Tunstall v. Cobb
| Decision Date | 08 December 1891 |
| Parties | TUNSTALL v. COBB et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Granville county; JAMES C. MACRAE Judge. Reversed.
Action in ejectment by R.A. Tunstall against Richard Cobb, tenant of S.B. Hayes, who was allowed to come in and defend as landlord. Defendants had judgment, and plaintiff appeals.
In ejectment, the genuineness of plaintiff's signature to an indorsement on the deed under which he claimed by which he relinquished all right and title to the deed was sought to be shown by comparison with an exemplar by an expert witness. What purported to be plaintiff's signature to a bond on a capias, not in this case, was introduced, and a witness testified that it was plaintiff's handwriting and genuine. Held, that the proof of the genuineness of the specimen offered was insufficient for its use as a basis of the expert testimony.
Batchelor & Devereux and L.C. Edwards, for appellant.
A.W Graham, for appellees.
In the progress of the trial it became material to show that the subscription of the plaintiff's name to a writing indorsed on a deed was his genuine signature. A witness had testified that what purported to be the plaintiff's signature to a bond indorsed upon a capias, not connected with this action, was in his own proper hand writing, and genuine. On the examination of the cashier of a bank, who had qualified as an expert, defendants' counsel proposed to ask him to look at the signature on the capias, and then to the writing indorsed on the deed, which was in evidence, and compare the handwriting. This the witness was allowed to do despite the objection of the plaintiff. Three reasons are given for excluding as incompetent a comparison by an expert witness of a signature or writing, not admitted to be genuine or connected with the case on trial, with a signature or writing which has been offered in evidence, where the genuineness of the latter is drawn in question: (1) There is danger of fraud in the selection of writings offered as specimens for the occasion. (2) The genuineness of specimens offered may be contested, and thus numberless collateral issues may be raised to confuse the jury, and divert their attention from the real issue. (3) The opposing party may be surprised by the introduction of specimens not admitted to be genuine, and for want of notice may fail to produce and offer evidence within his reach tending to show their spurious character. 1 Greenl. Ev. §§ 578-580; Fuller v. Fox, 101 N.C. 119, 7 S.E. Rep. 589; Outlaw v. Hurdle, 1 Jones, (N.C.) 150; Tuttle v. Rainey, 98 N.C. 513, 4 S.E. Rep. 475; Pope v. Askew, 1 Ired. 16.
A comparison of hand writing is in some states permitted to be made by the jury or experts, and in others only by experts in the presence of the jury. Where a witness has acquired a knowledge of the person's writing, he compares a disputed signature or writing with an exemplar in his own mind. But when he testifies as an expert he must first be furnished, as the basis of his testimony, with some specimen, the genuineness of which may be insisted on before the jury. The law was finally settled in England (in 1854) by 17 & 18 Vict., which provided that a disputed writing may be compared by witnesses, in the presence of the jury, with "a writing proved to the satisfaction of the judge to be genuine," and both may be submitted to the jury. It seems that there is no statute in any of the states which, like the English law, empowers the judge to determine the quantum of proof necessary to establish the genuineness of another specimen placed in juxtaposition with the disputed writing. But there is a great diversity in the rulings of the courts of the various states as to what is sufficient proof of the genuineness of a writing to constitute it a standard for comparison. In some of the states only specimens admitted to be genuine, or filed as genuine, by the party whose writing gives rise to the controversy in the records of the action involving it, are admissible as a criterion for testing the disputed writing, while in others it is competent to create a standard of comparison by offering proof of its genuineness. See 9 Amer. & Eng. Enc. Law, pp. 279-290. In North Carolina it seems to be settled law that an expert, in the presence of the jury, may be allowed to compare the disputed paper with other papers in the case whose genuineness is not denied, and also with such papers as the party whose handwriting gives rise to the controversy is estopped to deny the genuineness of, or concedes to be genuine; but no comparison by the jury is permitted. Pope v. Askew, 1 Ired. 16; Outlaw v. Hurdle, 1 Jones, (N. C.) 150; Otey v. Hoyt, 3 Jones, (N. C.) 407; Yates v. Yates, 76 N.C. 142; Fuller v. Fox, 101 N.C. 119, 7 S.E. Rep. 589. It will appear from an examination of the authorities that, while this rule differs to some extent from that adopted or formulated by the courts of other states, it seems nevertheless to be definitely settled. 