Otey v. Hoyt, 48 N.C. 407, 3 Jones 407 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 407, 3 Jones 407

WALTER L. OTEY vs. GOOLD HOYT, EX’R.

Writings in general cannot be submitted to the inspection of a jury, to enable them to form an opinion as to the genuineness of another paper. When the contents of such papers are admissible, they must bo read to the jury, but not exhibited to their sight.

One who has signed a prosecution bond may become a competent witness, by the substitution of a now bond, under an order of the Court, that such new bond shall bo substituted, and the former one cancelled; and this, though such former bond is not then present in Court, to be cancelled.

In order that the Court may judge of the competency of testimony objected to, the bill of exceptions should set it forth. (Outlaw v. Ihvrdle, 1 Jones’ Rep., cited and approved.)

Action of debt,, tried before Person, Judge, at the last Spring Term of Edgecombe Superior Court.

The plaintiff declared on a bond for the payment of money, purporting to have been signed by Joseph John Norcott, the intestate of the defendant, for the sum of $1080, dated 4th day of October, 1846.

The defendant pleaded the “ general issue.”

The signature of Norcott was proved, and was not denied by tbe defendant; but it was alleged that the seal and body of the bond were written by the plaintiff, and had been written after the signing, and in the place of some former writing on the paper, which had been extracted witli chemicals. It was in evidence that the body and seal of the note were in the hand-writing of the plaintiff. One llawralicm proved- the hand-writing of Norcott, and that the latter part of his name ran into tlie scroll of the seal; that lie bad seen thirty bonds signed by Norcot't, and bis general babit in signing bis name to sealed instruments, was to avoid running bis name into tbe seal or scroll, and that be bad no recollection of ever seeing one in wbicb be bad done so.

Upon examination of plaintiff’s counsel, this witness stated, that twenty of tbe bonds of which be spoke, were shown to him yesterday, for the first time, by the defendant at his own room, and that they were all signed in tbe genuine band-writing of Norcotl. The defendant’s counsel then proposed to ask tbe witness if tbe bonds wbicb be then held in bis lxaxid were those wbicb were shown to him yesterday by tbe defendant. On objection fx’oxn plaintiff’s counsel, this evidence was exclxxded, for wbicb defexxdaxxt excepted.

Tbe defendaxit’s coxxnsel then proposed to show tbe boxxds to the witness, and to prove by him that tbe bonds were genuine, and that Noi’cott bad signed every one of them without touching the seal or scroll. To this plaintiff’s counsel objected, and the testimony was excluded. For this defendant excepted.

Mr. SoU&rthwmte was offered as a witness for tbe plaintiff, and was objected to oxi the paid of tlie defendant, because it appeared from tbe record transmitted from Pitt County, front wbicb the cause had been removed, that be was surety for the prosecution of the suit. Thereupon tbe Court permitted a now prosecution, bond to be executed by another surety, and ordered that Mr. Battorfhwaite be released from his surety-ship on tbe bond heretofore given, and that the same be cancelled. The defendant still objected, because tlie original bond was not present, and was not cancelled; but the Court allowed tlxe witness to be examined. Tbe defendant again excepted.

Dr. Blow, a witness for tbe defendant, testified that be was well acquainted with the hand-writing of Norcott; that he was very neat and orderly in his writing and signature; that his general habit in signing his name to a seal was to give himself sufficient space, so that his signature did not reach or run into the seal, and this was his habit when he signed his name and added “surety” or “administrator.” The witness further stated that he saw the bond in suit, in the Spring of 1850, and examined it carefully; that he has been in the habit of observing the hand-writing of persons generally, but upon enquiry by plaintiff’s counsel, he said he had not been engaged in any business which directed his attention particularly that way, and he could not say that he was an exjp&rt in deciding upon the genuineness of hand-writing, or possessed any particular knowledge upon the subject. The counsel for the defendant then proposed to ask him what his opinion was, formed at the time that he made the examination in 1850, and now entertained by him, as to whether the seal was made before or after the signature was written. This evidence was objected to by the plaintiff’s counsel, and ruled out by the Court. Defendant excepted.

