MARSTON, J.

After the evidence was all in, counsel for proponent requested the court to instruct the jury, 1st, "There is no evidence in the case tending to show that the testator when he executed the will in controversy was in any respect of unsound mind, and the jury are therefore bound to assume that he was fully competent to make such a will;" 2d, "Upon the whole case the verdict must be for the proponent." These requests were refused, and to the charge as given no exceptions were taken.

It was not seriously disputed on the argument but that there was testimony in the case tending to show that the testator did not have sufficient capacity to make the will in question. It was, however, urged very strenuously that there was not sufficient evidence, all of which is returned, to sustain the verdict in this case, and consequently that the second above request to charge should have been given.

We had supposed that the law was well settled in this State as to the duty of the court under such circumstances. It is true the question may not have been discussed at length, and the authorities bearing thereon cited in any one particular case, but the question has frequently been referred to and acted upon in cases where perhaps, at least in some of them, it was of minor importance. As the question is one of importance in this case and has been ably argued and authorities cited, more especially the decisions of the English courts and of the Supreme Court of the United States, it may be well to consider the matter at some length and see what the true rule is or should be in all such cases, and in the light thereof determine the controversy in this case. In England the rule is laid down that a scintilla of evidence clearly would not justify the judge in leaving the case to the jury; that there must be evidence on which they might reasonably and properly conclude that the issue was proven. See Ryder v. Wombwell, Law Rep. 4 Exch. 38, where many of the cases are collected and citations therefrom given.

When we turn to the decisions of the United States Supreme Court, it would seem at first view as though the rule there laid down was not uniform, especially as between some of the later and earlier cases. As, however, the earlier cases are cited in support of those later, we think there was no intention to overrule the former, which certainly were very clear upon this question. A brief reference to some of them may be permitted.

In Pleasants v. Fant, 22 Wall. 122, 22 L. Ed. 780, the true principle was said to be "that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury." In Commissioners v. Clark, 94 U. S. 284, 24 L. Ed. 59, following the English rule, it was said a scintilla would not be sufficient; that "before the evidence is left to the jury,

3 The argument of counsel and a portion of the opinion are omitted.

there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed."

* *

In Insurance Co. v. Rodel, 95 U. S. 238, 24 L. Ed. 433, Bradley, J., said: "It is hardly necessary to say, that, if there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and indeed could not properly, take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon. The judge may express his opinion on the subject, and in cases where the jury are likely to be influenced by their prejudices, it is well for him to do so; but it is entirely in his discretion."

Assuming that the English rule as already stated, which was followed and approved in Commissioners v. Clark, 94 U. S. 284, 24 L. Ed. 59, means just what is said, that a scintilla of evidence would not justify the judge in leaving the case to the jury, I can fully concur therein. Such a rule would be no more than what has repeatedly been followed in this state. * * *

It seems to me that this is the only safe rule. Under our system of jurisprudence, the jury is called to pass upon the facts.

It is not only their privilege but their right to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case on trial. The credibility of witnesses, the strength of their testimony, its tendency and the proper weight to be given it, are matters peculiarly within their province. The law has constituted them. the proper tribunal for the determination of such questions. To take from them this right is but usurping a power not given. The jury should be left entirely free to act according to their own judgment. Where there is a total defect of evidence as to any essential fact, or a spark, the least particle, a scintilla as it is termed, the case should be withdrawn from the consideration of the jury. Where, however, the evidence introduced has a legal tendency to make out a proper case in all its parts, then, although it may in the opinion of the trial court or the appellate court be slight, inconclusive, and far from satisfactory, yet it should be submitted to the jury, whose proper province it is to consider and determine its tendency and weight.

When there is a total want of evidence upon some essential fact, but the jury nevertheless find such fact, the finding is erroneous as matter of law, but when there is slight evidence in support thereof a finding thereon would be one of fact, upon which men might differ in opinion, but for a court to attempt the correction thereof upon writ of error would be but a correction of errors in fact and not in law, a power which this court does not possess.

As already said, it was conceded on the argument that there was some testimony given in this case tending to prove the issue. True it referred to a period sometime prior to the time of making the will,

yet that did not render it incompetent, but rather went to the effect, or weight and importance to be attached to it. It was proper to be considered by the jury with all the other evidence introduced in the case bearing upon that question. Much other testimony was introduced-testimony that was clearly admissible as bearing upon the issue made. It was argued, however, that much of it had no tendency whatever to support the issue; that the irritable disposition and profane language used by the testator did not tend to prove incapacity. There are many people who habitually indulge in the use of profane language, and should they abstain therefrom for any definite length. of time, it would be considered as something remarkable indeed, while there are others of a mild, gentlemanly disposition, who were never heard to utter a profane word or supposed by any to harbor an unclean thought. Should such an one become irritable, morose, and addicted to the use of profane language, and especially at times and on occasions when no cause or provocation had been given, would not such a change be considered passing strange indeed, and might it not when considered in the light of other circumstances, indicate quite clearly a deranged state of mind?

