On Rehearing.
MONROE, C. J.[4] Article 2245 (2241. of the Code of 1825), under the title “Of Acts under Private Signature,” reads:
“If the party disavow the signature, or the heirs or other representatives declare that they do not know it, it must be proved by witnesses or comparison, as in other cases.”
Article 325 of the Code of Practice (also dealing with acts under private signature) declares that:
“If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts or by a comparison of the writing, as established by the Civil Code.”
It is well settled in our jurisprudence that the ordinary mark of a person, incapable of writing, when established by legal evidence, is to be taken as his signature. Tagiasco et al. v. Molinari’s Heirs, 9 La, 512; Madison v. Zabriski, 11 La. 247; Board v. Campbell, 48 La. Ann. 1546, 21 South. 184.
In the case first above cited, it appears that, in opposition to the title (to immovable property) set up by plaintiffs, a certain counter letter, purporting to bear the ordinary mark of the person by whom it was said to have been executed, was offered and admitted in evidence, over the objections, among others, that such an instrument was invalid unless signed with the name of the maker, and that testimonial proof of the signatures of the witnesses was inadmissible as tending to establish the mark of the obligor, who, as well as the witnesses, was dead. In the course of the opinion it was said:
“The fact of the counter letter adduced in the present instance having been made in writing cannot be denied, yet its validity and genuineness depends on proof, and in all cases where these things are established by legal evidence, instruments signed by the ordinary mark of a person incapable of writing his name ought to be held as written evidence, in the administration of justice, according to the rules of evidence by which the courts of this state have been governed ever since the country became an integral part of the United States. These rules have been borrowed in great part from the English law. * * * Now, according to those rules, thus adopted, the ordinary mark of a party *109to a contract places the evidence of it on a footing with all private instruments in writing. * * *. As to what has been customary, we find testimony which goes to establish the fact that writings under private signatures, have both before and since the adoption of the Civil Code, been received as written acts, when they have only the ordinary mark of the parties, if made before two witnesses.”
And it was held, in view of the fact that the maker and witnesses were dead, that the genuineness of the counter letter could be established by parol evidence of the sig-' natures of the witnesses, and that they were persons of good character who would not attest a forgery. The case was not one in which there was a denial of signature, and, as we assume, was not regarded as falling within the provisions of C. C. 2241 (now 2245) or C. P. art. 325, since neither of those articles is mentioned by the court, and the opinion is quoted as showing that an instrument to which the ordinary mark of a person was affixed was considered by the court as upon the same footing, quoad the evidence required for its establishment, as other private instruments in writing, and that it was understood that such instruments (i. e., those to which marks were attached) were received “if made before two witnesses.”
In Plicque & Lebeau v. Labranche, reported in the same volume (9 La. 559) the codal provisions above mentioned are expressly construed and applied. The action was brought on a promissory note against an alleged indorser, who denied his alleged signature, asserting that it was forged. The trial court admitted parol evidence to the effect that the defendant had admitted that the signature was genuine. The court, through Martin, J., said:
“It appears to this court that the district judge erred in his decision. In ordinary cases, the acknowledgment of the party is, indeed, in the nature of evidence of the truth of the signature. But it is the very weakest species of evidence that may he adduced. The witness who testifies to the acknowledgment is placed beyond all danger of being convicted of perjury, and it is almost impossible to contradict him. When, therefore, a signature is specially denied by the party to whom it is imputed, that weak species of evidence, of his acknowledgment or admissions, is not allowed. The law has expressly provided the kind of evidence which may be produced to counterbalance the express denial of a signature to an obligation or act under private signature.”
Reference is then made to O. P. arts. 324, 325, and the opinion proceeds:
“The foregoing provisions of our law repel the idea that the signature of the defendant may be proved by witnesses who only testify to his acknowledgment of such signature. Article 325 of the Code of Practice, already cited, modifies and supersedes the provision in the Louisiana Code, article 2241, which declares that if the party disavows his signature, it must be proved by witnesses, as in other cases.”
In Bissell et ux. v. Erwin’s Heirs, 10 La. 524, it was said:
“We are of opinion that the court did not err, in refusing to permit the alleged receipt of Erwin, for the price and rent, to be read to the jury. The report of the experts did not sufficiently prove it to be genuine, and under the circumstances of this case strict proof should be required, according to the principles settled by this court in the case of Plicque & Lebeau v. Labranche, 9 La. 559.”
