Hyde v. Woolfolk

WoouwARD, J.- Tbe facts of tbe case leading to tbe questions wbicb arise, are as follows: By a writing, dated tbe 12tb of August, 1851, signed by Hyde and Woolfolk, Woolfolk agrees to erect a barn 'for Hyde, by tbe 1st of May, 1852, and Hyde agrees to furnisb all tbe materials for tbe barn, board Woolfolk and bis bands, while engaged in tbe work, and to pay bim “ tbe sum of one hundred and twenty-five dollars, in manner following, to wit: one gray horse, valued at eighty-five dollars, and tbe balance in good cash notes.” On tbe same 12th of August, 1851, Woolfolk, and Bacon, as bis surety, executes and delivers to Hyde a penal obligation, with a condition as follows: “ Whereas tbe above bounden Hiram J. Woolfolk, has this day contracted with tbe said Charles J. Hyde, to build for bim, on bis farm (in, &c.,) a barn, wbicb barn is to be finished according to a written Contract '(marked A.), by tbe 1st day of May, A» D. 1852» — 161 — Now, should, the said Hiram J. Woolfolk, well and truly perforip. bis contract as specified in said contract, then this obligation to be void; otherwise, to remain in full'force and virtue inlaw. Witness,” &c., signed by Woolfolk andBacon. The action is brought upon this bond, agginst Woolfolk and Bacon, the plaintiff alleging, that he has performed all his covenants and agreements, in said contract specified, but that said Woolfolk has neglected ahd refused to perform his agreement or any part thereof, and still does wholly neglect and refuse soto do,”. &c. Woolfolk makes default. Bacon answers, alleging: First. That he did not undertake or promise in manner and form, &c. Second. That he did not sign the bond in the petition mentioned, and avers that his namb - affixed thereto was done without his knowledge, privity, or 'consent. And he adds other defences not material, in the view which we take of the case; also an affidavit of denial under the statute — to the sufficiency of which, objection is now made, on argument, for the first time, so far as appears. As this objection was not made below, we pass it. The trial took place on the 7th of January, 1854, and the jury returned a verdict for the defendant Bacon, and the court rendered judgment accordingly. A bill of exceptions was taken, and the cause brought to this court. The first error assigned, is, that the court erred in admitting the mortgage in evidence as shown by the bill of exceptions. It appears, by the bill of exceptions, that Bacon, in order, by comparison, of handwriting, to sustain his denial of the signature of the bond, in which he purported to be surety, offered in evidence a mortgage deed, purporting to be signed by him, and dated. 8th of October, 1842, by which he conveyed in mortgage to one John B. Bacon, a tract of land, situate in the county of McDonough, state of Illinois, and to which deed is affixed the following certificate of acknowledgment: “ State of Illinois, ) gg McDonough county, j This day personally came before me, the undersigned, — 162 — clerk of tbe Circuit Court, in and for tbe county of McDon-ougb, and state of Illinois, tbe witbin named grantor, James H. Bacon, wbo is personally known to me to be tbe identical person whose name is subscribed to tbe witbin and foregoing mortgage, to tbe said John B. Bacon, administrator of tbe estate of C. W. Bacon, deceased, as having executed tbe same, and acknowledged that be bad made and executed tbe same to tbe said J. B. Bacon, administrator, &c., for tbe purposes and conditions therein mentioned. In testimony whereof, I have hereunto set my band, and affixed tbe seal of tbe said Circuit Court, at my office in Macomb, this eighth day of October, A. D. 1842. [l.s.] James W. Campbell, Cleric, 1 By J. H. Baker, Deputy.” j This instrument did not purport to be recorded. The defendant claimed that tbe mortgage deed proved its own genuineness, and tbe genuineness of tbe signature. Tbe plaintiff objected to its admissibility as evidence, for this purpose, but tbe court overruled tbe objection, and admitted tbe instrument. . In this we think tbe court erred. Tbe whole question stands on section 2404 of .the Code, which is, that “evidence respecting handwriting, may be given by comparison made by experts, or by tbe jury, with writings of tbe same person, which are proved to be genuine.” Tbe standard writing must be proved to be genuine. Tbe very idea of proving bandwriting by comparison, implies of necessity, tbe establishment of tbe genuineness of tbe standard. Tbe court is not prepared to adopt tbe suggestion, that the standard writing may be proved by witnesses wbo have only seen tbe party write, for this is, in effect, fixing the standard by comparison; it is supporting a probability by a probability. Two obvious methods of proving tbe standard writing, are; first, by tbe testimony of a witness or witnesses wbo saw tbe party write it; and secondly, by tbe party’s admission, when not offered by himself. We do not mean to say, that these are tbe only methods, but only that tbe proof must be positive. — 163 — Let us look at some provisions of tbe statute