#### David Magie, plaintiff and respondent, *vs.*Abner Osborn, (who was impleaded with Joseph Naylor, *et. al.)*defendant and appellant.

1. In proving handwriting by the opinion of a witness having a competent knowledge of the general character of the handwriting of the person in question, it must appear that the opinion expressed is founded solely upon such knowledge, and not upon inferences from other .facts than the character of the handwriting.

2. If the witness has seen the person write on several occasions, his belief as to the genuineness of the writing is competent to go to the jury, however weak evidence it may be deemed. *(Per*Monell, J. dissenting.)

(Before Moncrief, Robertson and Monell JJ.)

Heard October 17,1863;

decided November 14, 1863.

This was an appeal from a judgment in favor of the plaintiff, entered on a verdict.

The action was brought by David Magie against Joseph Eaylor, Richard Calrow, Jr. and Abner Osborn, to recover on a bond of indemnity alleged to have been made by them. The defense interposed by Osborn was a general denial.

The cause was tried on the 28th of May, 1863, before Justice Monell and a jury.

The evidence material to the question decided on the appeal is stated in the opinions.

The plaintiff having gained a verdict, the defendant, Osborn, appealed from the judgment entered thereon.

*S. P. Nash,*for the defendant, appellant.

I. There was not sufficient proof of the execution of the bond, by Osborn, to justify the court in submitting the case to the jury.

1. The testimony of the witness, Parsons,* - was insufficient *690to carry the case to the jury. (2 *C. & H. Notes to Ph. Ex.*1321 *to*1323. *Utica Ins. Co.*v. *Badger,*3 *Wend.*102.)

2. The form of the certificate of acknowledgment not having been shown, or the name or residence of the commisssioner, the fact that the bond purported to have been acknowledged, was no evidence. The effect of a certificate of acknowledgment depends on the statute, and there is no provision making parol evidence of the .certificate, proof of the execution of the principal paper.

II. The verdict is against the weight of evidence.

*C. A. Davison,*for the plaintiff, respondent.

I. The foundation was sufficiently laid for secondary evidence as to the contents of the bond in question, and the terms of the instrument.were clearly established.

II. The evidence introduced to show the execution of the bond by the appellant, Osborn, was competent for that purpose, and the motion'to strike out was, therefore, properly denied, as was also the motion to dismiss the complaint.

The evidence was two fold.

1. That of the *genuineness of the signature.*

*(a.)*The question is as to the competency, not the weight of the evidence ; and it was competent. *(Ph. on Ev. C. & H, Notes, part 2d, p.*475, *et seq. 2 Saund. Pl. and Ev.*553. *Warner*v. *Anderson, 8 Scott,*384. *Shilter*v. *Bremer,*23 *Penn. Rep.*413. *Titford*v. *Knott, 2 John.*Cases,.211.)

*(b.)*The competency of the witness was not affected by what he testified upon the cross-examination. *(Griffith*v. *Ivery,*11 *Adolph. & Ellis,*322. *Van Wyck*v. *McIntosh, 14 N. Y. Rep.*439.)

- *2.*That of the *certificate of acknowledgment.*

This was likewise competent evidence. *(Laws of*1863, *ch.*271, § 9,)

III. There is no force in the objection that the attesting witness was not called, because it was not shown there was an attesting witness, or that he was known. *(Jackson*v. *Vail,*7 *Wend.*125.)

*691IV. The failure of Osborn, except in a qualified way, to deny the execution of the bond when charged with it, was sufficient to authorize the jury to-find that it had been executed by • him. *(Thomas*v. *Mills, 4 E. D. Smith,*77. *Jewett*v. *Banning,*21 *N. Y. Rep.*27.)

By the Court, Robertson, J.

This was an action on a lost bond of indemnity against a builder’s lien, claimed to be signed by the appellant, the defendant Osborn, and his co-defendants Calrow and Naylor. Two questions were raised on the trial; one as to due proof of its loss to admit secondary evidence of its contents, and the other as to its execution by the appellant. Sufficient prima facie evidence of its loss to admit secondary evidence of its contents, seems to have been offered on the trial. The plaintiff endeavored to establish the execution of such bond by the appellant in three ways, by his admissions, by proving his signature, and by its acknowledg-ment before a commissioner. The only admission proved was, that on being told by the plaintiff “You are one of the bondsmen as surety for that lien on the store,” he said, “I don’t know any thing about that; I don’t recollect; no, I don’t recollect any thing about that, Mr. Magie.” He also said he had signed various bonds—a number of bonds for Naylor, but he had no knowledge now of signing one for the plaintiff. He said he had some memorandum of the bonds he had so signed. He merely stated his want of recollection of signing such bond. There was no evidence of the name or signature of the commissioner of deeds, but only that the execution of the bond purported to be acknowledged before some one claiming to be such officer.

