notice to produce is not necessary in order to lay a foundation for secondary evidence. But writings which have been produced upon notice are not thereby made evidence unless the party demanding their production so inspects them as to become acquainted with their contents. If he does examine them, to that extent they are, according to some of the decisions, evidence for both parties to the cause.2

If the fact of a demand and refusal to produce be left in doubt, or if the existence of and the search for the writing are not shown, secondary evidence of the contents of the instrument will not be received. The sufficiency of the proof that the instrument cannot be produced by the party desirous of proving its contents by secondary evidence is for the judge, and his decision will not be reviewed unless it is based upon an error of law.5

§ 127. Writings obtained by fraud or deceit - Decoy letters. The fact that documentary evidence has been obtained illegitimately or irregularly, or secured by the practice of deceit upon a person against whom they are introduced, will not, if it is in other respects admissible, cause its rejection." So documentary evidence obtained by the use of decoy letters is admissible very often from the necessity of the case in the prosecution of a person indicted for mailing obscene articles,

11 Greenl. on Evid., § 561. Cf. Bourne v. Boston, 2 Gray, 494; Blanchard v. Young, 11 Cush. 341, 345.

2 Calvert v. Flower, 7 C. & P. 386; Long v. Drew, 114 Mass. 77; Clark v. Fletcher, 1 Allen, 53. Contra, Blake v. Russ, 33 Me. 360; Austin v. Thompson, 45 N. H. 113. Marking paper as an exhibit does not necessarily make a writing evidence. Castell v. Millison, 41 Ill. App. 61. See post, § 142.

Nolan v. Pelham, 77 Ga. 262; Hanover F. L. Co. v. Lewis, 23 Fla. 193; 1 S. Rep. 863.

4 Milford v. Veazie (Me., 1888), 14 Atl. Rep. 730; Smith v. Brown, 151 Mass. 339; United States v. Sutton, 21 How. 170, 175; Lindauer v. Mey

berg, 27 Mo. App. 285; Stratton v. Hawks, 43 Kan. 541; Carr v. Miller, 42 Ill. 179; Walker v. School Dist., 22 Conn. 326.

5 Smith v. Brown (Mass., 1890), 24 N. E. Rep. 31; Bonds v. Smith, 106 N. C. 553; Gorgas v. Hertz, 150 Pa. St. 538; Bain v. Welsh, 85 Me. 108.

61 Greenl. on Evid., § 254a, citing Com. v. Dana, 2 Met. 327, 329; Legatt v. Tollervey, 14 East, 202. "Where the guilty intent to commit crime has been formed, any one may furnish opportunities or even lend assistance to the criminal to expose him. But no court will countenance a violation of positive law or contrivances for inducing a person to commit a crime." United States v. Whittier, 5 Dill. 39, 45, by Treat, J.

for robbing the mails, or for a violation of the postal or revenue laws. The manner in which the evidence has been procured will not be inquired into by the court, nor should it be permitted to discredit its force in the mind of the jury.1 In the case of an indictment for sending obscene literature through the mails, it is immaterial that the evidence against the accused consisted of certain writings sent to a detective under an assumed name. But it is always necessary in prosecuting for a theft of mail matter that the decoy letter should have become a part thereof by deposit in the mail in some of the ways provided by the post office department.'

§ 128. Spoliation and alteration distinguished - Effect of material alterations.- The act of a stranger to the writing resulting in its alteration or mutilation does not change its legal effect if the writing remains legible and a trace of the seal can be seen where a seal is required. Accordingly the alteration or total destruction of a deed or other writing by a stranger has no other effect upon the rights of the party claiming under it than to compel the proof of its loss to allow the introduction of secondary evidence of its contents. But a distinction is made between a spoliation by a stranger, frequently done accidentally, and for which the innocent party cannot justly be called upon to suffer a loss, and the deliberate alteration of the writing. The word "alteration" as thus used does not refer to every cancellation, interlineation or

1 United States v. Slenker, 32 Fed. Rep. 694; Speiden v. State, 3 Tex. App. 156; Wright v. State, 7 id. 574; United States v. Rapp, 30 Fed. Rep. 818; Saunders v. People, 38 Mich. 222; United States v. Cuttingham, 2 Blatchf. 470; People v. Collins, 53 Cal. 185; State v. Jansen, 22 Kan. 498; People v. Noelke, 94 N. Y. 137; Commonwealth v. Cohen, 127 Mass.

282.

2 United States v. Bott, 11 Blatchf. 346; Bates v. United States, 10 Fed. Rep. 92, 97-100. Contra, United States v. Whittier, 5 Dill. 39-41.

