it can have no reference to the true burden of proof in the case, in the sense of the risk of nonpersuasion of the jury. While that, probably, is true with some of the cases, it certainly is not true with all. A considerable amount of confusion has, no doubt, existed and exists to-day in the minds of bench and bar as to the meaning of burden of proof and what has been called burden of evidence. The latter term is not exceedingly apt, and, if used in an instruction to a jury, without full explanation distinguishing it from burden of proof, would in all likelihood be very confusing; but it may be here used for the purpose of distinguishing it from the burden resting upon a party to establish his

-proving faet denied.

denied, he must establish it. He is the

actor, and as such remains so throughout the case as to the allegations which he makes, or rather must make. Having alleged the truth of a matter in issue, he must prove it. The party denying his allegations cannot have this burden at any time during the trial, for it would be absurd to say that both the plaintiff and defendant have the same burden on the same issue. State ex rel. Leonard v. Rosenthal, 123 Wis. 442, 102 N. W. 49. Hence the common phrase that the burden of proof never shifts, though the burden of going forburden of proof. Ward with the evidence may shift at various times during the trial from one side to the other, as the evidence is introduced by the respective parties. Chamberlayne, Ev. §§ 940, 941; 22 C. J. 69. A presumption of law may aid the plaintiff. That may arise upon the pleadings or during the course of the trial after the in

-shifting of

troduction of some evidence. Thus a prima facie case may be made for the plaintiff. If this

sumption of law.

case is not met, the effect of preverdict or judgment must necessarily go for the party in whose favor the presumption operates. Hence when such prima facie case is made, the burden of going ahead in the case and producing further evidence is shifted. But, at least according to the best-considered authorities, the prima facie case so made need not be overcome

by a preponderance -overcoming of the evidence, or prima facie evidence of greater

case.

In

weight, but needs only be balanced, put in equipoise, by some evidence worthy of credence, and, if that is done, the burden of the evidence has been met and shifts back to the party having the burden of proof, and who, if he would win, must not alone begin by making out his case, but must end by keeping it good. other words, the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial. If upon all the facts the case is left in equipoise, the party affirming must fail. We shall cite only a few of the authorities:. Wigmore, Ev. 2d ed. §§ 2483–2490; Chamberlayne, Ev. § 940; Thayer, Ev. 370; Heinemann v. Heard, 62 N. Y. 448, 455; Ginn v. Dolan, 135 Am. St. Rep. 761 and note, 766, 767 (81 Ohio St. 121, 90 N. E. 141, 18 Ann. Cas. 204); Klunk v. Hocking Valley R. Co. 74 Ohio St. 127, 77 N. E. 752, 20 Am. Neg. Rep. 176; Gibbs v. Farmers' & M. State Bank, 123 Iowa, 742, 99 N. W. 703; Powers v. Russell, 13 Pick. 76; Scott v. Wood, 81 Cal. 398, 22 Pac. 871; Hansen v. Oregon Washington R. & Nav. Co. 97 Or. 190, 188 Pac. 963, 191 Pac. 655; Sweeney v. Erving, 228 U. S. 233, 57 L. ed. 815, 33 Sup. Ct. Rep. 416, Ann. Cas. 1914D, 905; Pease v. Cole, 53 Conn. 53, 55 Am. Rep. 53, 22 Atl. 681; Cleveland, C. C. & I. R. Co. v. Newell, 104 Ind. 264, 54 Am.

Rep. 312, 3 N. E. 836, 17 Am. L. Rev. 892; 59 Cent. L. J. 282.

dence necessary.

He who has the burden of proof, properly speaking, has imposed on him the obligation -weight of evi- to establish the existence of the facts alleged by evidence at least sufficient to destroy the equilibrium and overbalance any weight of evidence produced by the other party. Guild v. More, 32 N. D. 432, 155 N. W. 44; Palmer v. Huston, 67 Wash. 210, 121 Pac. 452. On the other hand, the burden of evidence, or to go forward with it, means simply the

-what will meet prima facie case.

Appeal-error in

meeting of a prima facie case made, rather than producing a preponderance of the evidence, or evidence of greater weight. Cody v. Market Street R. Co. 148 Cal. 90, 93, 82 Pac. 667; Alabama & V. R. Co. v. Groome, 97 Miss. 201, 52 So. 703. Hence it would seem to be a rule generally accepted, though there are authorities to the contrary, that it is iminstruction- proper to instruct a burden of proof. jury that the defendant must establish any fact which merely negatives or tends to overthrow the necessary allegations of the plaintiff by a preponderance of the evidence, or by evidence of greater weight, though the plaintiff has made a prima facie case through the operation in his favor of a presumption, or otherwise, compelling the defendant to go forward with the production of further evidence. Such facts so negativing the plaintiff's allegations in issue need not, as heretofore stated, be established by the greater weight of the evidence; if they equalize the weight of plaintiff's evidence, if they put plaintiff's case in equipoise, that is sufficient; and hence such instruction above mentioned would erroneously require a greater degree of proof than is necessary. The rules here stated are illustrated by cases involving the doctrine of res ipsa loquitur (see note in 16 L.R.A. (N.S.) 527), and also by cases, not

at all in harmony, dealing with the question of the burden of proving consideration of bills and notes (see 8 C. J. 994; Shaffer v. Bond, 129 Md. 648, 99 Atl. 973, and cases cited).

