King v. Donahue , 110 Mass. 155 ( 1872 )

Ames, J.

Upon the question whether the genuine signature of the demandant had been subscribed to the instrument purporting to contain her release of the right of dower, she was not to be confined in her testimony to a mere general denial. She was entitled to whatever benefit could be derived from a comparison if the disputed signature with' her genuine and unquestioned handwriting. For that purpose, she would be allowed to produce original letters or other documents, admitted or proved to bear her genuine signature, in order that the jury might make the comparison. But we do not find any case in which signatures made for the purpose of being examined have been so admitted. Stanger v. Searle, 1 Esp. 14. Keith v. Lothrop, 10 Cush. 453. Lord Kenyon gave as the reason for the exclusion of such evidence, in the first of these cases, that “ the party might write differently from his common mode of writing his name, through design ; ” and the like reason was given by Lord Denman in Doe v. Newton, 5 A. & E. 514. It is suggested in the argument that this consideration affects the weight of the evidence rather than its competency. The rule however seems to be that a signature made for the occasion, post litem motam, and for use at the trial, ought not to be taken as a standard of genuineness, and that the jury should not be troubled with the additional issue or question whether the signature so offered is written in a constrained and forced manner or not. In the language of Coleridge, J., in Doe v. Suckermore, 5 A. & E. 703, 705, “ the test of genuineness ought to be the resemblance, not to the formation of the letters in some other specimen or specimens, but to the general character of writing, which is impressed on it, as the involuntary and unconscious result of constitution, habit, or other permanent cause, and" is therefore of itself permanent. And we best acquire a knowledge of this character, by seeing the individual write at times when his manner of writing is not in question, or by engaging with him in correspondence ; either supposition giving reason to believe that he writes at the time, not constrainedly, but in his natural manner.” In Doe v. Newton, 5 A. & E. 514, it was held that no documents could be made use of for the purpose of effecting a comparison of this kind, except such as were already in evidence for other purposes of the cause. With us the rule is 18ss strict, and it is enough to say that the disputed writing is not to be tested by comparison with any but an admitted or proved fair specimen of the natural and habitual handwriting of the party. There are cases to the effect that where a witness has denied his signature to a document, he may be called upon in cross-examination to write his name in open court, in order that the jury may compare such writing with the controverted signature; but this is merely as a part of the cross-examination, and for the purpose of contradicting the witness. Doe v. Wilson, 10 Moore P. C. 502, 530. Chandler v. Le Barron, 45 Maine, 534. Taylor on Ev. § 1669.

The demandant’s signatures to receipts for her wages, upon the pay-roll, were properly admitted; but it was an error upon the part of the presiding judge to allow her signature made at the trial to go to the jury. Upon this ground, the

Exceptions are sustained.