3 United States v. Rapp, 30 Fed. Rep. 822.

41 Greenl. Evid., § 566.

5 Consaul v. Sheldon, 35 Neb. 247; In re Leigh (1892), Prob. 82; Cutts v. United States, 1 Gall. 69; Boyd v. McConnell, 10 Humph. (Tenn.) 68; United States v. Spalding, 2 Mason, 478; Boteler v. Dexter, 20 D. C. 26, Anthony v. Beal, 111 Mo. 637; Marshal v. Yougler, 10 S. & R. 164; Raper v. Birkbeck, 15 East, 17; Nichols v. Johnson, 10 Conn. 192; White Sew. M. Co. v. Dakin, 86 Mich. 581; Davis v. Shafer, 50 Fed. Rep. 74; Wylie v. Miss. Pac. R. Co., 41 Fed. Rep. 623.

erasure made in the instrument, but is confined to those by which the original legal significance of its language is changed; and usually to those changes only in which a fraudulent intent exists or may be implied from all the circumstances.1 Where such an alteration is shown to have been made by a party, the decisions are unanimous in supporting the rule that the writing, whether under seal or not, is thereby made void, upon the manifestly just principle that no man shall be allowed to act fraudulently without assuming the risk of losing if his fraud is detected. But mere memoranda made on a writing, or immaterial alterations by which the writing is not made to convey a different meaning in any essential respect, will not avoid it, provided they are innocently made. So where terms are inserted by a party which the law would supply, or which have no meaning, his act will not be a material alteration or vitiate the whole instrument. Where an alteration is fraudulently made it has been considered to be of no importance. whether it is material, the presence of a fraudulent intent being deemed sufficient to avoid the writing.5

In the discussion of the alteration of writings the distinction between covenants and contracts which are executed and

1 Express Co. v. Aldine Press, 126 Pa. St. 347; King v. Rea, 21 Pac. Rep. 1084; Croswell v. Labree, 81 Me. 44; First Nat. Bank v. Carson, 60 Mich. 432.

2 Wegner v. State, 28 Tex. App. 419; Hollingsworth v. Holbrook (Iowa, 1890), 45 N. W. Rep. 561; Palmer v. Poore, 121 Ind. 135; Flanigan v. Phelps, 42 Minn. 186; Sanders v. Bagwell (S. C., 1893), 16 S. E. Rep. 770; Bank v. Nickell, 34 Mo. App. 295; Wiseman v. Fleischer, 10 Pa. Co. Ct. R. 300; Magers v. Dunlap, 39 Ill. App. 618; Walton v. Campbell (Neb., 1892), 52 N. W. Rep. 883; Gordon v. Bank, 144 U. S. 97; Sherwood v. Merritt, 83 Wis. 233; Burnham v. Gosnell, 47 Mo. App. 637; Little Rock Trust Co. v. Martin, 21 S. Rep. 468; Croswell v. Labree, 81 Me. 44; Clapp v. Collins,

7 N. Y. S. 98; Bank v. Wolff, 79 Cal. 69; Burrows v. Klunk, 70 Md. 451. The materiality of the alteration is a question for the court. Pritchard v. Smith, 77 Ga. 463; McIntyre v. Velte, 153 Pa. St. 350.

3 Maness v. Henry (Ala., 1893), 11 S. Rep. 470.

4 Swigart v. Weare, 37 Ill. App. 258; Reed v. Kemp, 16 Ill. 445; Mach. Co. v. Barry, 2 Misc. Rep. 264; Hunt v. Adams, 6 Mass. 519; Smith v. Crooker, 5 Mass. 538; Fischer v. King, 53 Pa. St. 3; Knapp v. Maltby, 13 Wend. 587; Green v. Beckney, 3 Ind. App. 39; Bank v. Good, 44 Mo. App. 129; Brown v. Purkham, 18 Pick. 172; Magers v. Dunlap, 39 Ill. App. 618.

51 Greenl. on Evid., § 568. See cases supra; Smith v. Dunbar, 8 Pick. 246.

those which are executory merely should not be lost sight of.1 Thus in the case of a deed the grantee does not hold his title by virtue of the existence of the deed, which is now only the written evidence of a past transaction, and after his estate is once vested he may alter or destroy the deed without destroying his title to the estate. But the deed, where it has been materially altered by him with a fraudulent intent, is no longer evidence in his hands in any proceedings founded upon its covenants or agreements.3 Where the alteration is made before delivery, or after delivery with the consent of both parties, the validity of the instrument will not be affected. Where a power of attorney, deed' or customs bond or an undertaking on appeal or similar instrument is intentionally executed in blank as to subject-matter, or amount or name of the party, and is subsequently filled in by one of the parties, the writing will be valid and will be admissible in evidence."

9

1 Gleason v. Hamilton, 138 N. Y. 353.

2 If the alteration was made before record, where record is necessary to vest title in the grantee, the altered deed, when registered, will be inoperative and title will remain in the grantor. Respess v. Jones, 102 N. C. 5.

3 Woods v. Hilderbrand, 46 Mo. 284; Wallace v. Harmstead, 44 Pa. St. 492; Dana v. Newhall, 13 Mass. 498; Fletcher v. Memsur, 5 Ind. 267; Rifener v. Bowman, 53 Pa. St. 318; Bliss v. McIntire, 18 Vt. 466; Coit v. Starkweather, 8 Conn. 289; Com. v. Hanson, 1 Nott & McC. (S. C.) 554; 1 Greenl. on Evid., § 568; Hollis v. Harris (Ala., 1893), 10 S. Rep. 377; Jackson v. Gould, 7 Wend. 364; Russell v. Longmore, 29 Neb. 286; Arrison v. Harmstead, 2 Barr, 191; Hatch v. Hatch, 9 Mass. 307; McIntyre v. Velte, 153 Pa. St. 350; Whitmer v. Fry, 10 Mo. 348; Alkire v. Kahla, 123 Ill. 496. So it has been held that the grantee will not be permitted to prove the covenant by parol. Martindale v. Follet, 1 N. H. 95, and cases supra.

