Smith v. Walton ex rel. Walton, 8 Gill 77

Smith v. Walton ex rel. Walton

8 Gill 77 | Md. | 1849

Martin, J.,

delivered the opinion of this court.

This was an action of debt instituted in Saint Mary's county court, by the appellee against the appellant, upon a single bill, to which the appellant pleaded non est factum.

It appears from the record, that at the trial of the issue joined upon this plea, the plaintiff offered to prove, by George W. Morgan, that in 1843, he had witnessed the signature of the defendant to a receipt which he had seen him sign; that the signature f.o that receipt very much resembled the signature to the cause of action, and that from that resemblance, and his knowledge of the character of the handwriting of the defendant, derived from that signature to said receipt, he believed the signature to the cause of action to be the signature of the defendant. Upon cross-examination, the witness further proved that he had never seen the defendant write his signature, except to that receipt; that he had no recollection of the character of the signature to that receipt, except from a subsequent examination of it in October, and that about one week after said examination of the receipt, he saw the single bill in dispute, and from his recollection of the signature to the receipt, he believed the signature to the single bill to be genuine; that he had also since compared the signatures to the receipts and single hill, by placing them side by side, and that ho is still more *82thoroughly convinced that the signature to the single bill is genuine. He further proved, that the said receipt has been in the possession of the plaintiff, and that he has never seen it, except in October, and at the present term of the court.

The introduction of this testimony, to prove the signature of the defendant to the cause of action in dispute, was resisted by his counsel. The objection was overruled, and the testimony permitted to.go to the jury; and whether there was error in this opinion of the court below, is the question presented for our consideration by the first exception.

We think the decision of the court below, upon the point raised by this exception, was correct. It is true that the witness who was called to prove that the signature to the single bill was defendant’s handwriting, had seen him write only on one occasion. But since the case of Garrells vs. Alexander, decided by Lord Kenyon, in 1801, 4 Esp. Rep., 37, and recognised in the King’s bench in 1836, in the case of Doe vs. Suckermore, 5 Adolp. and Ellis, 703, it has been regarded as an established rule of evidence, that a witness who has seen a party write, although but once, and has in this mode acquired a knowledge of the general character of his handwriting, is competent to testify with respect to its genuineness. The impression made upon the mind of a witness who has seen the defendant write his name only in a single instance, may be exceedingly faint and imperfect, but it is, nevertheless, testimony, provided the witness can declare, as he has done in the present case, that from his knowledge of the character of the defendant’s handwriting, thus acquired, he believes it to be genuine. A witness who has seen a party write, or who has corresponded with him, is qualified to speak with respect to the genuineness of his signature. The question, so far as it relates to the competency of the witness, must depend, not upon the quantity of his information, but the source from whence it is derived. This evidence, like all evidence founded on probability, varies in every conceivable degree, from the highest to the lowest order of presumptive proof. It is, therefore, a proper subject for the consideration of a jury, who must determine *83what influence and weight is to be given, under all the circumstances of the case, to the opinion of a witness who places his belief upon a single instance.

It was the observation of a learned judge, who delivered his opinion in the case of Doe vs. Suckermore, already adverted to, “that proof of handwriting, from the highest degree of certainty, carrying with it perfect assurance and conviction, to the lowest degree of probability, may be and is constantly submitted to the jury. From continued and habitual inspection or correspondence, or both, carried on till the trial itself, down to a single instance, or knowledge twenty years old, may be received.” He alluded, lie said, to the case of Garrells vs. Alexander, 4 Esp. Rep., 37, where the execution of a bail bond was held by Lord Kenyon, to furnish means of knowledge. That the authority of that case was, indeed, questioned by Lord Eldon, upon another point, because the witness could not go so far as to express any belief, but as to the competency of a witness founding himself upon a single instance, we have the prevailing and important, testimony of Lord Eldon, in Eagleton vs. Kingston, 8 Ves., 473.

This rule of evidence was acknowledged by Lord Ellenborough, in Powell vs. Ford, 2 Stark Cases, 164. The witness in that case was rejected as incompetent, solely upon the ground that he had seen the party, whose signature was in dispute, write only his surname, but not his Christian name. A distinction properly repudiated by Chief Justice Abbott, in Lewis vs. Sapio, 1 Moody and Malkin, 39. After proof that the surname was in the handwriting of the party, the jury might fairly conclude, if they believed it, that the whole signature was genuine. It would, indeed, be an extravagant presumption to infer that some counterfeit hand had written the Christian name.

The court were correct, we think, in rejecting the prayer presented by the defendant in the third exception. We understand the witness, J. B. Kirk, introduced by the plaintiff, for the purpose of proving that the defendant’s signature to the single bill was written by him, as stating that although from *84his knowledge of the general character of the defendant’s handwriting he believed the signature of the surname to be genuine, he could not say so as to the Christian name, and could not, therefore, prove the whole signature; and assuming this to be the true construction of his testimony, it would be admissible, if standing alone, as conducing to establish the matter in contestation upon the authority of the case of Lewis vs. Sapio, decided at Nisi Prius, by Chief Justice Abbott, in 1827, 1 Moody and M., 39, to which we have already referred. And its admissibility must be considered as placed beyond all controversy, when it is recollected that this proof was offered not as the sole evidence in the cause, but in connection with the testimony of George W. Morgan, who proved, that, in his opinion, the whole signature was genuine.

