The Bd. of Trustees of Twp. 13 S v. Misenheimer

• Decision Date: 30 June 1875
• Citation: 1875 WL 8408,78 Ill. 22
• Parties: THE BOARD OF TRUSTEES OF TOWNSHIP 13 S, R. 3 W.v.JOSHUA L. MISENHEIMER et al.
• Court: Illinois Supreme Court

78 Ill. 22

1875 WL 8408 (Ill.)

THE BOARD OF TRUSTEES OF TOWNSHIP 13 S, R. 3 W.

v.JOSHUA L. MISENHEIMER et al.

Supreme Court of Illinois.

June Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Union county; the Hon. M. C. CRAWFORD, Judge, presiding.

Messrs. MULKEY & ANDREWS, and Mr. GEO. W. WALL, for the appellants.

Mr. R. R. TOWNES, and Mr. W. S. DAY, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is an action of debt, brought by appellants, against appellees, on the official bond of Misenheimer, as township treasurer of township 13 south, range 3 west, in Union county. Appellees pleaded jointly, traversing the several breaches of the bond assigned in the declaration, and appellee Leyerle also pleaded non est factum, verified by affidavit. Issues were joined on all the pleas, and the jury rendered a verdict, upon which the court gave judgment, for appellees.

The first question presented is, was the evidence of Hugh Andrews, in relation to the genuineness of the signature purporting to be Leyerle's, to the bond, properly excluded from the jury?

It is true, as contended by counsel for appellants, a witness may have sufficient knowledge of a handwriting to give his opinion of a disputed signature, although he may never have seen the party write. It is said in 1 Greenleaf's Evidence, sec. 577, after stating that there are two modes by which knowledge of the handwriting of another may be acquired, and giving the first, namely, by having seen the party write, “the second mode is, from having seen letters, bills or other documents purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, or acted upon them as his, the party having known and acquiesced in such acts, founded upon their supposed genuineness, or by such adoption of them into ordinary business transactions of life as induces a reasonable presumption of their being his own writings, evidence of the identity of the party being, of course, added aliunde, if the witness be not personally acquainted with him. In both these cases, the witness acquires his knowledge by his own observation of facts occurring under his own eye, and, which is especially to be remarked, without having regard to any particular person, case or document.”

But Andrews does not profess to have had any acquaintance with Leyerle's handwriting until since he was informed he denied the signature to the bond, when, as he says, to satisfy himself, he went to the county clerk's office and examined his signature to his reports as guardian, and, from a comparison of those, he formed an opinion that the signature to the bond is that of Leyerle. This is clearly insufficient to entitle him to give his opinion in evidence. His knowledge was acquired under circumstances tending to bias his mind, imperceptibly though it may have been to himself. It is scarcely probable that he did not have some impression as to the genuineness of the signature before he examined the guardian's reports. That he felt an interest in the question, is shown by the fact that he put himself to the trouble to make the examination. When, therefore, he investigated, however honest he may have believed himself to be, the natural tendency of his mind would most likely find something to confirm his preconceived opinion. In this way, important differences may have been overlooked, and slight resemblances greatly magnified. Knowledge thus acquired is vastly different from that acquired by repeatedly seeing a handwriting, and scrutinizing it, when no unfavorable circumstances exist to arouse...