4 Stewart v. Preston, 1 Fla. 10; Boston v. Benson, 12 Cush. (Mass.) 61; Wright v. Wright, 7 N. J. L. 175; Campbell v. McArthur, 2 Hawks (N. C.), 33; Britton v. Stanley, 4 Whart. (Pa.) 114; Ravisies v. Alston, 5 Ala. 297.

5 Wooley v. Constant, 4 Johns. 54; Speake v. United States, 9 Cranch, 28; Smith v. Weed, 20 Wend. 184; Berry v. Haines, 4 Wheat. 17; Stiles v. Probst, 69 Ill. 382; Tompkins v. Corinth, 9 Cow. (N. Y.) 255; Jackson v. Johnson, 67 Ga. 187; Collins v. Collins, 51 Miss. 511; Bassett v. Bassett, 55 Me. 125.

6 Egleton v. Gutteridge, 11 M. & W. 468.

Cribben v. Deal, 21 Oreg. 211. 8 Bank v. Kortright, 22 Wend. 348.

9 Ex parte Decker, 6 Cowen, 59. 10 Christian Co. Bank v. Good, 44 Mo. App. 129; Gordon v. Jeffery, 2 Leigh (Va.), 410; Gilbert v. Anthony, 1 Yerg. 69; Knapp v. Maltby, 13 Wend. 587; Plank-road Co. v. Wetsel, 21 Barb. 56; Shelton v. Dearing, 10 B. Mon. 405. See remarks of Mr. Jus

If a person through inadvertence and negligently issues a negotiable instrument in which spaces or blanks are left, affording an opportunity for the insertion of words without exciting suspicion, and the note is altered, the writing will be evidence against the maker in the hands of a bona fide holder for value.1

$ 129. Alterations - Presumptions and burden of proof to explain. When an instrument offered shows alterations or interlineations on its face, it may justly be regarded with some suspicion and the party claiming under it should be compelled to account for its altered condition. This he may do by slight evidence if upon examination the alteration is noted in the attestation clause as having been made prior to or contemporaneously with its execution, or if the alteration is against his interest. Whether any presumption exists as to the date of an unexplained alteration in a deed or similar writing the courts are divided. It has been held that, as fraud will not be presumed, an alteration in an instrument inter vivos will, in the absence of suspicious circumstances, be presumed to have been made before delivery. On the other hand, other decisions deny the existence of any presumption,

tice Johnson in Duncan v. Hughes, Bailey v. Taylor, 11 Conn. 531; Coul1 McCord, 239, 240. son v. Walton, 9 Pet. 62; Russell v. Longmore, 29 Neb. 209; Zimmerman v. Camp, 155 Pa. St. 352.

1 Brown v. Phelan, 2 Swan (Tenn.), 629; Meikel v. Savings Institution, 36 Ind. 355; Bechtel's Appeal (Pa., 1890), 19 Atl. Rep. 412; Beaman v. Russell, 20 Vt. 205: Bailey v. Taylor, 11 Conn. 531; McCormick v. Fitzmorris, 29 Mɔ. 34; Muckleroy v. Bethany, 27 Tex. 551.

4 Stillwell v. Patton, 18 S. W. Rep. 1075; 108 Mo. 353; Boothby v. Stanley, 34 Me. 515; No. Riv. Meadow Co. v. Shrewsbury Church, 2 N. J. Eq. 424; Houston v. Jordan, 82 Tex. 352; Dow v. Jeurl, 18 N. H. 356; Galland v. Jackman, 26 Cal. 85; United States v. Linn, 1 How. 104; Harding v. Bank, 81 Iowa, 499; Bedgood v. McLain, 89 Ga. 793; Jackson v. Osborn, 2 Wend. 555.

Elgin v. Hall, 82 Va. 680; Hess' Appeal, 26 W. N. C. 121; Capehart v. Mills (Ala., 1893); Johnson v. First Mar. B. R., 28 Neb. 492; Tillon v. Insurance Co., 7 Barb. 564; Stayner v. Joyce, 120 Ind. 99; Hartley v. Carboy, 150 Pa. St. 23; Newcome v. Presbury, 8 Met. 406; Nesbitt v. Turner, 155 Pa. St. 429. As to expert evidence to explain alterations, see § 141. In re Carver, 23 N. Y. S. 753; 11 Conn. 531; Hunting v. Finch, 3

5 Tiedeman on R. P., § 790; Wilde v. Armsby, 6 Cush. 314; Comstock v. Smith, 26 Mich. 306; Knight v. Clement, 8 A. & E. 215; Herrick v. Malin, 22 Wend. 388; Beaman v. Russell, 20 Vt. 205; Bailey v. Taylor,