The counsel for the appellant has also contended, that this testimony was improperly received, because it was incumbent on the plaintiff to have established, as a preliminary fact, that his witness had acquired a knowledge of the handwriting of the defendant, by having seen him write, or in some other recognised and legitimate mode, before he was permitted to testify, from such knowledge, to the genuineness of the signature. But we think that the testimony is not now open to this objection. ' No such question was raised at the trial below, when the court was asked to reject the evidence “as legally insufficient to support the issues in the cause.'” No attempt was made by the defendant, in his cross-examination of this witness, to explore the sources of his information, with respect to the handwriting in reference to which he was called upon to testify; and that the witness possessed that kind of knowledge which authorised him to speak of the genuineness of the defendant’s signature, 'so far as his surname was concerned, is to be considered as a fact, conceded both by the nature of the questions propounded to him, on cross-examination, and by the character of the prayer addressed to the court, for their instruction to the jury. . Whittier vs. Gould, 8 Watts, 485.

There was error, we think, in the ruling of the court upon the point of evidence raised for their decision in the fourth ex*85ception. It appears from this exception, that the plaintiff exhibited to ./. B. Kirk, the witness before produced by him, for the purpose of refreshing his memory, a draft purporting to be drawn by the defendant, in favor of the witness, dated the 20th of March, 1844, and which the witness proved was signed by the defendant, in his presence. This course of examination was perfectly legitimate, and if the witness, after having thus re-touched and strengthened his recollection of the defendant’s handwriting, by inspecting the draft, had stated that he believed the disputed signature to be genuine, as the result of a comparison between that signature and the impression he had formed in his mind as to the general character of the defendant’s writing, derived from antecedent knowledge, no legal exception could have been taken to the testimony.

But this is not the character of the evidence resisted by the appellant, and received by the court. We are informed, by the bill of exception, that after the witness had inspected the draft, the counsel for the plaintiff handed to him the cause of action upon which the suit was instituted, and asked him to compare the two signatures, which the witness did; that the counsel then asked him whether, from comparing the two signatures, he did not believe the signature to the single bill to be genuine? To which the witness answered, that from comparing the tioo signatures, he believed the signature to the single bill to be genuine. And it is perfectly manifest, looking alone to the facts disclosed by this exception, that the opinion expressed by the witness, with respect to the genuineness of the signature to the cause of action, was not derived in any degree from his antecedent knowledge of the defendant’s autograph, but was exclusively founded upon the supposed similarity between the single bill in contest, and the draft of the 20th of March, 1844; the two papers being placed, at that time, before him in juxta-position, that he might compare them in order to ascertain, from inspection, whether both were written by the same person. This we consider to be the true construction of the evidence contained in the fourth exception, and assuming this construction to be correct, the testimony was clearly inad*86missible as an attempt to prove the genuineness of the disputed signature, by the opinion of a witness who founded his belief upon a mere naked' comparison of the two papers submitted for his examination. It appears from the evidence, as set forth in the exception, that the witness, in answer to a question proposed to him by the counsel of the plaintiff, stated, that from comparing the two signatures, he believed the signature to the single bill tobe genuine; and although the witness had some previous acquaintance with the general character of the defendant’s writing, yet as the belief he expressed with respect to the genuineness of the signature to the single bill, was not derived from that antecedent knowledge, but was founded upon a supposed similarity between the two signatures before him, he stood precisely in the predicament of a witness who, without ever having seen a party write, is required to testify to the authenticity of his signature bjr a mere comparison of hands. That evidence of this description is not admissible for the purpose of proving handwriting, is a rule of law now too firmly established to be disturbed. Much has been written and said to show that comparison of hands is, as a mode of proof, better calculated to elicit truth, than the belief of a witness, founded, as it necessarily is, upon a comparison of the controverted signature with some image or impression which he has. received into his mind, from having observed a party write more or less frequently. Upon this ground, testimony of this character has been admitted as competent to establish handwriting by the adjudications of some of the American courts. This is in conflict with the doctrine of the common law, as enunciated in Westminister hall. We consider it as the settled rule of the English law, which in this respect we approve and adopt, that with the exception of ancient documents, an exception standing upon the necessity of the case, signatures cannot be proved by a direct comparison of hands. By which it is meant the collation of two papers in juxta-position, for the purpose of ascertaining, by inspection, if they were written by the same person.

In the case of Doe vs. Suckermore, it was remarked, by *87Mr. Justice Coleridge: “ That our law has not, during a long course of years, permitted handwriting to be proved by the immediate comparison, by a witness, of the paper in dispute with some other specimen proved to have been written by the supposed writer of the first. He said it was familiar to lawyers that many attempts have been made to introduce this mode of proof according to the practice of the civil and ecclesiastical laws, but that after some uncertainty of decision, the attempts have failed.” The court were clearly right in rejecting the prayer offered by the defendant in the second exception, and that exception has been properly abandoned. We, therefore, affirm the opinions of the court below, as expressed in the first, second and third exceptions, and reverse the opinion expressed in the fourth exception.

JUDGMENT REVERSED, AND

PROCEDENDO AWARDED.