#### Terrill v. Fowler.

Opinion delivered January 9, 1928.

*1011 H. B. Means, for appellant.

John L. McClellan, for appellee.

Kirby, J.

'The court erred, as insisted by appellant, in instructing the jury that the burden of proof was upon him to show the genuineness of the signature of the maker of the note.

The statute provides: “Where a writing purporting to have been executed by one of the parties is referred to in and filed with a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun.” Section 4114, C. & M. Digest.

It is true this court has- held that the genuineness of a writing may be contested without the filing of such affidavit denying its genuineness (St. L. I. M. S. Ry. v. Smith, 82 Ark. 105, 100 S. W. 884; Hall v. Rea, 85 Ark. 269, 107 S. W. 1176; Staggers v. White, 121 Ark. 328, 181 S. W. 139); but the instrument, unless the said affidavit is filed, or a verified answer denying its genuineness, may be read as prima facie evidence of its recitals. Staggers v. White, supra; Hughes v. Gardner, 144 Ark. 282, 222 S. W. 43.

*1012The court said in the last mentioned case:

> “In other words, a failure upon the part of the defendant to comply with the statute raised the inference or presumption of law that the' writing on which he is sued and purporting to he signed by him is genuine, and, having failed to file the affidavit provided by. the statute, the burden is cast on him to show that it is pot genuine. ’ ’

The court erred in instructing the .jury otherwise that the burden of proof was upon the plaintiff to show that the signature of defendant on the- note sued on was genuine, and in refusing to give appellant’s requested instruction No. 1.

The testimony of witnesses tending' to show that Shaw, the joint maker of the note, was a forg-er and had left the jurisdiction of the court, and also that he had forged the names of other and different persons to notes entirely distinct from and unrelated to the matter at issue, was incompetent, and the court erred in permitting its introduction. State National Bank v. Lark, 124 Ark. 432, 204 S. W. 101.

For the errors designated the judgment is reversed, and the cause remanded for a new trial.