Clark v. Wyatt

• Decision Date: 10 December 1860
• Parties: Clark v. Wyatt, Administrator of Clark
• Court: Indiana Supreme Court

15 Ind. 271

Clark v. Wyatt, Administrator of Clark

Supreme Court of Indiana

December 10, 1860

APPEAL from the Henry Circuit Court.

The judgment is reversed, with costs. Cause remanded.

J. H Mellett and E. B. Martindale, for appellant.

W Grose, for appellee.

OPINION

Davison, J.

The appellee, who was the plaintiff, sued William Clark upon a promissory note for the payment of $ 300. The note bears date, December 11, 1838, and was payable in the year 1842. Defendant answered bye a general denial. To which he appended an affidavit, alleging that so much of his answer as denied the execution of the note, is true, &c. Verdict for the plaintiff. New trial refused, and judgment &c.

The defendant, at the proper time, moved to suppress the deposition of Elijah Vance, taken by the plaintiff to be read in evidence in the cause, but the Court refused the motion, and he excepted.

Vance, in his deposition, says: "I am acquainted with William Clark; saw him write his signature to a power of attorney, on the 19th of October, 1834. About that time I was somewhat acquainted with his handwriting, but from the lapse of time that has intervened, I could not now state that I am acquainted with it. Judging, however, from his signature to the power of attorney, which is now before me, compared with the signature to two affidavits, which are also before me, both of which appear to have been filed in this cause, I think I am sufficiently acquainted with his hand writing, so as to leave but little, if any, doubt on my mind, but that the signature to the note attached to the complaint in this case, now also before me, is the signature of the same William Clark who executed said power of attorney, and signed said affidavits."

This deposition is said to be objectionable on two grounds: 1. The witness, being unacquainted with Clark's handwriting, was not competent to give an opinion or belief that he signed the note. 2. Nor was said witness competent to judge of the signature to the note by simply comparing it with the signatures to the affidavits and power of attorney.

As we construe the deposition, the affiant admits that he is unacquainted with the defendant's handwriting; but he grounds his belief of the signature to the note being genuine, exclusively, upon its comparison with other signatures of the defendant conceded to be in his handwriting. The general rule is, that evidence founded on a mere comparison of hands, by witnesses, will not be allowed. This is the settled rule in England, and has been adopted by the Supreme Court of the United States and, with a few exceptions, followed in the several States. 2 Ph. Ev., 4th Am. Ed., p. 609, note 483, and cases there cited. If, however, the witness has previous knowledge of the hand, from having seen the person write, or from authentic papers, derived...