cases, at p. 91, says: "Photographs also make it possible to put things to be compared close together in larged form. The only way certain visible things can be correctly interpreted is by bringing them close together within the angle of vision. This grouping is necessary because the average eye, or brain, retains an image but a very brief period of time, and cannot carry it over even a very short distance, in order to compare it with something else. Most observers cannot compare two characters on opposite sides of the same card. dissecting the photographs and grouping the parts to be compared, desirable side-by-side comparisons can be made that otherwise it is impossible to make without mutilating the original documents." And see 2 Wigmore, Ev. 2d ed. 797, p. 106, as quoted in the reported case (ADAMS v. RISTINE, ante, 1413).

By

And the advantage for purposes of comparison of grouped signatures apparently was recognized by the United States Supreme Court in Luco v. United States (1860) 23 How. (U. S.) 515, 16 L. ed. 545, where it, referring to a photograph of several signatures which had been grouped on one sheet, intimated that, in making a comparison and reaching a conclusion, it had been aided by such photograph.

And in the reported case (ADAMS v. RISTINE) it is expressly held that photographs of names and signatures placed in juxtaposition on the same plate, and showing questioned signatures and genuine ones, are admissible in evidence to enable expert witnesses to point out the similarities and dissimilarities in the writings, by illustrating their peculiarities, such as the formation of the letters, the spacing, the angularity, the hesitation, etc. And that parts of genuine signatures may be brought together in a single photograph without destroying the admissibility of the photograph for purposes of comparison with the alleged spurious signature, so long as it is represented to be what it really is, see State v. Ready (1909) 77 N. J. L. 329, 72 Atl. 445 (reversed on other grounds in (1909) 78 N. J. L. 599, 28

L.R.A. (N.S.) 240, 75 Atl. 564) as set out and quoted in the reported case (ADAMS v. RISTINE).

And the ADAMS CASE is authority for the proposition that photographs of writings grouped or placed in juxtaposition for the purpose of com-. paring genuine with disputed ones, or for emphasizing peculiarities found in the respective writings, are admissible in evidence to enable expert witnesses to bring the differences between genuine and alleged forged writings to the attention of the jury. Here the exhibit consisted of a book of photographs, and it was admitted over the objection that, because of the grouping and the character of the grouping and the use made of it by the expert who prepared it, it gave undue prominence to his testimony and tended to minimize other testimony and other writings in the case. In this connection the court remarked that, if the photographs did have the effect contended for, it was no fault of the photographs, which were "an aid to the jury in ascertaining the truth."

In the Illinois case of Murphy v. People (1904) 213 Ill. 154, 72 N. E. 779, which involved the authorship of an entry in a church record, it was held, although Illinois seems committed to the doctrine that handwriting cannot be proved by comparison of documents not in evidence, that a photograph of the page showing twelve entries conceded to be in the handwriting of the person in question, in addition to the entry in dispute, was admissible, and the photograph was used both by the experts called in the case and by the court in determining the authenticity of the questioned entry. The court said that it "had examined the photographic page of the record," and that the writing in the disputed entry was "so plainly different from that of the other entries" as to attract the attention at but a casual glance," and that the difficulty was "not to detect points of difference. but to find any points of resemblance."

But in Crane v. Dexter Horton & Co. (1893) 5 Wash. 479, 32 Pac. 223, photographs of the disputed signature and of certain genuine signa

tures, "made on paper so that all the signatures were close together," were rejected as immaterial and irrelevant. The court said: "Photography has come to be a well-recognized aid to judieial investigation; but there would seem to be no call for its use in such a case as the present one. The disputed signature was present, as were also some five hundred concededly genuine ones, so that some regard for convenience of comparison could be the only object to be gained."

And in Pennsylvania the district court, in Vanderslice v. Snyder (1895) 4 Pa. Dist. R. 424, held that a composite photograph of several genuine signatures was not admissible in evidence for comparison with a disputed signature, under the rule that the test

documents to be compared should be. established by the most satisfactory evidence before being submitted to the jury. Following this decision the Pennsylvania legislature passed an act relating to the competency of experts and the rules of evidence in questions of simulated or or altered handwriting, which, among other things, permitted experts to make comparisons, and expressly provided that, in formulating their opinions to the court and jury, they could be compelled to state the working principles and details of their investigation. It would seem that this statute would permit the use of photographs in explaining the expert's methods and details of work, as well as his process of reasoning, etc.

- burden of proof where rests. 2. The burden of proof is upon the person asserting the affirmative of an issue, including any negative proposition which he may have to show.

[See 10 R. C. L. 898, 899; 2 R. C. L. Supp. 1102; 4 R. C. L. Supp. 677.] -proving fact denied.

3. One alleging a fact which is denied has the burden of establishing it.

[See 10 R. C. L. 901.]

-shifting of burden of proof.

4. The burden of proof never shifts in a case, though the burden of going forward with the evidence may shift at various times during the trial from one side to the other as evidence is introduced by the respective parties.

[See 10 R. C. L. 897; 2 R. C. L. Supp. 1102; 4 R. C. L. Supp. 677.] 31 A.L.R.-91.