wbicb are •said, to bear upon this question. Section 1227, of tbe Code, provides, that “ every instrument in writing, affecting real estate, wbicb is acknowledged or proved, and certified as hereinbefore directed, may be read in evidence without further proof.” May be read in evidence, of what? Of •everything, or of anything, a party sets up? We think it is manifestly intended, of the contract, conveyance, or matter •contained in it; and 'then, probably, not in all cases, and between all persons. But is not such instrument evidence of the genuineness of tbe signature of the party? We think not. And two .principal reasons present themselves to sustain that conclusion. Eirst; by section 1228, of the Code, the record, or a ■copy of it, may be admitted in evidence, instead of the original; and secondly, a party may execute an instrument by the hands of another, and this is sometimes done; and when he adopts the act, the instrument is his — the execution of it is his, in the legal sense. What are the terms of the statute in relation to acknowledgments ? Section 1219 of the Code, ■directs the officer to certify “ that such person acknowledged the instrument to be his voluntary act and deed.” He does not acknowledge the signature genuine ; but if another actually used the pen, he adopts the signature. We are not inclined to place emphasis upon precise words, but it may be proper to refer to the second division of the same section, directing the officer to certify him to be the identical person, whose name is-affixed to the deed, indicating that it is not necessary to certify to'-the genuineness of the signature. It is further claimed, that this instrument was admissible under section 2407 of the Code. It may be doubted whether this section would apply to such an instrument as the one in question, inasmuch as section 1227 is a provision specially relating to such instruments, and section 2407 seems designed to bring other papers within the same rule. But it is not necessary to determine this, for if it is applicable to conveyances, still the remarks before made upon the execution -and acknowledgment of the deed in question, would — 164 — be applicable. By sucb evidence,, a party might disprove a genuine signature. In construing and applying the letter of the statute, we must look at the subject matter, the object and intent, and by so doing,- we may lessen or obviate a difficulty. It does not seem difficult to do this, in the case before us. In 4 Phil, on Ev. (Cow. & Hill’s notes), 478 to 492, is a collection of, probably, all the cases on the subject of evidence by comparison of handwriting. These show conñieting decisions- and different views. In truth, this is one of those subjects which have not sprung into existence at once, in full maturity; but has become perfected through the experience and reflection of many minds. Some decisions have been at Nisi Prius, and therefore, probably, without due thought. Some seem to haye been made without argument, and some, perhaps, hastily, which should have received more attention. For instance, it has been held, that the standard writing might be proved by witnesses who have seen the party write, that is, in the ordinary manner, whilst it would seem very manifest that that is not the way to fix a standard. That mode of proof does not help the matter. You do not advance any in this manner. You want something more certain than the proposed writing to compare the latter with. Again, an ordinary witness has been permitted to compare the two writings, and express his opinion, whilst this is just what it is the duty of the jury to do. It is their opinion on this matter, which is wanted, or at least, is necessarily involved in their verdict. No one can be permitted to take it away from them, and none but an expert, can be allowed to assist them. Our statute appears to mean, that the jury alone may make this comparison, or they may have the aid of experts; and it is aid only, for if the jury must take the opinion of the experts, then the latter try the case; and further, if the expert differ, who decides between them ? Another singular opinion has been, that the standard writing must be one used in, and connected with, the case.. But how can this be held necessary, when we look at the object of the standard. It is of no consequence, what the writing with which you compare, is; all you want is a — 165 — genuine band writing; and it is, as respects tbe nature of tbe evidence, not material wbat instrument it is; nor wbetber tbe paper be blank in all except tbe signature; nor wbetber tbe writing be connected witb tbe case or not. Tbe object is only to' prove, that tbe party wrote a certain signature or writing, by showing its similarity to another proved to be genuine, and this evidence seems to be superior in degree (though tbe same in kind), to tbe testimony of a witness who has only seen tbe party write, and that, it may be, but once or twice, or has received a few letters from him. In all these cases, it is comparison only; but in tbe one case, you ■ have tbe standard present before tbe