
    
      CLARK'S EX'S. vs. COCHRAN.
    
    East. District.
    
      June 1814.
    Whenever a signature is formally disavowed, proof by expects must be resorted to.
    The disavowal must be by the party, in writing.
    Turner, for the plaintiffs.
    In this case, the District Court gave judgment for the defendant, upon the construction of the 226th article of the Civil Code, in page 306. The plaintiffs, believing this case formed an exception to that rule, appealed from that judgment. There is a bill of exceptions to that opinion shewing the facts. This suit is founded upon a transaction, which happened at Natchez, and none of the parties to the contract reside in this state. The defendant is sued as executor and heir of his brother, George Cochran, deceased, and also as being a partner of the firm of Cochran and Douglass who, it is alledged, received into their cotton gin, a certain quantity of cotton, to be gined for the tolls, and gave receipts therefore, as was at that time customary to do. Those receipts were transferred by endorsements, and came into the possession of the plaintiffs’ testator, in the course of business. And the question to be decided in this Court is, which is the mode of proof required by law for these cotton-gin receipts. The plaintiffs offered proof, by witnesses, well acquainted with the hand-writing of each of the persons, whose names are on the papers. This is the only proof such a case is susceptible of: and is the mode practised in the courts of the country, where the papers were signed and endorsed. It is not usual to have a subscribing witness to such papers. Nor is it at all necessary to any commercial instrument and to apply the rule of the 226th article of the Code, to such cases, would be to shut the courts of this state, against all suits to be prosecuted on bills, drawn or negociated out of the state. The rules of commerce require that no other proof should be demanded, in a controversy abroad, than what was sufficient in the place where the contract was made, to establish it. Moreover, the rules of evidence in commercial cases are not so strict as in others. Courts, relaxing the strict rules of law, accommodate the evidence to the usage and course of business.
    These rules and these principles will be found in the practice of courts, and the opinions of elementary writers. The following are relied upon. Kaims' Prin. Eq. 563, 2 Strange 1127, 1 Dall. 16, 17, 2 Johns. Cases 369, 211, Peake's Ev. 50, 51, 58, 103 note (b.) and the appendix 52, 3. Cw. Co. 260, art. 7.
    But, independently of these principles, the present case, is not one, in which the rule contended for by my adversary counsel applies. The words of the law are “a person against whom, an act under private signature is produced is obliged formally to avow or disavow his signature.” And in case he does disavow it, and there be no witness to prove it, “as having seen the obligation signed” “the signature must be ascertained two persons skilled” &c. In this case the defendant has not disavowed his signature, there is nothing in the answer, pointing to that fact. The answer contains a general denial only of “all and singular the facts” &c. But the avowal required by the law is confined to the verity of the signature and this disavowal is, in our practice, what the plea of non est factum is, in the common law courts. It should be direct and positive, not by any inference, nor argumentatively alledged. And the truth of the plea should be supported by the oath of the party. The fact of signing is one well known to the party, and he ought not to be. allowed to deny it but upon his oath. If it be not his deed, he can safely swear it is not, and he will not swear, he should not be permitted to demand the proof of it. The rule of law requiring proof by experts is confined to the single case of disavowal of the signature, and upon the rule expressio unius est exclusio ulterius, does not extend to or embrace the present case- Divested of the application of the rule about experts, the plaintiffs’ cause was fully established, by legal proof and the judgment of the Court should have been for the plaintiffs. We contend, with a well grounded, confidence in the soundness of the principles have laid down, that the judgment of the District Court ought to be reversed. But whatever may be the decision in this cause, it is important that some fixed rule of practice upon the subject should be established by this Court. Misera est servitus ubi jus est vagum aut incognitum.
    
    
      Hennen, for the defendant.
    The decision of this case depends wholly upon the construction of our statute. When foreigners resort to our courts for aid, our rules of evidence and practice are not to be altered for their accommodation. Our courts, it is true, must in the construction of contracts follow legem loci; but the remedy for enforcing contracts must be conformable altogether to our own laws : so far is this principle. recognized that the limitation of the country in which the action is brought, and not that in which the contract was made or the demand arose, is to be observed, 3 Dall. 373, n. 1 Caines 402, 3 Johns. Rep. 263, 2 Mass. T. Rep. 84, 4 Wilson's Bacon's & Abridg. 472. What then is the formal disavowal required in this case by our statute ? Must it be under oath ? The plea of non est factum, at common law, need not be under oath: the disavowal of a private writing should not be more formal than the denial of a deed. And when the statute does not prescribe an oath, the court should not require it. These cotton receipts are the instruments on which the action is brought; with the proof of them it must stand or fall. The answer denies all the allegations of the petition; and consequently puts the plaintiffs to the proof of every fact required to support their claim, such denial too is sufficient notice to the plaintiffs to produce the proof required by law.
    The expediency of this rule is impugned without reason. The report of experts is not conclusive ; a jury may find contrary to it : it is no more than the opinion of witnesses swearing to their belief of the hand-writing of an individual from its resemblance to that image of it, formed in the mind by a previous inspection of it. Witnesses and experts both draw their conclusions from comparison.
    The comparison formed by experts, however, must be allowed to have the advantage in point of certainty; for the experts have an unvarying original, to which they can constantly refer for comparison, and are not perplexed with any reference to a mental image. The rule may operate with hardship in some cases, from the difficulty of procuring authentic signatures for comparison: but its certainty and safety will more than counter-balance that inconvenience.
   By the Court.