In the ordinary case the burden of proof is on the plaintiff, and, as indicated, it always is on him whenever the defendant simply traverses affirmative allegations of the former, or simply seeks to establish new and distinct facts, not by way of confession and avoidance, but as negativing the proposition on which plaintiff seeks to recover. Chamberlayne, Ev. §§ 944, 947; Wilder v. Cowles, 100 Mass. 487. But there are many cases where the burden of proof, either as to the whole case or on part of the issues joined by the parties, is on the defendant. It is on him as to all affirmative defenses, whether they relate Evidence-burto the whole case or den on defendonly to certain is

ant.

sues in the case. As to such defenses he is the actor, the plaintiff, and hence must establish the allegations thereof. Thayer, Ev. supra, 369; Chamberlayne, Ev. supra, § 947. There is no true shifting of the burden of proof here. It means only that each party must establish his own case. Chamberlayne, Ev. supra, § 953. Thus it would seem clear that the solution of the question, whether the instruction given by the court below in the case at bar is or is not erroneous, depends entirely on whether the claim of alteration, made by the defendant, is or is not an affirmative defense. We might mention, in passing, that caution must be exercised in determining whether a defense is affirmative in apparently, but not truly, as is ilits nature or not. Some may be so lustrated in Pierce v. Baker, Tex. Civ. App., 238 S. W. 699, and Illinois Steel Bridge Co. v. Wayland, 107 Kan. 532, 192 Pac. 752, involving the issue of payment. See also Wilder v. Cowles, supra; Pom. Code Rem. 3d ed. § 671; Chamberlayne, Ev. supra, §§ 947, 952; Wylie v. Marinofsky, 201 Mass. 583, 88 N. E. 448 (replevin); Starratt v. Mullen,

148 Mass. 570, 2 L.R.A. 697, 20 N. E. 178.

We should naturally expect to receive some light on the immediate question before us from those cases which have had under consideration the point as to whether an alteration of an instrument is to be pleaded or not. Under our statute the answer must contain "a statement of any new matter constituting a defense" (Wyo. Comp. Stat. 1920, § 5659, subd. 2), and if the claim of alteration is an affirmative defense, then, no doubt, the defense must be specially pleaded in this state, which was in fact done in the case at bar; if it is not an affirmative defense, then a general denial would suffice.

"A defense cannot be of facts that may be proved under a general denial, but it must consist of new matter." 31 Cyc. 218.

216 Pac. 691.)

It would seem that, under the system of common-law pleading, a number of of affirmative defenses might be shown under the general issue. Chamberlayne, Ev. supra, § 953; Thayer, Ev. supra, 379; 5 C. J. 1405; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696. But the Code system of pleading was adopted so that each party might be fully apprised of the affirmative claims of the other, and we should therefore expect the ruling of the courts in the states having adopted that system to have taken the view above expressed on the question of alteration. But that is far from true. Conspicuous examples are found in Nebraska, Indiana, and Washington. It is held in these states, in effect at least, that a plea of alteration of an instrument is an affirmative defense. Teske v. Baumgart, 99 Neb. 479, 156 N. W. 1044; Wolferman v. Bell, 6 Wash. 84, 36 Am. St. Rep. 126, 32 Pac. 1017; Slyfield v. Willard, 43 Wash. 179, 86 Pac. 392; National City Bank v. Shelton Electric Co. 96 Wash. 74, 164 Pac. 933; Fudge v. Marquell, 164 Ind. 447, 72 N. E. 765, 73 N. E. 895. At the same time the courts of these states hold that the defense may be proved under a gen

