Plicque v. Labranche

9 La. 559 | La. | 1836

Martin, J.,

delivered the opinion of the court.

This is an action on a promissory note. The defendant, Labranche, being sued as endorser of a promissory note, together with Antoine Foricher, senior, pleaded separately and specially, that the endorsement of his name on the back . of the note, was forged and counterfeited.

Evidence of the acknowledge ment or a party, who is sought to renamed liable1, is the weakest species of evidence ; for the witness who testifies, cannot he juvy'ifheswears falsely, and is the'^powe?°of contradiction. It a parly deny his signature to hisimmeniriVaof writing, or ai-lege it is counterfeited,itmust witnesses^ who have seen him sign the act, or know his signa-frequenflyhaseen h™ experts^^or comparison of may^aiso^bere-emveci. . nesses! o? 'the of aSgnatlreby the party who is sought to be mísfbíe.^wheñ Jfe^diegos * is counterfeited.

On the trial of the case before a jury, evidence to prove the acknowledgment of the defendant, that the endorsement was in his handwriting, was offered, and to which his counsel objected. It was,'however, admitted by the court, and a bill of exception taken.

The district judge who presided at the trial, was of opinion that the ^ acknowledgment of the party, in relation to the genuineness of his signature, is in the nature of evidence, going to prove the truth of this fact, and should be admitted as such. But in case the party is surprised, he has reserved him t.lne privilege, and informs him he must seek his , 1 ° , remedy m an application for a new trial.

R appears to this court that the district judge erred in his decision.

In ordinary cases, the acknowledgment of the party is indeed, in the nature of evidence of the truth of the signature. ®ut R i® ^Ie v?ry weakest, species of evidence that may be adduced. The witness who testifies, to the acknowledgment, is placed beyond all danger of being convicted of perjury, an¿ js almost impossible to contradict him. 1

. When, therefore, a signature is specially denied by the party to whom it is imputed, that weak species of evidence, 0f h¡s acknowledgment or admissions, is not allowed.

P The law has expressly provided the kind of evidence which may be produced to counterbalance the express denial of a sjprnature, to an obligation or act under private signature. ° 7 ° i o

If the demand is founded on an instrument of. writing, under private signature, the party, is bound to acknowledge exPressty>or to deny his signature. Code of Practice, art. 324.

But if the‘defendant deny or contend that his signature is counterfeited, its genuineness must be proved by witnesses who have seen him,sign the' act or obligation, or who declare that they know his signature from having frequently seen W1'ite- Proof also by comparison of handwriting, or by experts, is admissible. Ibid., article 325.

S25 Oni)o"coc!e ¿[^and s¿pe°-sedes the provi-hUma Code, ar-proof of a signature moTheTcases.85

The foregoing provisions of our law, repel the idea that the signature of the defendant may be proved by witnesses, who only testify to his acknowledgment of such signature.

The article 325 of the Code of Practice, already cited, modifies and supersedes the provision in the Louisiana Code, article" 2241, which declares, that if the party disavows his signature, it must be proved by witnesses, as in other cases.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; the verdict set aside, and the case, remanded for further proceedings, with directions to the District Court, not to allow proof by a witness, of the acknowledgment by the defendant of his signature, on the back of the note sued on ; the plaintiffs and appellees paying the costs in this court.