The record-union., 1897-10-01

the disputed note was written by the
same party who signed those which
We're admitted to be genuine and signed
by the defendant in this case. The
plaintiff testified that, some time after
the note in dispute was assigned to
him by Homer, the defendant Cotter
came to his office for the purpose of
negotiating a small loan. At that time
a conversation occurred between the
plaintiff and the defendant in which
the former, among other things, asked
the latter why he had business dealings
with so unreliable a person as Homer,
and also observed that Homer had no
property and no means and that he
QIomer) always brought his defend
ants notes to him plaintifD to have
them cashed. Plaintiff also testified
that he, during this same conversation,
had in the presence of his daughter,
Annie Helsen, who is the bookkeeper
Of plaintfd. said to the defendant that
he had a note in his possession for $50
referring to the note in dispute) which
had been executed by the defendant to
Homer and which plaintiff had bought
from the latter; that at that time the
defendant did not deny the execution Of
such note, and said nothing about its
having been forged by Homer. Annie
Hiesen corroborated the plaintiff con-
cerning this conversat ton, and also tes-
tilted that Cotter never questioned the
note in dispute until after Homer had
disappeared from Sacramento George
Sellinger, an attache Of the Union Ice
Company, testified that Cotter was in
debted to him in a small sum. and that
he was told by Cotter to call upon Ho-
mer for his pay; that, in a conversation
had with Homer and Cotter, Homer
stated that he was indebted to Cotter,
having collected the wages due the lat
ter from the railroad company. This
conversation, it is claimed, occurred
just before Homer's departure from
Sacramento.
This is substantially all the evidence
that was introduced in the case. The
defendant, having denied the execu
ton of the note in dispute, had upon
him the onus of proving that the note
was not genuine, but was forged. And
it was his duty to esta bish his conten-
ton that the note was not genuine by
a preponderance of evidence. This, in
my opinion, he failed to do. While
have the very highest respect for the
opinions of those who have spent years
in the business of comparing sigma
lures, an essential part of the duties
of a banker, yet it must be conceded
that such testimony is not the most
reliable, however much experience one
has had in that line. The higher courts
have never failed to take occasion TO
say, in commenting upon testimony of
this character, that it should be re-
ceived with great caution and scrutiny
If the judgment in this case were to
be given in favor of the defendant, it
would have to be done in the face of the
positive testimony Of Annie Heisen and
the plaintiff, who declare that the de-
fendant, at least by his silence when
the note was called to his attention, ad-
mitted to them that it was his note
Neither Mr.. Miller nor Mr. Burnham
pretended to be experts upon handwrit-
ing, and, at most, could give but an
opinion. They so declared when upon
that they had had considerable expe-
rience and had made, to some extent,
study of signatures in order, as has be-
fore been stated, to protect the insti-
tutions with which they are officially
identified from loss through fraudulent
practices. Messrs. Wachhorst. Cohn
and Brown, while making no preten-
tions to being experts, have had no
little experience in this same line, and
were equally as positive in their opin-
ions that the signature to this note was
genuine. The testimony of Mr.. Sell
linger. the competency of which is ex-
tremely doubtful, though showing that
Mr.. Homer admitted that he was in
debted to Cotter. does not necessarily
prove. nor even tend to prove, that the
defendant did not execute this note.
/ 1t follows, from the foregoing, that
judgment must be given for the plain
tiff f. c. HART.
Judge Of the Superior Court, in and for
/ the County of Sacramento, State of
! California