All these things were proper arguments to be addressed to and considered by the jury. The same facts which might in one case tend to prove insanity might in another have no such tendency, and no court could lay down or would attempt to lay down a rule that should govern all such cases, as to what did or did not tend to prove insanity. We are of opinion that there was evidence in this case which tended to prove the issue made. The weight and effect thereof was rightly left to the jury under proper instructions, and their finding we have no power to review.

The proceedings must be affirmed. The cause, however, was properly brought into this court, and the costs should be paid out of the estate in all the courts. It must be certified accordingly to the Circuit and Probate Courts. The other Justices concurred.

BURDEN OF PROOF

I. Burden of Proof and Burden of Proceeding1

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FARMERS' LOAN & TRUST CO. v. SIEFKE.

(Court of Appeals of New York, 1895. 144 N. Y. 354, 39 N. E. 358.)

Action by the Farmers' Loan & Trust Company, as committee for Frederick Siefke, against Henry Siefke. From a judgment of the general term (22 N. Y. Supp. 546) affirming a judgment for defendant, plaintiff appeals.

ANDREWS, C. J. The complaint alleged that the note sued upon was given for value, and was under the hand and seal of the defendant. The answer contained a general denial of the allegations in the complaint, and in separate paragraphs, stated to constitute separate defenses, alleged that the note was without consideration, and that it was altered in material parts, and, among other things, by affixing a seal thereto without the consent or privity of the defendant. On the trial the note was offered in evidence by the plaintiff, and he then rested. The execution of the note by the defendant seems to have been admitted, as no proof was given upon the subject. It purported to be signed by him, and a seal was attached to his signature.

The defendant thereupon entered upon the defense. The question of consideration was litigated, and the defendant also gave proof tending to show that the seal was attached without his knowledge or consent, by the plaintiff, after the execution and delivery of the note. The evidence on the part of the defendant, as to the alteration by the addition of the seal, was met by evidence in behalf of the plaintiff that the seal was attached before execution.

The case was submitted to the jury, under a charge of the judge, and the jury rendered a general verdict for the defendant. Judgment was entered on the verdict, from which the plaintiff appealed to the general term, which affirmed the judgment, and this appeal is from the judgment of affirmance.

The allegations of error are founded mainly upon the charge to the jury. The judge charged, in substance, that if the seal was attached to the note by the plaintiff after execution and delivery, without the knowledge or consent of the defendant, it constituted a material alteration, and the note was void. There was no exception to this part of the charge, and it must be taken, on this point, to have correctly stated the law. We are not to be understood, however, as dissenting from

1 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 32.

this view, but it is unnecessary now to consider it. The court fur-at ther proceeded to charge that the plaintiff was bound to establish, by Charge a preponderance of evidence, that the seal was not attached after the signature to the note. This was qualified afterwards by the statement that this burden rested upon the plaintiff after testimony had been given to show that the seal was attached after the inception of the hous

note. The plaintiff's counsel excepted to the charge, as made and explained. This exception presents the principal question in the case. . We think the charge was correct. Upon the pleadings, a general denial having been interposed by the answer to the whole complaint, the plaintiff was bound to establish every material fact therein alleged. The primary issue was the execution or nonexecution by the defendant of a sealed instrument. The plaintiff alleged the making by the defendant of a specialty creating a pecuniary obligation, and, issue having been taken on this allegation, the plaintiff was bound to establish the allegation by proof. If it had turned out on the trial that the allegation had been made by mistake, and that the instrument was not sealed, but was a simple contract only, or that the seal had been attached after execution, by a stranger, without the privity or knowledge of the plaintiff, it would have been in the power of the court to have permitted an amendment of the pleadings upon such terms as it should deem just.

But, as the pleadings stood, the question whether the defendant had executed a sealed instrument was an issuable fact, which was asserted on one side and denied on the other, and which the plaintiff was bound to establish, as a part of his case. The defendant, under a general denial, may adduce evidence to controvert what the plaintiff is bound to prove in the first instance. Milbank v. Jones, 141 N. Y. 345, 36 N. E. 388, and cases cited. And the general rule is well established that whatever a plaintiff is bound to prove in the first instance, as part of his case, he is bound to establish by a preponderance of evidence.

The burden of proof upon the issue of a material alteration of a written instrument, sued upon in its existing condition, presents no anomaly, but is governed by the general rule that the party alleging that the instrument sued upon is the act and deed of the defendant must establish it by proof. The case of Schwarz v. Oppold, 74 N. Y. 307, is a precise authority for the proposition that, under a general denial in an answer in a suit brought upon a written obligation, a material alteration may be proved. Under this authority, 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 confusion, sometimes, in treating of the burden of proof, arising out of unexact definitions. The burden is upon a plaintiff to establish his cause of action, when it is, in proper form, denied by the