Titford v. Knott — 2 Johns. Cas. 211

Majority

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Titford against Knott.

Headnote

The hand-writing of the maker or endorser of a note may be proved by witnesses from their previous knowledge of his hand-writing, derived from having seen the person write, or from authentic papers, received in the course of business ; but if the witness has no previous knowledge of the handwriting, he cannot be permitted to decide upon it, in court, from a comparison of hands.

Whether papers signed by the party, admitted to be genuine, can be delivered to a jury, to determine, by a comparison, as to the genuineness of the paper in question 1 Qumre.

The confidential clerk of the plaintiff, tvas admitted, to prove a'correspondence by letters, between the plaintiff and defendant, who resided in London, and to testify, that from the knowledge that he had acquired from the letters of the defendant, received during this correspondence, he believed the endorsement in question, to be the hand-writing of the defendant, though the witness had never seen the defendant write.

This was an action on the case, brought by the plaintiff, as the endorsee of a promissory note, against the defendant, as the maker, and was tried at a circuit court, held in the city of New York, on the 9th day of April, 1800, before Mr. Ch. J. Lansing.

The plaintiff called John Goodeve, as a witness, who said that he had known the defendant for several years, but was not well acquainted with his hand-writing ; that he had been bail for the defendant to the sheriff, in this action, and upon that occasion, he believed he had seen the defendant sign his name to the bail bond which was produced by the plaintiff’s

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counsel. The witness said that the bail bond produced was the same that had been signed by him; that he did not know that he had seen the defendant write, but he supposed he must have seen him write his name when he executed the bail bond ; that he was possessed of several pieces of writing, which he believed to be the hand-writing of the defendant, which he had received from him, in the course of his business, and one of which he produced. It purported to be an order for candles, and was signed with the defendant’s name. The witness said he believed this to be the defendant’s hand-writing, but that he had not seen him write it; that the candles had been delivered according to the order, but that he did not know that they had been paid for ; that the defendant had not acknowledged to him, that he had sent him such an order. Being asked whether he believed the signature to the note to be the handwriting of the defendant, he answered, that he could not determine, except from the writings before him; and that in his opinion, there was a similarity between them.

To prove the endorsement, the plaintiff called Robert Bach, who said that he had formerly been the plaintiff’s confidential clerk ; that the plaintiff and the endorser (who resided in London) had long been correspondents; that in the course of the plaintiff’s business, the plaintiff had received several letters from the endorser, which, of course, came to the hands of the witness; that he had never seen the endorser write, but that from his knowledge of the endorser’s handwri ting, acquired as above mentioned, he believed the signature endorsed, to be the hand-writing of the endorser; that the note in question, with the endorsement thereon, was received by the plaintiff, in a letter (directed to the plaintiff) from the endorser; which letter, the witness himself had received, and opened. The note was dated at London, the 2d day of April, 1792. It was proved by all the witnesses, that the defendant was an Englishman, and had arrived at New York about five or six years ago.

William Wayman, .who was produced, as witness, on the part of the defendant, declared that he had known the de

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fendant about eight or nine years had seen him write several times, and had dealings with him ; that he sometimes signed T. and other times “Thomas;” he believed himself to be competent to judge of the hand-writing of the defendant ; that he did not believe the signature to the note, was the hand-writing of the *defendant. Upon his cross-examination, he said he had seen the defendant write three times.

John Cunningham, another witness for the defendant, testified that he had known the defendant about five years, had been in habits of intimacy and business with him, and had seen him write frequently, and believed himself able to judge of the hand-writing of the defendant; and that he did not believe the signature to be the hand-writing of the defendant.

It was objected, by the counsel for the defendant, that testimony from the comparison of hands was improper, and inadmissible; that the evidence on the part of the plaintiff was insufficient to maintain his action, and that therefore, he ought to be nonsuited. The judge, however, ruled, that evidence from the comparison of hands was proper, and permitted the counsel for the plaintiff to show to the jury'papers signed by the defendant, and from them to judge of the similarity to the note.

The defendant’s counsel then produced fifteen or eighteen notes of hand, some of which it was admitted, were written wholly by the defendant, others of them, only signed or endorsed by him ; and with the consent of the plaintiff’s counsel, delivered them to the jury, under an agreement, that the jury should take the notes so delivered to them, the bail bond, and order, and also the note in question with them out of court; and should from all the evidence, so produced and delivered to them, make up their verdict.

