Phœnix Fire Insurance v. Philip

By the Court, Savage, Ch. J. Witnesses skilled in handwriting have been received to prove whether, in their opinion, certain instruments were written in a natural or an imitated character, and of course to prove whether they were genuine or forged. This species of evidence differs very little, if at all, from proof of comparison of hand-writing, which is inadmissible. The comparison of hands which is inadmissible,is that arising from the juxta-position of two writings, in order to ascertain whether both were written by the same person—and this is not admitted; but the witness is permitted to give his [83] opinion whether the paper produced is written in a natural character, and therefore genuine. In both cases the witness is supposed to have no knowledge of the hand-writing of the person whose signature is to be proved; he cannot form his opinion from comparing the signature in question with one admitted to be genuine, but he may form his opinoin without any thing to inspect but the signature to be proved. If the latter is stronger evidence than the former, I have never been able to perceive it. They are neither to be relied on with much confidence. The danger of relying on witnesses of skill in hand-writing was verystrongly presented to this court inthecase of Poucher v. Livingston, decided three or four years ago. In that case gentlemen of the first respectability, and as well qualified as any in community, made great mistakes. The question before the jury was the genuineness of a signature to a promissory note. A number of signatures were presented—some true and some false; some of the false were selected as genuine, and some of the true signatures were considered spurious. In that case a great effort was made with this kind of testimony, and the result proved that in that instanceitwas utterly worthless. In Goodtitle, ex dem. Renett, v. Braham, 4 T. R. 497, Lord Kenyon admitted clerks from the post-office, whose duty it was to inspect franks, to give their opinion whether the signature to a will was genuine or a forgery, by stating whether it was written in a natural or an imitated hand. They swore it was imitated; but, on being shown other signatures of the testatrix, known to be genuine, one of them was declared by one of the witnesses to be genuine, and by the other to be imitated. In a subsequent case of Cary v. Pitt, before the same learned judge, similar evidence was offered by a clerk in the post-office. Lord Kenyon said it could not be received ; that though such evidence had been received in Renett v. Braham. he had, in his charge to the jury, laid no stress upon it. Peake’s Ev. app. 176. In the case of Gurney v. Langlands, 5 Barn, & Ald. 330, this question was put: “ From your knowledge of hand-writing, do you believe the hand-writing in question to be a genuine signature, or an imitation 1” The question was objected to and rejected. On a motion for a new trial, Abbot, Ch. J. [84] said that he had long been of opinion that evidence of this description, whether in strictness receivable or not, ought, if received, to have no great weight given to it. Bayley concur-re(j Holroyd had great doubt whether this was legal evidence, but was clear that it was entitled to no weight. Best, J. said, “ It is impossible for any person to speak to handwriting being an imitation, unless he has seen the original— a new trial was denied. These cases do not decide the question now before the court, but are somewhat analogous. The question nowbefore the court andjury was,whether the accounts of stock were made bona fide at the times they purport to bear date. It was not doubted but they were in the handwriting of the plaintiff, but simply whether they were written at the times when they bore date. The books were before the court and jury; the opinions of witnesses were worth no more than the individual opinions of the jurors themselves, and would be very loose testimony upon which to convict a man of fraud and false swearing. The evidence offered as to the amount of stock in the plaintiff’s shop was equally loose and unsatisfactory. It was the mere opinion of others that other dealers in the same articles had much less stock, and hence the jury were to infer that the plaintiff had been guilty of a fraud. Fraud is not to be proved by surmises or suspicions. I think the superior court decided correctly, and their judgment should be affirmed. Judgment affirmed.