Jackson v. Brooks, 8 Wend., 426.

case of Rogers . Ritter (12 Wall., 317). From this knowledge and experience of the handwriting of Carpenter, the witness further testified, "the signature to the paper shown me is his signature, to the best of my knowledge. I believe it is his." And this, in the absence of any evidence tending to discredit the statement of the witness, sufficiently authenticated the receipt to entitle it to be read in evidence.

JACKSON v. BROOKS.

New York Supreme Court, 1832.

[Reported in 8 Wend., 426; affirmed in 15 Wend., 111, without opinion.] Where the antiquity of a writing is such that no witness can swear that he has seen the parties write, a witness is competent to prove their signatures, who has become familiar with their signatures by inspecting other ancient writings bearing them, which have been treated and regularly preserved as authentic.*

Action of ejectment.

The plaintiff claimed under Arent Bradt, through mesne conveyances. To prove title in Bradt, two deeds dated in 1733 were produced by plaintiff, and one Vrooman testified that the grantors and witnesses had been dead too long a period for any person living to have seen them write; that he had acquired a knowledge of the handwriting of those grantors and witnesses by inspecting deeds in his possession from those persons which constituted some of his muniments of title, and could swear to the genuineness on the deeds in question. On this evidence, the deeds were admitted in evidence, over an objection to its sufficiency.

In the Circuit Court a verdict was entered for plaintiff, subject to the opinion of the court on a case made.

The Supreme Court entered judgment for defendant. SAVAGE, Ch. J. [after stating the facts]: Evidence of this description has been distinguished from comparison of hands.

*To the same effect, Rogers v. Ritter, 12 Wall., 317.

Note on Proof by Non-expert.

The witness is supposed to have formed a standard in his mind, from an examination of writings deemed authentic and with that standard to compare the writings in question (1 Phil. Ev., 428, Gould's ed., 1823). It is added: "When the antiquity of a writing purporting to bear a person's signature, makes it impossible for a witness to swear that he has ever seen the party write, it has been held sufficient that the witness should have become acquainted with his manner of signing his name, by inspecting other ancient writings which bear the same signature, provided those ancient writings have been treated and regularly preserved as authentic documents (7 East., 282 n. and 14 id., 328). The documents in this case, from an examination of which the witness formed his opinion, have been preserved as muniments of title, and constitute the evidence of the title of the defendant himself to a small piece of land included in the same deed with the premises in dispute. The deeds, therefore, from Jan Wemp and Arent Bradt to Jacob Glen, and from the latter to Arent Bradt, must be considered as sufficiently proved, and they show title in Arent Bradt.

NOTES OF RECENT CASES ON TESTIMONY OF NON-EXPERT WITNESS.

Alabama Cambell v. Woodstock Iron Co., 83 Ala., 351; s. c. 3 Southern Rep., 369 (a witness who has corresponded with a person is competent to testify as to his handwriting though the witness has never seen his correspondent). Gibson v. Trowbridge Furniture Co., 1893, 11 Southern Rep., 365 (one cannot be permitted to testify as to the genuineness of handwriting of another, who has merely seen writings purporting to be those of such other person, but who has not been shown to have personally communicated with him respecting them, or to have acted upon them as his). Nelms v. State, 1891, 9 Southern Rep., 193 (a non-expert, who has seen defendant write but once and has seen but one writing that he knew to be defendant's, and who states that he is not familiar with defendant's handwriting, is not a competent witness in relation thereto). Colorado: Salazar 2. Taylor, 1893, 33 Pacific Rep., 369 (a bank-teller who has seen the checks of a person may testify as to his handwriting). Georgia: Wimbish v. State, 89 Ga., 294; s. c. 15 Southeast Rep., 325 (a non-expert cannot testify as to the identity of handwritings if his opinion is wholly founded upon the comparison of a signature, which he knows to be genuine, with the one

Note on Proof by Non-expert.

