Foster v. Jenkins & Belt

By the Court. Stephens, J., delivering the opinion. J. The Judge granted a new trial in this case upon the ground that he had improperly admitted in evidence the deposition of Mr. George Cuyler, Cashier of the Central Rail [478] Road Bank. His testimony does not express a belief existing at the time when his answers were given, that the signatures were genuine; but he says that if the notes had been presented to him at bank, he thinks he would have paid them. The fair construction of this is, that he would have paid them if they liad been presented without any notice that their genuineness was contested. Would he have paid them with notice of such a contest? He does not say, and that is the fatal omission in his statement. I was inclined to the opinion that his statement, as it stands, ought to have gone to the jury for what it was worth; but my .colleagues insisted upon a stricter rule, and I do not know but that theirs is the better opinion. Proof of hand-writing is, in its nature, the identification of an acquaintance, and the lineaments"' should be strong enough to enable the witness to pronounce in favor of the identity, against all the opposing circumstances. If his opinion does not come up to this standard, can he be said to have an opinion at all? He might or would think the writing to be his old acquaintance’s under certain circumstances, but the question is, does he think so, under the circumstances as they exist when he is giving his opinion ? The strength of this view is, that while the witness may have a strong or a feeble opinion, yet, he must express what amounts to an opinion one way or the other, else he furnishes nothing which can enlighten the jury. It is worthy of remark, that a large portion of the evidence on either side in this case, fails to come up to this standard. 2. But we are asked to affirm the verdict in this case by reversing the judgment granting a new trial, upon the ground that the evidence in support of it (aside from Cuyler’s testimony( is so strong that a different verdict could not stand, and that it is but useless delay and expense to have a new hearing which could produce no different final result. The ground is a good one, if it were applicable to the case, but we cannot say, in the conflict of evidence which we have here, that a different verdict could not stand. J udgment affirmed.