The verdict of the jury was rendered on conflicting evidence, and is conclusive on the questions of fact in the case.
The only questions before the court are those arising on the exceptions to the rulings of the court on the trial as to the admission or rejection of evidence. They will be most conveniently examined in the order in which they are stated in the case.
Hull, cashier of the Fallkill Bank, a witness on the part of the defendant, was asked, on cross-examination, whether the signature and body of the note were written with the same ink. The defendant's counsel objected to the evidence on the ground that it called for the opinion of the witness, and was improper. The objection was overruled, and the defendant's counsel excepted.
If there was in fact a difference in the color of the ink used in writing the body and signature of the note, it might be quite material upon the issue as to the genuineness of the note. If the note was written at the defendant's house, on the day it was signed, and the intestate had but one bottle of ink, and that was black, and the body and signature were written in inks of different colors, — it would be a fact tending to cast suspicion on the note if not to prove it a forgery. The subject matter of the inquiry being material, it only remains to inquire whether the witness was competent to testify to it. If it was a matter which was to be determined by mere inspection of the paper, the jury were as competent to pass on the question of color as the witness. But if it involved any peculiar skill to detect the difference, then the opinion of an expert was competent.
I think we may take it for granted — in the absence of any allegation to the contrary, or objection to the evidence until it was shown that the witness had skill in the detection of forgeries — that a cashier of a bank is an expert within the rule that permits experts to give opinions upon matters peculiarly within the branch of science or art to which their skill relates. A cashier is an expert in regard *Page 364 to handwriting, by reason of the great amount and variety of it which comes under his observation, and because of the great care which such officers are required to exercise in order to avoid the numerous risks which banks incur in having their own notes, and those which they are in the practice of using daily, forged and counterfeited. Entering into the question of forgery, not unfrequently, is the question whether the ink, with which the note that is the subject of investigation is written or printed, is of the same color of the genuine notes, or whether the signatures and the body are of the same color or of different colors. It is also true that the color of ink is affected by lapse of time; some becoming darker and some lighter. An expert in the detection of counterfeits is able to appreciate these changes, and they may be quite obvious to him, while to the jury they may be wholly unappreciable.
I am, therefore, of opinion that it was competent to ask the witness the question put to him, and the objection was properly overruled.
The next question objected to by the defendant's counsel was, whether there appeared to be an erasure upon the note. The objection was overruled, and the counsel excepted.
The observations already made apply with some force to the question now under consideration. But there is another which I omitted to allude to in examining the previous question and objection, which applies to both, and that is this: The party assailing a note as forged or counterfeited, has the right to have a description of it incorporated in the record, so that the court of review, which does not usually have the original paper before it, may be informed as correctly as possible in regard to its appearance. As to all matters apparent on the face of the note, a jury are informed by mere inspection; but that information can only be got into the case through witnesses called to describe its appearance. Hence a witness with the paper before him may be asked as to the condition and appearance of the paper, and such facts are not opinions. An expert, on the other *Page 365 hand, while he may testify to the same matters, yet his peculiar province is to speak of matters connected with the paper, which it requires science and skill to discover. On either ground I think the evidence was competent.
The next question objected to by the defendant's counsel was whether the erasure was made before or after the body of the note was written? The objection was overruled.
For the reasons already suggested, I think this question competent.
The next question, whether the edges of the note were cut, or the ordinary foolscap edge, was competent for the same reason. It was descriptive of the note, and either party had the right to have a description of it in the case.
Harris, a witness, produced on the part of the plaintiff, testified that he was cashier of the Merchants' Bank, and that he knew the defendant's handwriting. Five papers, being notes and receipts, were then shown to him, and he said they were also the defendant's handwriting, and these papers were, as I infer from the case, put in evidence, being numbered 1, 2, 3, 4 and 5. He was then asked to state in what respect the character of the handwriting of the $5,000 note, differed from the receipts and notes shown to him? This question was objected to by the defendant's counsel as improperly asking for the comparison of hands and as irrelevant.
It would seem from the evidence given in answer to this and other questions that the object of it was to show that the $5,000 note was not written in the defendant's usual manner, but the letters were smaller and more crowded; the plaintiffs' thereby intending to satisfy the jury that the note was written over a signature of the intestate and was not a note signed by him, with knowledge of the character of the paper thus signed by him. It was competent to prove this fact. The question put was understood by the witness as calling for evidence bearing on the view of the case just suggested. The evidence called for was not therefore immaterial. *Page 366
But the question called for a comparison by the witness of the $5,000 note with the five papers put in evidence, thus assuming that these papers were fair specimens of the defendant's style and manner of writing notes and receipts. I can perceive no objection to asking the witness whether the writing in the $5,000 note was larger or smaller than Allen's usual hand; nor whether he was accustomed to crowd his letters and words, or to leave considerable space between. These are facts any one acquainted with his hand writing could testify to. But the complaint is that the witness was called on to speak not from his own knowledge, but from comparison with other writings.