The judge left it generally to the jury, to determine from all the circumstances, whether the signature on the note, was the signature of the defendant, with directions that if they were convinced it was so, they should find for the plaintiff.

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The jury found a verdict for the plaintiff.

A motion was made to set aside the verdict, which was argued by Munro, for the plaintiff, and Troup, for the defendant, who cited Stranger v. Searle, (1 Esp. Rep. *14.) Goodlittle v. Braham, (4 Term Rep. 497,) and Macferson v. Thoytes, (Peake’s Rep. 28.)

delivered the opinion of the court. The question, in this case, is as to the competency of the proof of the hand-writing of the defendant; and we are of opinion it was admissible. It is usual for witnesses to prove hand-writing, from previous knowledge of the hand, derived from having seen the person write, or from authentic papers, received in the course of business.(^[1] ) (Peake’s N. P. 21. 1 Esp. Cases, 15, 351, 352.) If the witness has no previous knowledge of the

a a (a) The State v. Allen, 1 Hawks’ R. 6. Lyon v. Lyman, 9 Conn. R. 55, 59, 60. Carey v. Pitt, Peake’s add. Cas. 130. Russell v. Coffin, 8 Pick R. 143. Hammond’s case, 2 Greenl. R. 33. Radford’s adm’r. v. Peggy, 6 Rand. 316 . Turnipseed v. Hawkins, 1 McCord, 278 , 279. Faber v. Hilliard, 2 N. Hamp. R. 480, 481, 482. Clark v. Wallace, 3 Penns. R. 441. Thatcher v. Goff, 1I Lou. R. (Curry,) 94. “ Hand-writing is well proved by a witness who has received letters from the party, in answer to letters written to him by the witness, though the witness has never done anything in consequence of the receipt of such letters. Doe v. Wallinger, cor. Holroyd, 3. Dorchester Spring Assizes, 1819, 2 Stark. Ev. 273, n. (h.) 6th Amer. ed. If letters are sent directed to a person on particular business, and an answer is received in due course, a fair inference arises that the answer was sent by the person in whose hand-writing it purports to be. Per Lord Kenyon in Carey v. Pitt, Peake’s add. Cas. 130. The like general doctrine prevails where’the witness, though he has seen no written correspondence of the party, is able to testify from other authentic papers, received or examined by him in the course of business; per Kent, J. in Titford v. Knott, 2 Johns. Cas. 214 ; Turnipseed v. Hawkins, 1 McCord, 278 ; Faber v. Hilliard, 2 N. Hamp. R. 481, 482 ; Thatcher v. Goff, 11 Lou. R. (Curry,) 94; e. g. notes purporting to have been signed by the alleged writer, and afterwards paid by him ; the payment of them being a full admission that he had made and signed them. Johnson v. Daverne, 19 Johns. 134 , 136. So, where the witness, an officer of a bank, stated that he knew the person’s hand-writing, from the circumstance of having his bank»book, and having seen his checks, which were received and paid in the ordinary course of business. Coffee’s case, 4 City Hall Rec. 52 ; S, C. Judic Repos. 293. In Virginia, a witness who had aoquired a knowledge of the hand-writing of a person, from an examination of his papers after his death, (the witness being his administrator,) was held competent to testify to his *214 liand-writing, in the court of probate, though the witness professed to have no knowledge save that so derived. Sharp v. Sharp, 2 Leigh, 249 . In Smith v. Sainshury, 5 Carr. & Payne, 196, it became necessary for the defendant to prove the hand-writing of Mary Smith, an attesting witness to an agreement, purporting to be signed by the plaintiff. The defendant’s attorney for this purpose testified, that he believed he was acquainted with her handwriting ; that he had never seen her write, but had observed the name of Mary Smith signed to an affidavit, which had been used by the plaintiff’s counsel, in answer to an application to postpone the cause, and which was filed. In the affidavit it was sworn, that Mary Smith was the plaintiff’s wife. This evidence being objected to, Park, J. held it sufficient; for, the plaintiff was precluded from alleging that the signature to the affidavit was not genuine. He distinguished it from the case of mere comparison of handwriting, inasmuch as the witness took notice of the signature, and, in his mind, formed an opinion, which enabled him to swear to his belief.” Cowen & Hill’s Notes to 1 Phil. Ev. 1324, 1325.

