Johnson v. Daverne

Spencer, Ch. J. delivered the opinion of the Court. To prove a party’s signature, it is not indispensably necessary that the witness should have seen him write. Phillips (367.) gives the true rule : “ The admissibility of the evi [136] dence must depend upon whether there is good reason to believe, that the specimens, from which the witness has derived his knowledge, were written by the supposed writer of the paper in question.” In Titford v. Knott, (2 Johns. Cases, 214.) it was held, that the signature of the endorser was well proved by a person who had been in the habit of seeing his correspondence, and, from that circumstance, believed the signature to be his. The witness in this case had received the plaintiff’s notes, all of which, except one, had been paid; the payment of the notes, with his signature to them, unexplained, was a full admission, that he had made and subscribed them. If, then, the witness had sufficiently observed, to ascertain the distinctive and prevailing character of the handwriting, he was in a situation to identify the plaintiff’s signature, and he ought to have been asked, if he believed the plaintiff’s name to the receipts to be his handwriting; if he had answered that question affirmatively, then the receipts should have been received in evidence. The questions to the attorney and counsel were not pushed far enough. If he knew nothing but what his client had communicated to him, he could not be compelled to disclose that; but if he became acquainted with his client’s signature, in any other manner, though it was subsequent to his retainer, he was bound to answer; for an attorney and counsel may be questioned, as to a collateral fact within his knowledge, or as to a fact which he may know, without being entrusted with it as an attorney in the cause. (Brant v. Kline, 17 Johns. Rep. 338. 4 Term Rep. 431.) There must be a new trial; the costs to abide the event of the suit. New trial granted.