The only witness examined as to the signature of the appellant to the bond in question, had been the former counsel of the defendant Naylor, (Parsons.) In reference to his oppqrtunities of becoming acquainted with the appellant’s handwriting, he testified: That he had seen it on several occasions. He *thought*Osborn was at his office and had executed one or more papers for the defendant Naylor. His *recollection*was. *692that he saw him. execute several papers. That *was Ms best recollection;*that he *“had seen Mm write in Ms office on one.*or more occasions when he came to execute papers.'” This, perhaps, ¡though very'faint,' might be sufficient to go to the jury on the question of the enjoyment by'the witness of an opportunity, by means recognized by the law, of becoming acquainted with the party’s handwriting, *(Garrels*v. *Alexander,*4 *Esp.*37, *and comments thereon of Lord Eldon, in Eagleton*v. *Kingston,*8. *Ves.*438;) the question .being not on'the frequency of the opportunities, but their nature and degree .of impression. "

But the .testimony of. the same witness in regard to his improvement 'of such opportunities, and his knowledge derived therefrom of the .character, of the appellant’s handwriting, is still weaker. He stated, *“*That he had seen Osborn write in his office on one" or moré occasions, * ®. and became acquainted with' his signature *to that extent,*at that time •” what" extent he meant does not clearly appear, but it could not have been any further, than the degree of acquaintance produced byseeing him write once or twice; which may have been none at all. That extent is better shown on his cross-examination, in which he stated that “he was not an expert in signatures.'. If there was a good imitation he should call it Osborn’s, and so of. anybody else’sand he finally acknowledged in. answer to a question put to him to that effect, that he was *not*“sufficiently familiar with Osborn’s handwriting to discriminate between a genuine signature and a *tolerably good*imitation of one.” This showed, at least, as little ac-> quaintance with the handwriting sought "to be proved as the witness in the case of *The Utica Insurance Co.*v. *Badger,*(3 *Wend.*102,) which was held to be barely sufficient. :

"With such -uncertain opportunities of seeing the appellant write, and such doubtful ability to decide whether any signature was his, the same witness undertook to testify as to his views of the particular one in question. He said, “ He thought he recognized the signatures to the bond in question.” That he “ recognized the bond as being signed by ” the appellant. *693“ That he recognized it *at the time*as a genuine instrument,” and that was all. What he meant by *recognizing*aninstrument seen by him for the first time does not clearly, appear." His recognizing one of the signatures to be the appellant’s, would have been more to the purpose, as he thought he' had seen him write. But he does not go as far as that, but states merely that he recognized the signatures to the bond, which is scarcely equivalent to a statement that in his opinion the signature was the appellant’s."

At all events, he nowhere undertakes to say, in pronouncing upon the signature as being the appellant’s, that he ’does so from acquaintance therewith, derived from the ■ opportunities he had of seeing him write. Starkie in his work on evidence, *(vol.*2, 372, *6th Am. ed.)*lays down the principle that any witness may be called to prove handwriting who has “ in either of the modes which the law recognizes as legitimate, acquired *such knowledge of the general character of the party’s handwriting as will enable him to swear to his belief that the handwriting in question is his.”*It ■ is very plain that the belief must be founded on such knowledge. Mere'opportunity of seeing a person write, and an acquaintance with the character of his handwriting, does not render a witness competent to express his belief, founded upon other facts, as to the genuineness of the. handwriting. *(Da Costa*v. *Pym, Peake’s Add. Cas.*144.) The judgment of a witness upon a writing he did not see made, as a matter of opinion, and not a statement of an occurrence addressed to his senses, must necessarily be that of an expert. Justice Pattesou, in *Doe, ex dem. Mudd,*v. *Tuckermore,*(5 *A. & E.*730; *and S. C.*1 *Nev. & P. 22,*56,) declares it to be “the belief which a witness entertains upon comparing the writing in question *with an exemplar in his mind, derived from some previous knowledge.”*That comparison alone must be the source of the belief, and that with which it is to be made is the exemplar derived from previous knowledge alone.