which is in question; it makes no difference that he saw the genuine signature executed unless he testifies that by some means or other he knows or would recognize the handwriting of the person who executed it). Illinois: Ennor v. Hodson, 28 Ill. App., 445, (one who testifies that he is acquainted with a person's signature from seeing it attached to papers known to have been signed by him, is a competent witness as to the handwriting of such person). First National Bank of Galesburg v. Hovall, 24 id., 594 (a witness who had only examined the signatures of defendant, admitted to be genuine after the dispute arose, held not a competent witness as to defendant's handwriting). Riggs v. Powell, 1892, 32 Northeast. Rep., 482 (in order to render a witness competent to testify as to handwriting it is not necessary that he should directly state that he is familiar with the persons handwriting, if the fact otherwise sufficiently appears from his testimony). Indiana: Talbott v. Hedge, Ind. App., 1893, 32 Northeast. Rep., 788 (a witness is not competent to testify as to another's handwriting who has merely received a notice purporting to be signed by the person whose signature is in dispute, and who has never seen such person write, and it does not appear that the signature was ever acknowledged by the person purporting to have signed it, or that the notice was ever acted upon by the witness). lowa: Egan v. Murray, 80 Iowa, 180; s. c. 45 Northwest. Rep., 563 (a witness who answered affirmatively a question as to whether he was acquainted with the handwriting of the person whose signature was in dispute, and who was not cross-examined as to such knowledge, may give his opinion as to the genuineness of the disputed signature). Kansas: Arthur v. Arthur, 38 Kan., 691; s. c. 17 Pacific Rep., 187 (a witness cannot testify as to the signature of another unless his knowledge of the other's handwriting is first shown). Louisiana: Succession of Morvant, 45 La. Ann.; s. c. 12 Southern Rep., 349 (any person who has seen another write and has acquired a standard in his mind of such person's writing is a competent witness as to the genuineness of a writing purporting to have been made by such person). Minnesota: Berg v. Peterson, 49 Minn., 420; s. c. 52 Northwest. Rep., 37 (a witness may acquire sufficient knowledge of another's handwriting to enable him to testify in relation thereto from having seen papers purporting to have been executed by the person whose writing is in dispute and which he has acknowledged or acquiesced in as being genuine). North Dakota: Territory v. O'Hare, 1 N. Da., 30; 44 Northwest. Rep., 1003 (an expert in handwriting who has seen defendant write but once, and then, only to enable the expert to become a witness, is incompetent). North Carolina: Tuttle v. Rainey, 98 N. C., 513; s. c. 4 Southeast. Rep., 475 (it is not necessary that a witness as to handwriting should have seen the person write; it is sufficient if he has acquired knowledge of such person's handwriting from handling papers admitted to be genuine). Pennsylvania: Second Natl. Bk. v. Wentzel, 151 Pa. St., 142; s. c. 24 Atlantic Rep., 1087 (a witness who testifies that he saw defendant's signature, which defendant admitted to be genuine may be permitted to give his opinion as to the genuineness of defendant's signature to the note in suit). Wilson v. Van Leer, 127 Pa. St., 371; s. c. 17 Atlantic Rep., 1097

Note on Proof by Non-expert.

(it is within the discretion of the trial court to allow a witness to testify as to another's handwriting, although the witness testifies that he has only seen the person whose signature is in dispute write twice in 32 years and once endorse a check, 23 years before). South Carolina: Weaver . Whildon, 33 S. C., 190; s. c. 11 Southeast. Rep., 686 (it is not error to refuse to permit a non-expert, unfamiliar with the handwriting of an alleged grantor to testify as to the genuineness of his signature by comparison with other signatures admitted to be genuine). Stoddard v. Hill, 1893, 17 Southeast. Rep., 138 (it is sufficient if a witness as to handwriting states that he knows the handwriting of the person which is sought to be proved, though he is not directly asked whether he has seen such person write). Utah: Tucker v. Kellogg, 1892, 28 Pacific Rep., 870 (a witness who as administrator has seen numerous checks and notes among the papers of intestate, and who states that he is acquainted with deceased's signature, is a competent witness to testify as to deceased's handwriting).

Comparison with writing not produced.

Spottiswood v. Weir, 80 Cal., 448; s. c. 22 Pacific Rep., 289 (a non-expert cannot testify that the signature to a lost deed which he has seen was the same as the signature to another deed produced and shown to him).

Hammond v. Wolf, 78 Iowa, 227; s. c. 42 Northwest. Rep., 778 (a witness may give his opinion as to the genuineness of a disputed lost signature which he has seen, based upon a comparison of his recollection of it with a signature of the same person in evidence and admitted to be genuine).

Mugge v. Adams, 76 Tex., 448; s. c. 13 Southwest. Rep., 330 (a witness who has not qualified himself to testify as to the handwriting of a person who signed a letter not produced cannot be permitted to express an opinion that the unproduced signature was similar to the signature of an instrument in the cause).

N. Y. Statutes.

The New York statutes which provide for proof of handwrit ing by standards of comparison, are as follows:

L. 1880, C. 36: "§1. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine, shall be permitted to be made by witnesses in all trials and proceedings, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.

"2[as amended by L. 1888, C. 555]. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person, claimed on the trial to have made or executed the disputed instrument or writing, shall be permitted and submitted to the court and jury in like manner. But nothing within contained shall affect or apply to any action or proceeding heretofore commenced or now pending."

PECK v. CALLAGHAN.

New York Court of Appeals, 1884.

[Reported in 95 N. Y., 73.]

To prove the genuineness of standards of comparison under N. Y. L., 1880, c. 36 [and consequently under N. Y. L., 1888, c. 555], it is not necessary to produce a witness who saw them written; but opinion evidenceis competent, and may be sufficient. The act leaves the sufficiency of the identification of the standards, and, it seems, their number and character, to the discretion of the trial judge.*

Application for probate of the will of Gertrude B. Callaghan, contested on the grounds (among others) that the signature was forged.

On the trial, William M. Murray, cashier of the Goshen National Bank, was called by proponent, and testified on direct examination that he had seen decedent endorse her name on the back of certificates of deposit, that he was acquainted with her

*So far as this case also holds that the contestant cannot offer in evidence specimens of the handwriting of the person who is claimed to have forged the instrument, it is superseded by L. 1888, c. 535.