It has been held that a witness cannot be permitted to testify to his opinion of hand writing from comparing that of the paper in question in the suit with that of other papers, proved to be genuine, unless the papers with which the comparison is to be made are in evidence in the cause; then the papers thus in evidence may be given to the jury, in order that they may, by comparison, determine a conflict of evidence in relation to the genuineness of the hand-writing in issue. (Van Wyck v.McIntosh, 14 N.Y. 439; Ellis v. The People, 21 How. Pr. R. 356; 4 Bro. 442; 5 Ad. E. 544.)
The comparison proposed in this case was not for any such purpose. The body of the note was concededly in the defendant's hand writing — that of the signature in the intestate's. The comparison proposed was however just as improper as if it had related to the hand writing. The question was improper. But it was not answered. The witness answers from his own knowledge of the defendant's hand writing, and not from any comparison of the $5,000 note with the notes and receipts exhibited to him. The defendant was not prejudiced by the question, and the error has not injured him.
There were three other exceptions taken to questions put to this witness, which were overruled. These questions related to whether the words in the note in question were *Page 367 more or less crowded than the defendant's usual writing; whether two kinds of ink were used in writing the note — one kind in the body and another in the signature; and how the color of the ink attempted to be erased compared with the color of that in the signature.
It is impossible to say from the case whether these questions called for the opinion of the witness as an expert, or merely a description of the appearance of the note. If the former, the witness was an expert, and competent to give an opinion. If the latter, then a description of the note, in all the respects referred to in the question, was competent.
Evidence of the claim of the witness, Mary E. Sarles, against the estate of Isaac Allen, and the papers accompanying the same, was incompetent, and should have been rejected. The dealings between the witness and the intestate were wholly irrelevant to the issue between the parties then before the court. They could be used only to affect the credibility of the witness, if they were of a nature to produce that result. The only way they could be used against her for that purpose was by an examination of her in reference to such dealings. But they being irrelevant, her answers were conclusive on the plaintiff. In order to attack her reputation, otherwise than by her own oath, evidence that her character for truth and honesty is bad must be given. It was not competent to show that she had been guilty of perjury or other specific crime, for the reason that a witness is not presumed to be prepared to meet evidence of particular criminal or immoral acts, but is presumed to be at all times prepared to meet and resist attacks on his general character and conduct. (1 Cowen Hill's Notes, 766.)
The papers relating to the claim against the estate, when received, would prove or have a tendency to prove that the witness had made a dishonest claim against it, or that she had been guilty of perjury in verifying it, or both. These facts, if facts they were, could not be proved in any *Page 368 other way than by her own oral evidence, and that evidence could not be controverted.
The defendant, on the direct examination of the witness, gave no evidence that could form a basis on which to rest the admission of this evidence.
When the defendant closed the first examination of the witness, he had not alluded to her claim against the estate. The plaintiff's counsel, at the close of the cross-examination, alludes to it for the first time, by enquiring of her how much she had got out of Allen's estate. On re-direct examination, the defendant's counsel proved by her that her claim was settled, but what she got was not satisfactory to her, as it was not as much as Allen offered her. She said she went to Allen's because he came for her, and promised to do better by her than she could do for herself; and that he had given her two notes of $500 each.
On re-cross-examination the plaintiff's counsel inquired of the witness what the amount of her claim against the estate was, and she replied she did not remember; and thereupon the papers relating to it were offered and received in evidence.
This case is not within the rule laid down at the last term in the case of Jeffards v. The People. In that case the mother of the prisoner was examined on his behalf, and on her direct examination testified that she was the widow of the person for whose murder the prisoner was then on trial. The district attorney, to contradict her on this point, offered in evidence an affidavit made by her some years before the trial, in which she swore that she was then the wife of a person named by her; and he also offered a deed signed by her as the wife of the same person; and these papers, with other evidence given on the trial, proved that she could not be the widow of the deceased. This evidence was received under the objection of the prisoner's counsel, and this court held it admissible, on the ground that the evidence of her relation to the murdered man, was not *Page 369 collateral to the issue, and it was therefore competent to contradict her.
The evidence of the claim, c., in this case, contradicted nothing the witness had sworn to on either her direct or cross-examination; and it could only operate by way of impeachment, and for this purpose specific acts of misconduct are not admissible. (1 C. H. Notes, 766.)
Evidence of the defendant's habit of carrying an inkstand at any time, was not admissible. The fact to be proved was that he had one with him on the day the note was drawn, and his habit to have one was not legal evidence that he had one at that time. It is not as convincing proof of that fact as evidence of the habit of a usurer to take usury, is that a contract made by him is usurious; and evidence of such a habit has been held to be incompetent.
The judgment should be reversed and a new trial granted, with costs to abide the event, by reason of the admission of the illegal evidence as to the claim of the witness Sarles against the estate of the intestate.
SELDEN, J., was also for reversal. HOGEBOOM, J., did not vote. Judgment affirmed. *Page 370