To hold otherwise would be either to permit the illiterate or careless observer, under whose eyes, merely, a signature or *694even initials *(Jackson v. Van Dusen, 5 John.*144,) have been made, by force of that occurrence, to become forever qualified to give his opinion as to any other writing 'by the writer of the signatures or initials, or if knowledge of the handwriting has been acquired by such opportunity, to be vested with power to pronounce upon such handwriting, although influenced only by inferences or probabilities created by other facts than *the character*of the handwriting. Either of those propositions would render the admission of the exceptional case of testifying as to handwriting by opinion, still more dangerous, and the rule by which it is justified, absurd. The law can not presume either that every one who has seen another write must, prima facie, have acquired a knowledge of his handwriting, or that witnesses, if allowed to express a belief as to the author of a handwriting, without stating the grounds of it, will not found it upon any thing but their knowledge of it. It may be said, it is true, that the grounds of belief may be elicited on cross-examination; but- if the testimony is to be rejected in case they prove to be any thing else but the knowledge derived from experience, it proves that such knowledge is necessarily the only legal foundation for it.

Although, perhaps, no case expressly adjudiciates this point, they all assume it. .In *Johnson*v. Daverne, (19 *John.*134,) where seeing instruments recognized by the party whose handwriting was sought to be proved, was held to be a legitimate mode of acquiring the proper acquaintance with it, the witness’ belief of a signature being such party’s, was only held to be sufficient if it arose from such knowledge ; and similar language of the same qualification is used in other cases. *(Titford*v. *Knott,*2 *John. Cas.*211. *Harrington*v. *Fry,*1 *Ry. & Moo.*90. *Thorpe*v. *Gisburne,*2 *Car. & Payne,*21.) A witness has even been allowed to look again at a former signature on seeing the making of which his knowledge rested, in order to ^etouch and strengthen his recollection. *(Redford’s Adm’r*v. *Peggy, 6 Rand.*316.)

It is surely as important to require the witness who is testifying to handwriting, to state whether what he states is *695founded upon the acquaintance with it, derived from experience, as it is to require a witness who assails the general character of another witness, to state that the opinion he gives, as to his credibility, is founded upon his knowledge of that general character, bio such requisition was made in this case, and the testimony of the witness as to the genuineness of the signature without it, was therefore insufficient or incompetent to prove such handwriting, and there was no other proof of the execution of the bond.

The judgment should be reversed, and a new trial directed, with costs to abide the event.

Monell, J. (dissenting.).

The only question upon which I differ with my brethren is, whether the evidence of the handwriting of the defendant, Osborn, to the bond in suit, was sufficient to go to the jury.

Mr. Parsons testified that he had seen Osborn’s handwriting on several occasions ; that Osborn was at his office and executed one or more papers on several occasions, in behalf of Baylor, in several matters, and his recollection was that he saw him execute several papers. *“*Q. Did you know the handwriting P A. I thought I did. Q. Do you say now that you did ? A. I think I did know the handwriting of Osborn. Q. You recognized that bond as being signed by him, and by Calrow and Baylor ? A. Yes sir, and by Baylor.” The witness further testified : *“*That was my best recollection, that I have seen Osborn write in my office, on one or more occasions, when, he came to execute papers, and I became acquainted to that extent with his signature at that time, and recognized this at the time as a genuine instrument.” Upon his cross-examination, Mr. Parsons testified that he had no recollection how often he had seen Osborn write ; that he could not positively say.that he had seen him write three times. “ Q. Can you say now that you know his handwriting ? A. I think I should know his handwriting if I saw it. Q. Could you tell it from a tolerable imitation ? A. I am not expert in signatures ; if there was a good imitation I should call it his, and so of any *696body’s else. Q. Are you sufficiently familiar with his hand^ writing to discriminate between a genuine and a tolerably good imitation of the signature ? A. No sir, I do not know that I am.”

The law imposes no other duty upon parties than to give the best evidence in their power. Having done this, its sufficiency, in a large majority of cases, is to be determined by the jury. The strongest possible proof of the matter in question is not required, but it must be seen that no evidence is received, which from its nature supposes still greater evidence behind in the party’s possession or power.

A witness may not testify to the genuineness of a signature, who has never seen the party write, except he be an expert who testifies from mere comparison. All evidence of handwriting, except when the witness saw the document written, is in its nature comparison. It is the belief which the witness entertains, upon comparing the writing in question, with, its exemplar in his mind, derived from some previous knowledge. If the witness has *any*knowledge of the party’s handwriting, he may declare his belief in regard to the genuineness of the writing ; and the only difference among judges, has been upon the source from which the knowledge is derived, rather than as to the degree or extent of it. Mr. Philips says, (1 *Phil. Ev.*484,) evidence of handwriting admits of every possible degree, from the lowest presumption to the highest moral certainty. It may be so weak as to be utterly unsafe to act upon, or so strong, as in the mind of any reasonable man to produce conviction. But whatever degree of weight the testimony may deserve, *which is a question exclusively for the jury,*it is an established rule, that if the witness has seen the person write, he will be competent to speak to his handwriting.”