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hand, he cannot then be permited to decide it, in court, from a comparison of hands. (1 Esp. Cas. 14.)(^[2] )

To repel this proof, the defendant produced two witnesses, who severally swore, that they were acquainted with his hand-writing, and that the note in question was not signed with his hand. The defendants, also, produced several notes, admitted to be his, for the jury to judge, by comparison, and they were delivered to the judge, by consent. This consent takes away all objection to the admissibility of the notes, and we, therefore, decline giving any opinion, as to the legality of such testimony, without consent.

The plaintiff then proved the endorsement to the note by a confidential clerk, who testified, that the plaintiff and endorser (who resided in London) had long beea correspondents, and that their letters came into his hands; and although he had never seen the endorser write, he believed the endorsement to be his hand, from/the knowledge he had acquired from the correspondence.

This proof was undoubtedly admissible and competent; (Buller’s N. P. 236;) and there is no sufficient cause shown for disturbing the verdict.

Rule refused.(^[3] )

b b (b) “ Mr. Starkie, speaking as to the rule excluding mere comparison of hands, says, that perhaps after all, the most satisfactory reason for it is, that if such comparison were allowed, it would open the door to the admission of a great deal of collateral evidence, which might go to a very inconvenient length. For, in every case, it would be necessary to go into distinct evidence, to prove each specimen produced to be genuine ; and even in support of a particular specimen, (if the present rule were to be broken through,) evidence of comparison would be receivable in order to establish the specimen, and so the evidence might branch out to an indefinite extent. 2 Stark. Ev. 375, 6th Am. ed. “ By comparison, is now meant, an actual comparison of two writings with each other, in order to ascertain whether both were written by the same person ; though formerly, even comparing the standard formed in the witness’ mind with the writing in dispute, was called evidence by comparison : and hence, was deemed inadmissible, at least in criminal eases. 2 Stark. Ev. 373, 374, 6th Am. ed. “ The English courts have consistently followed the rule, excluding evidence founded upon a mere comparison of hands by witnesses. See an elaborate note, exhibiting most of the earlier English cases, 4 Esp. Rep. 273, a, Day’s ed. A witness cannot have two writings placed in his hands, and then be asked, whether, in his belief, both were not written by the same person. Clermont v. Tullidge, 4 Carr. & Payne, 1. See also Mutchinson v. Allcock, 1 Dowl. & Ryl. 165 ; Greaves v. Hunter, 2 Carr. & Payne, 477. On information for a riot, a letter from the prosecutor was offered by the defendant, and admitted to be genuine. Then a lost letter was proposed to be proved by a witness, who never saw the prosecutor write, but would swear it was in the same hand with the letter produced ; this was rejected because he had never seen the party write. The King v. Sir T. Culpepper, Skin. 673.” Cowen & Hill’s Notes to 1 Phil. Ev. 1326. “ The doctrine excluding comparison of hands by witnesses, was recognized by the Supreme Court of the United States, in Strother v. Lucas, 7 Peters’ R. 763. ‘ It is a general rule,’ said Thompson, C. J., delivering the opinion in that case, ‘ that evidence by comparison of hands is not admissible, where the witness has had no previous knowledge of the hand-writing, but is called upon to testify merely from a comparison of hands.’ Id. 767.” The same doctrine has been recognized in New York, Jackson ex dem. Van Duzen v. Van Duzen, 5 Johns. R. 155. See Jackson ex dem. Woodruff v. Cody, 9 Cowen, 140 ; Haskins v. Stuyvesant, Auth. N. P. 97 ; Jackson v. Phillips, 9 Cowen, 94; Wilson v. Kirkland, 5 Hill, 182 ; Olmstead v. Stewart, 13 Johns. R. 238. New Jersey, Goldsmith v. Bane, 3 Halst. 87. Virginia, Rowts’ adm’x. v. Kiles’ adm’r. 1 Leigh, 216 . See Gardner’s adm’r. v. Vidal, 6 Rand. 106 ; Redford’s adm’r. v. Peggy, id. 316 ; Sharp v. Sharp, 2 Leigh, 249 ; and Kentucky, Woodward v. Spiller, 1 Dana R. 179, 181. The whole subject is elaborately considered in Cowen & Hill’s Notes to 1 Phiil. Ev. 1324-1332, and ail the principal cases are cited and commented on.

c c (c) See Peake’s Law of Ev. 2d ed. 103, 107.