17. One giving evidence of the contents of a letter because of its alleged loss cannot complain that the writer was permitted to testify to such contents in rebuttal without giving notice to produce it.

- necessity of notice to produce.

18. Showing that a letter, testimony as to the contents of which is offered in evidence, was lost, obviates the necessity of a notice to produce it. [See 10 R. C. L. 920.]

-presumption as to author of letter.

19. A letter received in due course of mail in answer to a prior one addressed to and received by the person whose name is signed to it is presumed to have been the letter of such person.

[See 10 R. C. L. 878; 2 R. C. L. Supp. 1097.]

- contents of letter.

20. In an action on a note given for part of the purchase price of an automobile, evidence of the contents of a letter by the seller to the buyer, which was not answered and is shown to have been lost, which asks what should be done with a car which the buyer claimed to have turned in on the purchase price, but the seller claimed he took to resell if possible, is admissible as bearing upon the validity of such claim.

- clarifying evidence brought out on cross-examination.

21. A witness who has been crossexamined upon statements made by him to one to whom he sold an automobile which he alleged belonged to a third person should not be denied the right to testify as to other statements made at the same time, in an action to hold such third person liable on a note upon the purchase price of which such person claimed the automobile should be credited.

[See 28 R. C. L. 606.]

ment, the burden of showing that the latter has been altered is upon the party who alleges it."

The rule is stated more cautiously, though not analyzed, in 2 C. J. 1267. In addition to the cases cited in these authorities, sustaining the rule mentioned, see also Wagler v. Tobin, 104 Kan. 211, 178 Pac. 751; Central Trust Co. v. Kendall, 202 Ill. App. 294; Wicker v. Jones, 159 N. C. 102, 40 L.R.A. (N.S.) 69, 74 S. E. 801, Ann. Cas. 1914B, 1083; Arnold v. Wood, 127 Ark. 234, 191 S. W. 960; Craig y. National City Bank, 26 Ga. App. 128, 105 S. E. 632; Dan. Neg. Inst. 6th ed. § 1421. In the case of Williamsburgh Sav. Bank v. Solon, 136 N. Y. 465, 32 N. E. 1058, the court said: "Where the alteration is visible on the face of the instrument, the paper discredits itself and the holder should explain. But where the change simply makes the bond perfect in accordance with its own express terms and apparent purpose, there is nothing for the holder to explain. The burden falls on the adversary to prove an alteration such as will affect the instrument and he must show the facts on which he relies. That is both the reasonable and the settled rule."

If by the burden of proof above mentioned is not simply meant the burden to go forward with the evidence, and we think it is not, then clearly the statements referred to, that the authorities in a case like that at bar are harmonious, are not, as pointed out by himself for defendant, borne out by the facts, for it is held in a number of cases involving instruments showing no alterations apparent on their face,at least, so far as the opinions disclose, that, though the proof of signature and the introduction of the note in evidence raise a presumption of the validity of the whole document and make a prima facie case for plaintiff, compelling the defendant to go forward with the evidence, the burden of proof, nevertheless, where the execution of the instrument is denied, as here, remains upon plaintiff to satisfy the jury, upon

the whole evidence, that the instrument introduced is the identical instrument executed by defendant and that no alterations have been made therein. Farmers' Loan & T. Co. v. Siefke, 144 N. Y. 354, 39 N. E. 358; Foss v. McRae, 105 Me. 140, 73 Atl. 827; Eggman v. Nutter, 155 Ill. App. 390; Yost v. Minneapolis Harvester Works, 41 Ill. App. 556; Von Eherenkrook v. Webber, 100 Mich. 314, 58 N. W. 665, 60 N. W. 761; Simpson v. Davis, 119 Mass. 269, 20 Am. Rep. 324. Among these cases apparently should be placed J. I. Case Threshing Mach. Co. v. Peterson, 51 Kan. 713, 33 Pac. 470; Conkling v. Olmstead, 63 Ill. App. 649, and Merritt v. Dewey, 218 Ill. 599, 2 L.R.A. (N.S.) 217, 75 N. E. 1066. Upon the same principle were decided the following cases, involving instruments which a change had apparently been made at some time or other: Comstock v. Smith, 26 Mich. 306; Willett v. Shepard, 34 Mich. 106; Graham v. Middleby, 185 Mass. 349, 70 N. E. 416; Consumers Ice Co. v. Jennings, 100 Va. 719, 42 S. E. 879; Belfast Nat. Bank v. Harriman, 68 Me. 522. See Darraugh v. Denny, 196 Ky. 614, 245 S. W. 152.

in

All these cases proceed upon the theory that plaintiff must, under proper issues, prove his case, one element of which is that the document sued on is the identical document executed by defendant; that a defendant may admit his signature, but that this is not equivalent to an admission that he signed the identical document in issue; and that when he denies that the document is the one he signed the plaintiff must prove his affirmative allegation. That this position is not at all illogical is clear. We have found no authority, either courts or legal writers, who have discussed the conflict thus disclosed. Counsel for defendant contend that the rule above mentioned, laid down in Ruling Case Law, can mean no more than that, when a prima facie case is made out by the proof of signature and the introduction of the note, the burden of producing evidence shifts, and that