National Bank v. Armstrong

Miller, J., delivered the opinion of the Court. This action was brought by the Bank, as payee, against Armstrong as endorser of a promissory note for $1400, and the defence was forgery. The case was tried upon issue joined on the plea of non assumpsit, and at the trial two exceptions were taken by the plaintiff to the rulings of the Court. As these rulings were the same in each exception, only one of them need be stated, and it is substantially as follows: After the plaintiff had proved by several witnesses acquainted with defendant’s hand-writing, that in their opinion the disputed signature was genuine, the defendant himself testified that it was a forgery, and that he had never endorsed such a note.

He then proved by a witness who had frequently seen the defendant write, and was familiar with his signature that in his opinion this endorsement was not in defendant’s genuine hand-writing. On cross-examination the witness said that this opinion was based upon the fact that the defendant’s hand-writing was heavier and larger than the endorsement of his name on the note sued on. The plaintiff’s counsel then, for the purpose of refreshing the witness’ memory, and for no other purpose as they announced to the Court, exhibited to the witness a letter which had previously, during his examination been shown to the defendant, and which he admitted to be in his genuine hand-writing both in the body and signature, (but which had been written upon a subject foreign to this case, and the contents of which would not have been admissible, and were not admitted upon any issue joined in this action,) and proposed to ask the witness to examine this letter, and then say whether he still retained the opinion expressed in his examination-in- ¹¹⁶ chief, viz., that the defendant’s name endorsed on the note in suit was not in his genuine hand-writing. But the defendant objected and the Court sustained the objection, and refused to allow the witness to examine the letter or the proposed question to be put to him, and to this ruling and action of the Court the plaintiffs excepted.

In the other exception the same question was asked of another witness and the same ruling made. To have allowed these witnesses to examine this letter for the purpose of refreshing their memories as to the defendant’s hand-writing, and then say whether they were still of opinion the disputed signature was not genuine, would in no wise have infringed the rule which is well settled in this State against proof of hand-writing by comparison of hands. It is not the case of placing the disputed signature and a genuine writing before a witness who had no antecedent knowledge on the subject, and allowing him from the mere inspection of the two to say whether in his opinion they were both written by the same person. These witnesses both testified that they had frequently seen the defendant write and were familiar with his signature, and by reason of their knowledge of his hand-writing jthus acquired were competent and qualified to testify as to the genuineness vel non oí this endorsement.

Speaking from that knowledge they said in their examination-in-chief that in their opinion it was not genuine. Then on cross-examination after having given as a reason for .their opinion that the defendant wrote a heavier and larger hand, the cross-examining counsel for the purpose of refreshing their memories as to the character of his hand-writing, exhibited to the witnesses a letter and signature which the defendant himself admitted he had written, asked them to examine it and then to say whether they were still of the same opinion. We see no objection whatever to this course of cross-examination, and are clearly of opinion it should have been allowed. ¹¹⁷ In Smith vs. Walton, 8 Gill, 77 , where non est factum was pleaded to a single bill, one of the witnesses called by the plaintiff to prove the defendant’s signature, testified that although from his knowledge of the general charactér of the defendant’s hand-writing, he believed the signature of the surname to he genuine, he could not say so as to the Christian name, and could not therefore prove the whole signature. The plaintiff’s counsel then for the purpose of refreshing his memory exhibited to the witness a draft purporting to he drawn by the defendant in favor of the witness, and which the witness proved was signed by the defendant in his presence, and the Court said : “This course of examination was perfectly legitimate, and if the witness after having thus re-touched and strengthened his recollection of the defendant’s hand-writing 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.” We are unable to perceive any substantial difference between what was held a legitimate course of examination in that case, and what the Court below by the rulings complained of refused to allow in this.

But it is said that conceding there was error in these rulings, the plaintiff has sustained