9 Amer. & Eng. Enc. Law. p. 285, and note 4. The tendency now seems to be to authorize by statute a comparison by witnesses and juries of disputed writings with others whose genuineness is to be established in some manner pointed out by the law. The paper offered as an exemplar or standard of comparison purported to be a "bond and capias, where the signature of Robert Tunstall had already been proven on the trial." It does not appear from the statement of the case whether what purported to be the bond and capias purported also to be records of the superior court of Granville, or of some other court, but only that the "paper [capias, with bond indorsed] has no connection with this case." Robert Tunstall had not admitted the genuineness of the bond or capias, and it constituted no part of the record of the case on trial, nor are we informed where it purported to belong. It does not appear whether Robert Tunstall's name purported to have been written as an obligor or a witness to the bond, or as an officer who served and returned the capias; and it is obvious that we cannot declare that he was estopped to deny a signature when we do not know to what it was appended. So that the genuineness of what purported to be the signature of Robert Tunstall, offered as an exemplar for the expert witness, was proven, if at all, only "by a witness" examined in the case. In Yates v. Yates, supra, the signature of one Eller to a deposition offered in evidence as genuine by one party, was compared by an expert witness, at the instance of the other party to the action, with the disputed signature; and in Fuller v. Fox, supra, it was declared, in effect, that even that comparison could not have been made by the jury. "A jury is to hear the evidence, not see it." Outlaw v. Hurdle, supra. It appeared, therefore, that the testimony offered, not being admitted to be genuine, or connected with the case, was amenable to all of the objections mentioned by Mr. Greenleaf, supra. Where courts have established the general rule that a comparison of handwritings is to be excluded, the usual exception, as laid down by the highest authority, (1 Whart. Ev. § 713,) is that "when a writing proved to be that of the party whose signature is in litigation, is already in evidence, having been put in for other purposes, then it is admissible to resort to this writing in order to determine the genuineness of the litigated instrument." In support of this proposition, Dr. Wharton cites cases decided in those courts, that have opened the door much wider than this for the allowance of such comparisons, even by experts. But, applying even this rule to our case, it is not pretended that the bond and capias were offered or admitted for any other purpose than to compare the signatures of Robert Tunstall, or one of them, with that on the back of the deed. It is manifest that the rules adopted in most of the states, prior to the passage of any act regulating the comparison of handwriting, were, as mentioned by RODMAN, J., in Yates v. Yates, supra, more liberal than that laid down by this court. But we do not feel at liberty to disturb the settled practice. It is the province of the legislature to determine whether it is best to alter or establish rules of evidence.
Both parties claim title under one Peter Hayes, who on the 6th of March, 1866, conveyed the land in dispute to the plaintiff Robert Tunstall. After...
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Fourth Nat. Bank v. McArthur
... ... genuineness or otherwise of the writing in dispute." ... Before ... the enactment of this law, this court held, in Tunstall ... v. Cobb, 109 N.C. 316, 14 S.E. 28, and other cases, that ... the investigation must be restricted to the writings that are ... genuine and ... ...
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Martin v. Knight
...regard to handwriting, and the standard of comparison, is settled by a number of well-considered decisions; the last being Tunstall v. Cobb, 109 N.C. 316, 14 S.E. 28. While there was a dissenting opinion in regard to application of the law in that case, the court was unanimous as to the gen......
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Vaught v. Williams
...if sufficient to sustain an action as plaintiffs, would be equally effective as a defense to prevent a recovery. See Tunstall v. Cobb, 109 N.C. 316, 14 S.E. 28, in a paper not under seal, relied on as a release, was treated as a contract to convey, and Flowe v. Hartwick, 167 N.C. 452, 83 S.......
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State v. De Graff
... ... of this testimony are so fully discussed in the elaborate ... opinion of this court in Tunstall v. Cobb, 109 N.C ... 316, 14 S.E. 28, that it is only necessary to refer to it as ... decisive authority as to the qualification of these ... ...