George W. Mbrdeecd, plaintiff’s witness, testified that he had been President of the Bank of the State for five or six years, and is in the habit of examining carefully, in the course of his business, and as a part of it, notes.and papers, to detect counterfeits and forgeries, and thinks that he has acquired a knowledge of hand-writing- superior to other men generally, and -that he is a j udge of such things; and, upon cross examination, he said he could not say that he had any particular knowledge or expertness in detecting whether the seed or signaMcre of a bond was first written. The defendant objected to the opinion of Mr. Mordecai, upon the question whether the seal or signature was first written, but the Court allowed him to give an opinion; for which the defendant excepted.

There was a verdict for the plaintiff.* Judgment and appeal by defendant.

Moore, for plaintiff.

Socbncm, for defendant.

Nash, C. J.

The notes offered in evidence were properly rejected. If they could be used in the manner proposed, it would necessarily lead to a violation of the rule, that a jury cannot decide by a comparison of hand-writing. They would, if entrusted with the papers, compare the hand-writing of the document upon which the action is brought, with those given in evidence ; and not being themselves experts, supposition. would take the place of facts, upon which alone a verdict ought to be founded. More especially ought the papers offered in evidence here, to have been rejected; they were shown to the witness on the morning of the trial, and might have been selected from many others to answer the particular purpose for which they were tendered. If such a thing were countenanced in practice, it would lead eventually to. imposition on the Court, and fraud upon the opposite party. I hope it is unnecessary to say we impute no improper conduct or motive to the defendant in the present instance. "Writings, in general, are not properly submitted to tire inspection of a jury ;'if used on the trial of a case, they may be road to them. Outlaw v. Hurdle, 1 Jones’ Rep. 150. In the rejection of the papers as evidence to go to the jury for their inspection, there is no error.

The second exception is not sustained; the papers themselves being rejected, the question propounded to the witness was entirely immaterial; if they had been admitted it might have been material to identify them as the papers shown to the witness on the day before the trial.

The third exception is not tenable. Mr. Sattertlrwaite, when first tendered as a witness, was incompetent. Being the plaintiff’s security on the prosecution bond, he was disqualified by his interest. By permission of the Court, the plaintiff was allowed to file another prosecution bond with a different surety. The Court ordered the first bond to be can-celled. It is objected, that the first bond was still in force, and the Court could not deprive the defendant of his interest in it, and because the prosecution bond was on file in another Court, and not present to be cancelled. By the order of the Court directing the first bond to be cancelled, it was as effectually stript of all efficacy against the witness, Mr. Satterthwaite, as if it had been present and aaisually destroyed; and any attempt to enforce its collection by a suit at Law would have been a contempt of Court. See cases of McCulloch v. Tyson, 2 Hawks. 336; 2 E. C. L. R. 468. The first was an appeal bond, for which, on motion, the witness being interested, the appellant was permitted to substitute a new bond. If this can be done, upon an appeal, we see no reason why it should not be done in the ease of a prosecution bond. In requiring a bond in either case, the security of the opposite party is the main object; and if, when the cause is to be tried, he is secured by a competent bond, the object is answered. Mr, Satterthwaite, after the order was made by the Court, was a competent witness.

The question put to Dr. Blow by the defendant’s counsel was properly ruled out by the Court; the witness had stated that he was not an expert in deciding upon the genuineness of hand-writing, he was, therefore, not competent to' answer the question put to him.

The answer of Mr. Mordecai to the question put to him, is not set foijli, so that the Court may judge of its bearing upon the question; the exception must set out the evidence objected to. State v. Clark, 12 Ire. 151; Sutliff v. Lunsford, 8 Ire. Rep. 318. There is no error.

Pide Cueiam.

Judgment affirmed.