[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 357 It is to be observed that the defendant claimed, in his answer, that this $5,000 note was given to him for the sum found due to him on the 19th of November, 1860, upon an account stated, between him and Allen, and which account consisted of money lent by the defendant to Allen, for amounts due by Allen to him upon promissory notes of Allen held by the defendant; for money had and received by Allen belonging to the defendant; for a part of a bond and mortgage sold and assigned by the defendant to Allen; for goods, c., sold by the defendant to Allen; and for work and labor, counsel and advice rendered by the defendant to Allen. And that the note is payable one day after the death of the maker and without interest. Some other items of set-off were claimed in the answer, but no question arose upon them at the trial.
Isaac Allen died on the 21st of January, 1862, at Hyde Park, where he resided for many years upon a farm of his *Page 358 own, the management and cultivation of which was his only business. He seems to have been a man of considerable estate, as his inventory amounted in 1860 to about the sum of $40,000. He had neither wife nor children, at the time of his decease, and no one resided with him at and for some time before his death, except a woman named Mary E. Sarles, who seemed to have had the care of him, going about with him, and transacting business for him, and was of a somewhat doubtful reputation. He was eighty years of age, when he died. His eye sight had been impaired for years, and for more than one year before he died he was perfectly blind. The defendant resided in his neighborhood; he was not a professional man, and his accustomed occupation does not distinctly appear. He was frequently at Allen's house about the time the note bears date, and his relation to the deceased then somewhat intimate and confidential, for he occasionally sold the products of Allen's farm for him, paid his taxes, attended to a law suit or so in the justices' courts, collected money for him, and assisted him in the transaction of his business. Beyond these inconsiderable services, and the two receipts of the defendant produced to show that they were regarded in that light and the compensation paid therefor of a very moderate character, the defendant offered but little proof of the allegation of his answer, in respect to the money, property and services therein referred to as the consideration of the note set up. The facts disclosed on the trial would seem clearly to show that Allen was more likely to be a lender of money to the defendant than a borrower from him. And the fact of the defendant's conceded indebtedness to Allen in May and June, 1861, as indicated by the notes in suit, and the giving of these notes, afford strong ground for the belief that Allen at this time was not indebted to the defendant. And it is also to be remarked that the defendant, upon the trial, offered no evidence to show any money lent by him to Allen, any money received by him belonging to the defendant, any *Page 359 assignment or transfer of any bond and mortgage from him to Allen, any books, or account showing any entries of any items which went to make up the balance of $5,000, found due to the defendant upon the accounting; nor did he specify, or attempt to show how much was due for money, how much for property, or how much for the alleged services tendered.
Edward Burrett, a witness for the defendant, testified that in December, 1860, he had a conversation with Allen about Baker. He said Baker was a clever fellow; that he was doing business for him, or had been, and that he intended to take care of him and pay him for what he had done; that he had given him this five thousand dollar note for his services to pay him well. He said Fowler and Miss Sarles were both present, but does not know if they heard the conversation. Both these witnesses were examined by the defendant, but they do not testify to ever having heard Allen say anything about this note, or of any indebtedness of Allen to Baker. The character of Burrett was impeached on the trial more or less, and the jury may have entirely discredited his testimony. Travis, a witness for the plaintiff, testified that since Allen's death, he had heard Baker speak of this note; said that he held a note against Allen's estate for $5,000; he stated how it was drawn — one day after death. He said he drew the note and Allen signed it; that it was at Allen's house that he drew the note and Allen signed it; that they were alone, and nobody was to know it till after his death. No reason for the gift was assigned by Baker; he said Allen wanted to give him a present as he had done a great deal for him. The evidence undeniably established that the signature at the foot of the note was in the proper handwriting of Allen, and it also satisfactorily established that the body of the note was written by the defendant, and in different ink from that of the signature. The theory of the plaintiff's counsel was, that Baker had procured a slip of paper, upon which there were two signatures of Allen, and that one of them had been *Page 360 erased, and that over the other this note had been written. The plaintiff proved by Dr. Edward H. Parker, a witness accustomed to the use of the microscope, that he had examined the note and the writing thereof, through that instrument, and that the word "year," in the body of the note, had been erased, and the word "day" written upon the erasure, so as to make it payable one day instead of one year after the death of the maker; and that the body of the note, which was written in blue ink, had been written after it was signed with the name of Isaac Allen, which was written with black ink, because certain parts of the blue ink passed on and overlapped the black ink. The jury found a verdict for the plaintiff, thus affirming that the note was in fact a forgery.
