#### Isaac Hall and Another *versus*Thomas Huse.

Notwithstanding evidence of the promisor’s acknowledgment of his signature to a promissory note, he was admitted to produce evidence of persons acquainted with his hand-writing, in whose opinion the signature was *not*genuine, and also to prove the same by signatures known to be his; and he having obtained a verdict upon this evidence, a new trial was refused.

Assumpsit on a promissory note for *700*dollars, dated the 13th of August, 1811, payable to *Obádiah Huse*or order, in four months, with grace, purporting to be signed by the defendant, and endorsed to the plaintiffs.

* At the trial, which was had on the general issue, [ *40 ] before *Parker,*J., at the last November term in this county, it appeared that the note was endorsed by *O. Huse,*in the course of trade. The genuineness of the endorsement was not contested; but the plaintiffs were required to prove the signature of the maker, and for that purpose read the deposition of *Zopkar Hayden,*which came up in the case.

The purport of the deposition is, that, in October, 1811, the wit *48ness, *Hayden,*accompanied the plaintiff, *Hall,*at his request, to *Dorchester,*with a view to ascertain whether the defendant woulci acknowledge the signature of a note which *Hall*then had, and which the witness believed to be the note sued in this action. On their arrival, Mr. *Hall got*out of the chaise, and calling the defendant out, had some conversation with him, which the witness did not hear. The witness, being then called by *Hall,*went to him, and the latter presented the note to the defendant, and inquired if the signature was his. He said it was, and requested *Hall*not to distress him, for that he expected the arrival of a vessel soon. The witness thought that the defendant took the note into his hands, examined it, and pronounced it to be good.

The plaintiffs rested on the acknowledgment of the signature by the defendant, as stated in *Hayden’s*deposition, and on evidence that the said *O. Huse*continued to reside in *Boston,*until late in the month of *November,*1811, when he absconded. It did not appear at the trial that the defendant did, at any time after *Hall’s*application to him, and prior to *O. Huse’s*absconding, apprize the plaintiffs that the signature was not genuine ; nor that he did anything whereby the plaintiffs might have been induced to attempt the obtaining from the said *O. Huse*any further security prior to his departure.

No evidence was offered by the defendant to impeach the testimony of *Hayden,*or to show that the acknowledgment stated in the deposition was obtained under any unfair circumstances. But it appeared that the defendant was seventy years of age, and [ *41 ] that he had written his name on several * blank pieces of paper, and given them to the said *O. Huse,*to be filled up as he should want them. It further appeared that, as early as September, 1811, it was known in *Boston,*that the said *O. Huse*had forged the name of one Allen; but it did not appear that this was known to the defendant, at the time of the interview between him and *Hall,*or at any time afterwards. To prove that the signature was not genuine, the defendant offered several witnesses, to testify that they were acquainted with his hand-writing, and that, in their opinion, the signature was not genuine; and also the signature of the defendant, which was proved to be genuine. The plaintiffs objected to the admission of this testimony, on the ground that the defendant’s, acknowledgment, as proved in said deposition, was conclusive. But the judge overruled the objection, and the testimony was admitted, *(a)*

*49The judge instructed the jury that, notwithstanding the testimony of *Hayden,*if they believed, from the evidence in the case, that the signature was not genuine, they ought to find a verdict for the defendant, which they accordingly did.

The plaintiffs moved for a new trial, which was to be granted them, if, in the opinion of the Court, improper evidence was admit ted at the trial, or if the direction of the judge to the jury was wrong in point of law.

*Thatcher*for the plaintiffs.

The deposition of *Hayden*contains a full and free confession by the defendant of his signature to the note. Then the plaintiffs furnished the best evidence, to prove the signature, which the case admitted, since there was no subscribing witness. Yet the jury were told, by the judge, that they might reject this evidence, plain and full as it was, if they doubted the genuineness of the signature. It was competent, indeed, for the jury to inquire whether the confession was voluntary. This being established, it is humbly insisted that they ought to have been instructed, that they could not, consistently with the * rules of law, reject the evidence, for other testimony, [ **42*j so loose and uncertain as that which is derived from a comparison of the hand-writing. (1)

But if this evidence was not conclusive, the conduct of the defendant had amounted to an adoption of the note. It was owing *50to his acknowledgment of the signature, and his entire neglect of all attention to the concern, that the plaintiffs did not call on *O. Base,*the endorser, for security. No negligence is imputable to the plaintiffs; but the defendant is chargeable with great misconduct.

*Sedgwick*for the defendant.