eye, and tbe opinion of tbe twelve jurors, instead of tbe one or two witnesses. Before leaving this part of tbe case, a word must be said •upon a party offering to disprove bis own writing, by bis own. This opinion is not designed to express any views upon this branch of tbe subject of evidence by comparison. Tbe ■cause before us, is brought here without any objection on that score, and only to test tbe admissibility of tbe deed as a standard. Under wbat restrictions, a party may offer bis own writing, is a subject for future consideration. Tbe second and third errors assigned, relate to tbe admission of Sample and Box to testify as experts. Although tbe previous question would dispose of tbe case in this court, yet, as this second question may arise again, in tbe same or any other cause, we consider it. Tbe question is as to tbe competency of these witnesses as experts, and, therefore, it is necessary to set out tbe substance of their testimony, bearing on their admissibility. E. Sample, being sworn as a witness, testified that “be was not an expert in tbe business of comparing bandwriting; that be bad never made it a business to compare or detect feigned or forged writings; that in early life be bad been a clerk in a store, afterward an editor of a newspaper, and for tbe last fifteen years a lawyer, but not all tbe time engaged in practice; that be presumed be bad some skill in comparing handwritings; that be bad, /during bis life, bad occasion to examine a good deal of writing, but did not pretend to any extra skill over business — 166 — men, but thought he was as good a judge as business mem generally; and that he had been in the habit of examining-bank bills for the purpose of testing their genuineness.” Box», being affirmed,, testified that he was a merchant; had been in the business about three years; had had occasion to examine to detect counterfeit bank paper; possessed some knowledge of handwriting; did not claim to be an expert; had only the ordinary knowledge of a person in his business and of his age; and that he was in the habit of examining and handling bank bills.” The introduction of these persons as witnesses, was objected to, upon the ground that they were not experts, competent to testify as experts. The objéetion was overruled, and the witnesses permitted to testify. It is now, again, objected, that to be admitted as experts, they should possess the highest skill or information on the subject in question; must have studied or pursued the science, trade or art to which the subject belongs. It is true that persons giving evidence on a matter pertaining to their particular science,,, trade or art, come more strictly and technically under the term “experts;” but we cannot consent to the proposition-,, that no others come within it, and are allowed to be witnesses, in any case. It may very probably be true, that none are to be taken as experts on matters pertaining to a particular calling, art or science, but those who are, or havo been, practiced in such art or science. But there are many subjects of inquiry which do not belong to a particular -art,, &c., but on which a greater or less degree of knowledge is. common to many men in different callings. Take the instance of bank bills. On these, the best expert would be a counterfeiter, and the next best, men employed in banks,, or, perhaps, engravers; and then, the business men of the-community. Now, the law does not require the testimony of the best of these, before the others can be admitted. The-testimony of them all, is equal in grade, though it may differ in value or weight, as it comes from one or the other. 'It is so in the comparison of handwritings. The best witness may be a forger,, or a banker, &c., but the testimony of a — 167 — merchant is of tbe same grade. Skill in judging of band-writing is common to men of many callings, although one calling may produce a better expert on this subject than another. Accordingly, an “ expert ” is defined to be “a person instructed by experience.” 1 Bouv. Law Diet. 501. The subject is considered in 1 Greenlf. Ev. 554, § 440, and the notes; 4 Phil. Ev. (Cow and Hill’s notes) 488, note 258; 1 Smith’s Lead. Cas. 541; 1 Stark. Ev. 127, 154. In these, the cases will be found. Our conclusion is, that the present inquiry did not require a witness of a particular calling as an expert, but that his admissibility depended on his means of knowledge as a business man, and his intelligence. We place no weight upon the fact, that a witness does not claim to be an expert, nor to be superior to others in judgment. In conclusion, we do not think the court erred in admitting these witnesses. The fourth error assigned, is the giving the fourteenth instruction to the jury. We cannot determine whether this was error or not. This depends upon the proof in the case. The statement of evidence in the bill of exceptions is imperfect and obscure, and it is not said that that is all there 'was on the trial. The judgment is reversed upon the first error assigned, and remanded for further proceedings not inconsistent with this opinion.