In Montelius & Fuller v. Oloman & Harrell, 16 La. 379, defendants were sued on what purported to be a partnership obligation. Harrell was cited through a curator ad hoc, who denied the signature. Oloman, , cited personally, also denied the signature. Two witnesses were permitted to testify that “Oloman admitted the note to be genuine, and that it was a partnership transaction, and that he was liable to pay the money,” and it was held by this court that the case differed from that of Plicque & Lebeau v. Labranche, that Oloman was properly condemned, and that a judgment of nonsuit was properly entered as to Harrell.
In Harris v. Patten, 2 La. Ann. 217, plaintiff sued on a private act alleged to have been signed with an ordinary mark in the presence of two witnesses, who were living,' but who resided out of this state, which, mark appears to have been disavowed, and he proved only the‘signatures of the witness-*111e$, and did not'prove that of the defendant. The court said:
“When a signature is disavowed, article 2241 (now 2245) of the Oivil Code, requires it to be proved by witnesses, or comparison of handwriting. Proving the signatures of the subscribing witnesses, satisfies neither of these requisitions.” (Italics as in the opinion.)
Segond, Agent, v. Roach, 4 La. Ann. 54, was a suit on a lost note, in which defendant set up that'it was forged.
The court, after quoting O. P. art. 325, said:
“This article was considered in the case of Plicque v. Labranche, which was an action against an .indorser who disputed his signature. The note was in existence. Evidence to prove the verbal acknowledgment of Labranche that the indorsement was in his handwriting, was offered by the plaintiff, objected to by the • defendant, and received by the court below. Upon appeal it was held, Martin, X, acting as the organ of that court, that the evidence was inadmissible. The article of the Oode, thus interpreted, is in derogation of the general law of evidence, and must therefore be strictly construed. It must not be extended beyond those ordinary cases to which it clearly applies, and which alone are to be considered as contemplated by the lawgiver. But the case before us is out of the ordinary category. Here the note has been destroyed, a circumstance not presented in any of the cases cited. But the defendant argues that, even where the note has been destroyed, it is still possible to meet the requisitions of the Oode of Practice. This is true, but it is not the whole truth. The holder of a lost note might perhaps have the good fortune to find witnesses acquainted with the party’s handwriting, who had seen the note before its destruction, or persons competent to act ¿s experts who had seen the note. But it is obvious that, in most cases, the owner would be put at a disadvantage by the destruction of the note. The range of his evidence would be much, circumscribed. He would be restricted to witnesses who had seen and examined the note before its destruction, while in cases where the instrument existed and could be produced, he would have the range of the entire parish for experts, and of the -whole state, or Union, or foreign countries, for witnesses to prove the handwriting. We cannot strain the rule of the Oode to a case thus out of the ordinary category, and where the ends of justice might be defeated by limiting the plaintiff to a class of witnesses who, perhaps, could not be found. There was therefore no error in the luling of the court below. On the merits, the case stands thus: The plea of forgery is met by the testimony of two witnesses, whose character has not been impeached. They prove the presentation of the note to the defendant after its maturity, and her recognition of its genuineness. They prove, also, that goods furnished to her plantation were the consideration of the note, and that the objection made by her to paying it, when presented, was her belief that it had been already paid. Pacts sworn to by other witnesses corroborate the statements of these two witnesses. This testimony the jury believed. It satisfied them that the note was genuine, and they found a verdict for the plaintiff. The district judge refused a new trial.”
And the verdict and judgment were affirmed.
In Chaffe v. Cupp, 5 La. Ann. 684, defendant was sued on five notes to which it was alleged that he had affixed his mark, and he suffered judgment by default to be confirmed in proof that he had acknowledged four of the notes. The signature of “the witness” to the other was proved, and it was also proved that the witness was dead. It was held on appeal (Slidell, X, dissenting) that evidence as to the character of the witnesses was unnecessary, and that plaintiff was entitled to judgment. The court said:
“In this case the defendant, sued upon a note which was genuine or forged, suffered a judgment by default to be given against him, and the evidence to be received without opposition. The evidence being before him under these circumstances, and probably knowing the parties, the district judge considered it conclusive that the amount of the note was due, as in Tagiasio’s Case, the document, being admitted, was decisive of the cause. If the judgment of the district court had been otherwise, we would not have disturbed^ it, believing it a case peculiarly subject to his decision. We cannot say he'erred, but, on the contrary, believed the note, being in evidence without objection, proved the debt. * * * ”