Mr. Parsons testified that he had seen Osborn write on several occasions. He was thus qualified to declare his belief as to the genuineness of his signature to the bond in question, and he did declare it, by saying that he recognized Osborn’s signature to the bond. However weak this evidence may have been, *697it was competent to go to the jury, and their determination of it will not he disturbed by the court.

One of the earliest and a leading English case is *Garrels*v. *Alexander,*(4 *Esp.*37.) The action was assumpsit on a bill of exchange. To prov'e the handwriting, the plaintiff called a, clerk of the defendant’s attorney. He said he had seen the defendant sign the bail bond in the cause, but had never seen him write on any other occasion. Being asked whether he believed the acceptance to be in the hand-writing of the defendant, *he said he could form no belief on the*subject/ it was like the handwriting in which the bail bond was subscribed, but that he could not speak to any belief further than he had already done. Lord Kenyon considered the evidence sufficient to go to the jury. He says, “ The witness has seen the defendant write, and he speaks to the likeness which the handwriting in which the bill is accepted bears to that which he has seen the defendant actually write,”

In *Lewis*v. *Sapio,*(1 *Moody & M.*39,) the witness said he had seen the defendant write his name several times, but always “Mr. Sapio,” and had never seen any other writing by him. Abbott, Ld. Oh. J. held it sufficient.

In *Powell*v. *Ford,*(2 *Starkie,*164,) the witness said he had seen the defendant write *once,*when he executed a bail bond ; that he had compared the handwriting upon the bill with that upon the. bail bond, and believed the former to have been written by the defendant. He also stated that from having seen the defendant execute the bail bond, he believed the accceptance was in his handwriting, but that when the defendant signed the bail bond, he did not write his name at length, but only “ Mr. Ford.” Lord Ellenborough held the proof sufficient. He said “ if the witness had seen the defendant write his full name, although but once, it would have been sufficient.”

In this country the courts have all followed the English cases.

In *Hartung*v. *People,*(4 *Park, C. R.*319,) a letter supposed to have been written by the prisoner, was given in evidence. The witness, to prove the handwriting, said she had *698seen the prisoner write,- and expressed her opinion that she would know her handwriting, and that the letter was in her handwriting. The court say, “ There is no precise standard fixing the degree of knowledge which a witness must possess of a person’s handwriting, to be allowed to express an opinion as to the authenticity of a particular paper. The witness must have seen the party write, and acquired a knowledge, more or less perfect, of the character of the hand, and he is then allowed to express an opinion upon the paper shown.”

In *Hopkins*v. *Megguire,*(35 *Maine Rep.*78,) the witness said he had seen the party write five or six times, and that it was his strong impression that the indorsement was in his handwriting ; that it looked like it, but that he could not swear to the indorsement, nor to his writing. " This was held sufficient to go to the jury. The court say, “All that a witness can be expected to testify is that the handwriting resembles that of the person whose it purports to be. The strength of his belief will depend on the greater or less degree of similarity. He can only testify to his own state of mind.” -

In *Burnham*v. *Ayres,*(36 *N. H. Rep.*182,) the witness said he had seen, the defendant write; could not say that he could tell *it;*used to have some recollection of'his hand; could not say he could form any opinion of his hand, but rather thought he could. This was deemed sufficient. The court say, “If a witness has any knowledge of the handwriting, which has been derived from seeing the person write, though it be but once, he may give his opinion as to the genuineness of the signature or writing in dispute.” And

In *Shilter*v. *Bremer,*(23 *Penn. R.*413,) Knox, J. says, “The evidence given to prove that the letter was in the handwriting of the defendant, *was very slight.*One witness said, ‘It looks like it; it resembles it; can not say I ■ believe it to be his handwriting, for there is a possibility of mistake ; there is a general resemblance.’ Another said, ‘ There is a slight resemblance in some of the letters.’ We can’t say that it was error in the court to submit this evidence to the jury.”

In all the cases, to which I have referred, the evidence to *699prove the handwriting was far weaker than in the case now before us. Here the witness had seen the defendant write on several occasions, and says, that in that way and to that extent he became acquainted with his signature, and then he expresses the belief that the bond was a genuine instrument.

At the close of the evidence, the defendant’s counsel moved to dismiss the complaint, on the ground that there was not sufficient proof to go to the jury that the bond was executed. The motion was overruled, and the question of the execution of the bond by the defendant was submitted to the jury.

I think it was properly submitted; and upon well settled principles governing evidence of this character, as well as upon a' long line of uniform adjudication, it would have been error to have excluded it from "their consideration.

No motion having been made at special term for a new trial on the ground that the verdict is against the weight of evidence, I am not at liberty to consider that question.

I arh of opinion that the judgment should be affirmed.

Judgment reversed.