made after its execution,

opinions that have been delivered by our great judges, saying: "The result to which we have arrived is that beginning with that of the great chief justice, John where there is an erasure or alteration in an instru- Marshall, is an interesting one, but we do not feel ment under which a party derives his title, and the ad- called upon to review these cases. Three theories seem verse party claims that such erasure or alteration was to have been maintained-one that the States cannot improperly made, the jury are from all the circum- / legislate upon the subject at all, whether Congress has stances to determine whether the instrument is or has not exercised the power vested in it; another, thereby rendered invalid. Circumstances may be such that when Congress has exercised its power the States as may require this explanation on the part of the can adopt no valid legislation; and still another, that plaintiff, or on the other hand, may arise where it the States may legislate upon the subject even though would be absurd to require it."

Congress has exercised the power vested in it by the

John D. LAWSON. Constitution. We think however that the ultimate St Louis, Mo.

conclusion deducible from the later decisions is, that

the States cannot embarrass commercial communicaCONSTITUTIONAL LAW-TELEGRAPH - INTER

tion, abridge the freedom of commerce, discriminate STATE COMMERCE- PENALTY.

in favor of the products of one State, lay burdens upon

the instruments of commerce, or exact licenses from WESTERN UNION TEL. Co. v. PENDLETON.*

persons, natural or artificial, engaged in interstate

commerce, and that this is so whether Congress has or A statute imposing a penalty upon a telegraph company for has not legislated upon the subject. Gibbons v. Ogden,

failure to transmit a message as therein required, even as 9 Wheat.1; Brown v. Maryland, 12 id. 419; Willson v. applied to a message sent to another State, is not a viola

Blackbird, etc., Co., 2 Pet. 245; City of New York v. tion of the Constitution of the United States giving to Miln, 11 id.102; Thurlow v. Massachusetts,5 low. (U.S.) Congress the power to regulate commerce between the 504; Smith v.Turner, 7 id. 283; Cooley v. Board, etc.,12 id. States, but is a valid exercise of the police power which

299; State v. Wheeling, etc., Co., 13 id. 518; Smith v. belongs exclusively to the States.

State, 18 id. 1; Gilman v. Philadelphia, 3 Wall. 715; The sender of the message has the right to recover the penalty

Railroad Co. Pennsylvania, 15 id. 232; Welgiven by the statute. It is a penalty for a breach of duty ton v. State, 91 U. S. 275; Cook v. Pennsylvania, 97 arising in this state, and not damages for the breach of id. 575; Webber v. Virginia, 103 id. 344; Telegraph Co. contract, and the right to recover is not affected by the v. Texas, supra. fact that the particular act constituting the specific Accepting this conclusion as the law which rules our breach of duty occurred in another State.

decision, we still have no hesitation in affirming that FROM the Shelby Circuit Court. The opinion states our statute is not borne dowu by it. No discriminathe points.

tion is made in favor of any person, or in favor of any J. E. McDonald, J. M. Butler and A. L. Mason, for

article of commerce; the freedom of commercial inter

course is not abridged, and no new duty or burden is appellant.

imposed upon the company. The statute secures to all E. K. Adams and L. J. Hackney, for appellee.

alike the privilege of demanding that the duties of the ELLIOTT, J. Our statute provides that a telegraph corporation be performed with diligence, impartiality company with a line of wires wholly or partly within and good faith. It enforces an existing duty and prothe State shall,during the usual office hours, receive dis- vides a penalty, but it coufines the duty to no class patches, and on payment or tender of the usual charge, and denies the penalty to none. It is impossible to according to the regulation of the company, transmit conceive the slightest restriction upon commercial inmessages with impartiality and good faith in the or- tercourse, or the faintest discrimination in favor of der in which they are received, and for a failure to per- any person or thing. form this duty shall be liable to a penalty of $100, to be Granting then the lack of power in the State to recovered by the person whose dispatch is postponed abridge the freedom of commerce or to discriminate or neglected.

in favor of men or things, we may still maintain that The validity of this statute is contested upon the telegraph companies having offices and doing business ground that it infringes the provision of the Constitu- in our State may be compelled to discharge their dution of the United States which invests Congress with ties diligently and impartially, because in requiring power "to regulate commerce with foreign nations this a police power, inberent in all sovereignties, is and among the several States.” This position cannot rightfully exercised. We do not maintain that under

the guise of a police regulation the State can abridge (35) Jordan v. Stewart, 23 Penn. St. 246 (1854).

the freedom of commercial intercourse, or discrimi(36) 119 Mass. 269 (1876).

nate in favor of the products of one State, or grant (37) Simpson v. Davis, 119 Mass. 269 (1876).

commercial rights to the citizens of some particular (38) 11 Conn. 531 (1836).

State and deny them to others, but we do maintain * To appear in 95 Indiana Reports,

that the sovereign State has power to enact laws re



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