eral denial, or a plea equivalent thereto. Gandy v. Bissell, 72 Neb. 356, 100 N. W. 803 (by a divided court); Fairhaven v. Cowgill, 8 Wash. 686, 36 Pac. 1093 (by a divided court); Fudge v. Marquell, supra. In Alabama the law on this subject is the same as in the three states just mentioned. Bouldin v. Barclay, 121 Ala. 427, 25 So. 827; Yancy v. Gordon, 172 Ala. 439, 55 So. 239, Ann. Cas. 1913E, 251. In fact, the rule in the majority of states, some of the courts doubtless following or influenced by the rules under common-law pleading, is to the effect that a defense of alteration may be shown under a general denial, or under a plea of non est factum or other similar plea. See cases collated in 2 C. J. 1260 et seq., and in note Ann. Cas. 1913E, 252; Kurth v. Farmers & M. State Bank, 77 Kan. 475, 15 L.R.A. (N.S.) 612, 127 Am. St. Rep. 428, 94 Pac. 798; Palomaki v. Laurell, 86 Or. 491, 168 Pac. 935. This is the rule in New York and Massachusetts; and the courts of these states have been consistent in their holdings as to pleading and proof, deciding, as we have seen, that the defense of alteration is a defense simply negativing the affirmative claims of the plaintiff. Thus the case of Farmers' Loan & T. Co. v. Siefke, 144 N. Y. 354, 39 N. E. 358, is practically based on the previous holding in Schwarz v. Oppold, 74 N. Y. 307, in which it had been decided that evidence of the defense of alteration is admissible under a general denial. The court in the Siefke Case, after referring to the Schwarz Case, said: "Under this authority [Schwarz v. Oppold, supra], we see no escape from the conclusion that evidence of alteration, which goes to the identity of the instrument, controverts a fact which a plaintiff is bound to prove in the first instance, that the instrument is the act of the defendant."

There is contained, as we have stated, considerable logic in the position thus taken. But a different viewpoint may be adopted with rea

son. Looking at the question from a different angle, the claim of alteration is a claim both confessing and avoiding. Under a plea of that kind the true burden of proof is always on the party setting it up, since he then becomes the actor. 2 Chamberlayne, Ev. supra, §§ 946, 947, 951-953; Cowen Co. v. Houck Mfg. Co. 161 C. C. A. 293, 249 Fed. 285; Cotten v. Willingham, Tex. Civ. App., 232 S. W. 572. In such case as applicable here, the claimant confesses that he executed the identical document in question, not exactly in the form then appearing, but still that document as it was originally; he admits its full validity at the time of its execution, but pleads in avoidance that at some time thereafter the instrument became void by reason of an alteration made therein. Hence, while such a plea is not, perhaps, a true plea in confession and avoidance in all particulars, it is similar to it, and hence, too, in accordance with the holding of a number of courts, it is an affirmative defense, which must be set up in order to admit of the introduction of any evidence of the alteration. 21 R. C. L. 569; Davidson v. Cooper, 11 Mees. & W. 778, 152 Eng. Reprint, 1018, 1 Dowl. & L. 377, 12 L. J. Exch. N. S. 467; Parry v. Nicholson, 13 Mees. & W. 778, 153 Eng. Reprint, 327, 2 Dowl. & L. 640, 14 L. J. Exch. N. S. 119; Mason v. Bradley, 11 Mees. & W. 590, 152 Eng. Reprint, 941, 1 Dowl. & L. 380, 12 L. J. Exch. N. S. 425, 7 Jur. 496; Hemming v. Trenery, 9 Ad. & El. 926, 112 Eng. Reprint, 1465, 1 Perry & D. 661, 8 L. J. Q. B. N. S. 160; Hessig-Ellis Drug Co. v. Todd-Baker Drug Co. 153 Iowa, 11, 132 N. W. 866; Tedder v. Fraleigh-Lines-Smith Co. 55 Fla. 496, 46 So. 419; Grand Lodge, K. P. v. State Bank, 79 Fla. 471, 84 So. 528; Commercial Secur. Co. v. Donald Drug Co. 112 S. C. 457, 100 S. E. 359; Sandford v. Smith, 5 Bush, 474; Wall v. Muster, 23 Ky. L. Rep. 556, 63 S. W. 432; Equitable Life Assur. Soc. v. Meuth, 145 Ky. 160, 746, 140 S. W. 157, 141 S. W. 37, Ann. Cas. 1913B, 661; Na

tional Bank v. Nickell, 34 Mo. App. 298; Boomer v. Koon, 6 Hun, 645.