(a)

**[In *Homer*vs. *Wallis,*(11 Mass. *Rep.*309,) a signature of the defendant to s note proved to be genuine by a witness who said he saw him sign it, was admitted in evidence to urove, by comparison, the band-writing of the defendant to another note in " *49dispute. Parker, C. J., in giving judgment, said, “ Whatever doubts there may now be, in *England,*as to this species of evidence,—for in former times it was holden admissible, and has never yet, to our knowledge, been settled otherwise, — we have no doubt that it has become, by long and invariable usage in this state, competent evidence here.” But the learned judge seems to have labored under some mistake. It is now, and was long before, and at, the time of the settlement of this country, as well as at the time of the adoption of our constitution, an established principle in the law of *England,*that hand-writing cannot be proved by comparison of writings, *(Phillips,*372,) although the reasonableness of the rule has sometimes been doubted. — *Starkie,*part 4, p. 654—5. — This position is supported by *The King*vs. *Lady Carr,*1 *Sid.*416. — The reversal of *Sidney's*attainder, *Stat.*1 *W. M.*c. 7, of private acts. *Crosby's*case, *Skin.*578, S. C. — l‘Lord *Raym.*40, S. C.—12 *Mod. 72.—Macpherson*vs. *Thoytes, Peak. Cas.*20. *—Brockbeard*vs. Woodby, ib. cit.— *Cary*vs. *Pilt, Peak. Ev*ap. 11, 2d *Lond.*ed. — *Stranger*vs. *Searle,*1 *Esp. Cas.*14. — *Bachelor*vs. *Honeywood,*2 *Esp. Cas.*714. — *Garrells*vs. *Alexander,*4 Esp. *Cas.*37. — *Rex*vs. *Cator,*4 *Esp. Cas.*117. — *Eagleton*and *Coventry*vs. Kingston, 8 *Ves.*Jun. 474. — *Wade*vs. *Broughton,*3 *Ves. & Bea.*172. — *Gurney*vs. *Langlands,*5 *Barn. Aid.*332. — *Robson*vs. *Rock,*2 *Adams's Eccles. Rep.*87.— *Powell*vs. *Ford,*2 *Starkie,*254.— And see the authorities collected and commented upon by Mr. *Day,*in a note to *Rex*vs. *Cator.*— *Martin*vs. *Tay'or, Whart. Dig.*245. — *United States*vs. *Johns, Whart. Dig.*245. — *Bowman*vs. *Plunkett, 2 M'Cord,*518. — *State*vs. *King,*cited by Mr. *Day,*in note to *Macpherson*vs. *Thoytes,*ub. sup.— *Titford*vs. *Knox, 2 Johns. Cas.*211.— *Hammond's*case, 2 *G enl. 33.—Pearl*vs. *Allen,*1 *Tyl. 4.—Jackson vs. Van Deusen,*5 *Johns. Rep.*144.— *Ormstead*vs. *Stewart,*13 *Johns.*238.— *State*vs. *Allen,*1 *Ruff.*6. — To submit handwriting to the jury for the purpose of comparison, which is itself first to be proved by testimony to be genuine, is far more objectionable, than to give in evidence that which is admitted by the party himself, or his counsel, on the trim, to be genuine —Bn.]

*Curia.*

This was merely a question of evidence, of which the jury were the only competent judges. They were properly instructed by the judge, and the verdict must be conclusive, *(b)*

*Judgment on the verdict.*

ADDITIONAL NOTE.

[The admissions of a party, under a misapprehension of his legal rights and liabilities, do not bind him. — *Moore*vs. Hitchcock, 4 *Wend.*292.

See *Law*vs. Merrills, 6 *Wend.*268. — *Com.*vs. Knapp, 9 *Pick.*503.

A, a tenant of certain land, presented a petition to the legislature, admitting it to belong to the commonwealth, and praying that it might be granted to him, but it was afterwards sold to B. Held, A was not *estopped*from claiming the land, but his admissions were strong evidence against him, and threw the burden of proof on him to show an innocent mistake on his part.— *Owen*vs. Bartholomew, 9 *Pick.*520. — F. H.j

(b)

**[The report of this case would have been more satisfactory, if it had stated whether or not the plaintiffs took the note upon the admission of the maker, or had acted upon the faith of it, or had been prejudiced thereby. The case finds that the admission was made before the note was due, and was not unfairly obtained. If the note was taken on the faith of it, or if it was fairly sought in order to act upon it, of which, under the circumstances, the defendant must have been sufficiently apprized, he ought to be bound by it. In such case, to use the language of Lord *EUenborough*in *Leach*vs. Buchanan, (4 *Esp.*227,) “ it would not rest on the signature being a forgery or not. It might not be the defendant's hand-writing; and he might prove that it was not so by witnesses, and still the plaintiffs would be entitled to recover.” - *Cooper*vs. *Le*Blanc, 2 *Str.*1051. — *Jennis*vs. *Fowler ML*2 *Str.*946. — *Price*vs. Neale, 3 *Burr.*1354. — Bayley, 322. — Chitty, 387. — The rule is correctly laid down by Starhie, (part 4, p. 31,) who says, “ There is a strong line of distinction between admissions, or conduct upon which a party has induced others to act, or by means of which he has acquired some advantage to himself, and those admissions which have been made without any reference to the matter litigated. In the former case, the party is usually precluded absolutely by such an admission,”— *Clarke*vs. Clarke, 6 *Esp.*61.— *Howe*vs. Rogers, 6 *Esp.*20. — And see *Gloucester Bank vs. Salem*Bank, 17 *Mass. Rep.*1, where *Jennis*vs. Fowler, *Price*vs. Neale, and *Leach*vs. Buchanan, are recognized and held to be law in *Massachusetts.*— Ed .]