We have only to consider the exceptions taken by the defendant upon the trial, and which are now urged as grounds why the judgment should be reversed and a new trial ordered. John F. Hull, cashier of a bank, testified that he was well acquainted with the handwriting of Allen, and that the signature to the note was in his handwriting. He was then asked by the plaintiff's counsel, are the signature and the body of the note written with the same ink? It is to be observed here that it was subsequently proved that the body of the note was in the defendant's handwriting, and was written with blue ink, and that the signature of Allen was written with black ink, and that the body of the note was written partly over and upon the signature, thus demonstrating, if this evidence was credited by the jury, that the body of the note was written after the signature had been written. This question was objected to, and admitted and exception taken, and the witness answered: "I think it is not." The defendant had produced the note and had relied upon it as the ground for establishing a debt against the estate of the deceased. All the circumstances connected with its inception and possession by the defendant, were legitimate subjects of investigation, and the position of the plaintiff not only authorized, but demanded the *Page 361 fullest enquiry into them. The question put to the witness was therefore eminently proper, and the answer given laid a just foundation for the subsequent enquiries, which satisfied the jury of the fraudulent character of the note. The next questions put to this witness and objected to are: 1. Does there appear to have been an erasure in this note? 2. Was the erasure made before or after the body of the note was written? 3. Are either of the edges of the note in question cut edges, or the ordinary foolscap edge?
These questions were objected to on the ground that they asked for the opinion of the witness. It is a mistake to assume that these questions called for opinion. The answers to them elicited facts, and facts material to the pending investigation. Whether there were erasures upon the note; whether they were made before or after the note was written, and whether the edges of the note produced had cut edges, or the ordinary edges of foolscap paper, were all circumstances having a tendency to make out the plaintiff's theory respecting the note. They are all facts apparent and obvious upon an inspection of the note, and it was competent and proper for the plaintiff to call the attention of the witness to them, and to establish them as evidence by his oath. As to the writing upon the erasure, or whether made before or after the body of the note was written, if that rested in opinion, it was a proper enquiry to make of the witness, who was a bank cashier, and was therefore qualified to speak as an expert. (Cowen Hill's Notes, 1418, 1419; 1 Green. Ev. § 440;Moody v. Bornell, 17 Pick. 490; Stone v. Hubbard, 7 Cush. 595; Sheldon v. Benham, 4 Hill, 131, n.b.; Cooper v.Bockett, 4 Moore P.C. Cases, 433.) In this latter case it was decided that where one line of writing crosses another an expert may testify which, in his opinion, was made first. The same remarks will apply with equal force to the question put to Harris, and objected to by the defendant. He was also a cashier and an expert, and these questions had for their object to elicit testimony tending to show that the note *Page 362 was written over the signature of Allen, and after it was written. He was competent to say, by comparison of this with other writings of Baker, whether it was more crowed, and the words more cramped and confined than his usual writing. The answers showed that it was so, and they formed an important link in the plaintiff's theory that the note was in fact written after the signature. A comparison of the hand-writing of papers introduced and relevant is permitted, to ascertain the genuineness of the one in controversy, and no reason is perceived why the same thing may not be done in the present instance, for the purpose indicated. This rule was distinctly laid down inDoe v. Newton (5 Adol. Ellis, 574), that where different instruments are properly in evidence for other purposes, the hand-writing of such instruments may be compared by the jury, and the genuineness or simulation of the hand-writing in question be inferred from such comparison. This rule received the approval of this court in Van Wyck v. McIntosh (4 Kern. 442). I see no objection to the admission of the claim made by Miss Sarles upon the estate of Allen, and her release and settlement thereof. She had testified, upon the defendant's examination, that her claim was settled; that it was not what Allen had offered her, and that she was not satisfied. She was evidently under an unfriendly bias toward the plaintiff, and it seems to have been quite proper that all the facts connected with that claim and settlement should be laid before the jury, that they might judge of the cause and extent of that bias and prejudice. It affected the defendant in no other way than as showing the influences under which the witness testified.
I see no other exceptions of the defendant calling for any further observation; and being of the opinion that they were legally overruled, I am of the opinion that the judgment appealed from should be affirmed, with costs.
DENIO, Ch. J., and WRIGHT, INGRAHAM and JOHNSON, JJ., concurred. *Page 363