The case of Davidson v. Cooper, 11 Mees. & W. 778, 152 Eng. Reprint, 1018, 1 Dowl. & L. 377, 12 L. J. Exch. N. S. 467, is almost the same kind of a case as Siefke v. Siefke, 3 Misc. 81, 22 N. Y. Supp. 546, and is directly opposed to the latter. Other cases, while not as directly in point as the foregoing, have treated a claim of alteration, particularly when not apparent on the face of the instrument, as one affirmative in its nature. United

States v. Linn, 1 How. 104, 111, 11 L. ed. 64, 66; Brown v. Phelon, 2 Swan, 629; Bumpass v. Timms, 3 Sneed, 459; Meikel v. State Sav. Inst. 36 Ind. 355; Palmer v. Blanchard, 113 Me. 380, 94 Atl. 220, Ann. Cas. 1917A, 809; Hagan v. Merchants & B. Ins. Co. 81 Iowa, 321, 329, 25 Am. St. Rep. 493, 46 N. W. 1114. To the same effect are those cases which hold that the alteration of an instrument must be proved either by a preponderance of the evidence or by clear and convincing testimony, for it follows, from what we have already said herein, that any defense which must be thus shown must necessarily be, at least in effect, in the nature of an affirmative defense. Included in these cases are Brunton v. Ditto, 51 Colo. 178, 117 Pac. 156; Brown v. Colquitt, 73 Ga. 59, 54 Am. Rep. 867; Forbes v. Madden, 98 Kan. 559, 158 Pac. 850; Beck v. Heckman, 140 Iowa, 351, 132 Am. St. Rep. 277, 118 N. W. 510; Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140. See also the dissenting opinion of Mr. Justice Mullin in 6 Hun, 645, and the dissenting opinion of Mr. Justice Pryor in Siefke v. Siefke, 3 Misc. 81, 22 N. Y. Supp. 546.

The question of pleading, as well as that of the burden of proof of an alteration of an instrument, is new in this state, and we must adopt the rule which we deem to be most productive of justice on the whole. We need not enter into the vexed questions arising when an alteration appears on the face of the instrument,

though it is probable that when such alteration appears to be suspicious a different rule than herein laid down would be adopted. But we confine our decision to a case where an instrument shows no apparent alteration on its face. The questions of pleading and of burden of proof go hand in hand; if the claim of alteration is affirmative, it must be specially pleaded and proved by the party relying thereon, although, of course, the necessity of pleading it may be dispensed with, if already pleaded by the other party. Digen v. Schultz, 65 Mont. 190, 210 Pac. 1057. Chamberlayne, Ev. supra, § 946.

There seems to be no invariable test to determine what is and what is not an affirmative defense. Thayer, Ev. supra, 376, says: "But as time passes and the conceptions on which legal obligation is determined come from age to age to rest on a new analysis, it would seem that the test of an affirmative case must also change and be made to depend more commonly than it does now, and more distinctly, on the newly accepted ideas and analysis."

The definition given in Bond v. Corbett, 2 Minn. 248, 255, Gil. 209, seems to fit the case at bar when it defines an affirmative defense as "something which does not deny wholly the transaction alleged, but seeks to avoid it by what took place subsequently, or by some legal difficulty which exists to a recovery.

In Hellmuth v. Benoist, 144 Mo. App. 695, 698, 129 S. W. 258, it is said: "Under a general denial defendant may prove any state of facts which tends to show that plaintiff never had a cause of action.

If the plaintiff ever had a cause of action, and, for any reason, his right to recover has been extinguished, then the facts which go to defeat his cause of action must be pleaded."

But the general test that has been applied, and which was applied in the cases holding that the burden of proof on the whole case is on plaintiff to show that there was no

alteration, is that all facts which directly tend to disprove any one or more of the averments of the opposite party may be offered under the general denial. Pom. Code Rem. § 673. This test has not, however, been always consistently applied, as, for example in the defense of payment where plaintiff alleges nonpayment, or in the defense of justification in an action for defamation, where plaintiff alleges the falsity thereof. Phillips, Code Pl. §§ 363, 385. Logic in law must, to some extent, be tempered by considerations of public policy and justice. The premises from which conclusions are drawn may not always and invariably be applicable to a like extent. It was admirably said in Spilene v. Salmon Falls Mfg. Co. 79 N. H. 326, 108 Atl. 808: "The argument against the free application of the idea that under certain circumstances the defendant should be called upon to produce evidence rests in its final analysis upon the theory that, since the plaintiff makes a charge, he must prove it. But this general rule is not now, and never has been, carried to the extreme limit of its logic. Many defenses are treated as matters in confession and avoidance; and, when they are pleaded, the burden is put upon the defendant in both senses. He has the duty to go forward and produce evidence and also the risk of nonpersuasion. If he is sued upon a promissory note, he must seasonably deny his signature, or his nonaction is taken as his admission of the signature. The logic of the general principle that the plaintiff should have the duty to go forward and the risk of nonpersuasion has always been modified by the application of what was at the time deemed to be the common sense of the situation. It may be that many of the cases have gone too far in this respect. It is undoubtedly true that the authorities are not harmonious; yet the essential soundness of the principle which they have sought to apply cannot be doubted."

It is said in Wigmore on Evidence,