This suit was originally commenced by the deceased D. Clark, in his life-time, to which his executors have since his death become parties; the action is founded on certain receipts for cotton, said to have been delivered at a gin in the Mississippi Territory, belonging to a certain company or partnership, of which the appellee is the surviving partner and heir and executor to one of the other partners. The receipts were given in the usual form for that article, when taken in to be cleaned by owners of gins, and, by the laws of the Mississippi Territory, are negociable, and have been regularly transferred to the testator of the appellants by endorsement. On the trial of the cause in the District Court for the First District, from whence this appeal is taken, the plaintiffs in the Court below, who are here the appellants, offered as testimony the depositions of certain persons residing in the Mississippi Territory, to prove the hand-writing of those who had-signed the receipts, and also, two competent witnesses, to prove the same fact and the handwriting of the persons who have endorsed them. This testimony was objected to on the part of the counsel for the appellee, who was defendant in the District Court, because it is not in conformity with that part of our Civil Code which requires, in certain cases of instruments under private signature, that they should be verified by experts, or persons having skill to judge of handwriting ; which objection was sustained by the Judge of the Court below, and on an exception to the opinion of the Judge, in supporting said objection and refusing to receive and hear the testimony offered by the appellants, the case comes before this Court.

The only circumstance, in the cause, which requires the attention and examination of the Court is to give such a reasonable, just and legal construction to the provisions of the Civil Code, relative to this kind of proof, as may prevent them from being mischievous in their operation on the administration of justice, and for this purpose several questions have been submitted to the consideration of the gentlemen of the bar, some of whom have been polite enough to favour us with their researches and opinions, on this subject of general importance ; and the matter is now before us after learned and able discussion.

The first question to be decided is whether,, of no, the rule of evidence laid down in the Civil Code for the verification of acts under private signature, is general in its operation, and shall extend to all - kinds of private contracts in writing made between citizens of every profession and pursuit in life, so that this mode of proof must in all cases, when-the party formally disavows his signature, be re> sorted to,

2: Is the person, against whom an act under private signature may be produced, obliged formally to avow or disavow his signature, or is a general denial by a defendant or his counsel of all the allegations in the petition of a plaintiff, who commences a suit on such an instrument, sufficient to compel him to resort to proof by experts ?

3 Wa e n a contract is made out of the iuris- .... - - ■ dictional limits of the state, are the laws and customs of the state or territory where, it is made to govern, as to the kind of proof which may be admitted, if sued on in this state ?

. L As to the first question, the Court is of opinion that every rule of evidence must be general in its operation on every description of citizens, unless exceptions are made by positive law ; and that from the manner in which this rule is laid down, in 'the Civil Code, it is imperative ; and in all cases where the disavowal is made, with sufficient formality, the mode of proof by experts, or men skilled to judge of hand-writing, must be resorted to in the first instance ; but that the party offering this kind of testimony is not thereby precluded from producing any other legal evidence, which may be in his power, either in aid of, of to contradict the report of the experts.

II. In relation to the second question, it is the opinion of the Court, that the person, against whom an action is brought on an act under private signature, must, before the plaintiff can be compelled to resort to proof by experts, formally and solemnly disavow his signature in writing, signed by himself with his own proper handwriting. This we think the safest construction to give to the word formally : for, unless the disavowal is made in this way,, it Cannot be considered J \ . the formal act of the party ; and the sense and spirit as well as the letter of the law will not-be complied with. In the course of the argument, it was insisted on that this denial ought to be on oath : the Code does not positively require that it should, and we-think that judicial oaths ought not be multiplied, without absolute necessity. From what has been said on this question it will' result, that they plaintiff, when this formal denial is not made by the defendant, may, without the necessity of resorting in the firs]t instance to prove his claim by experts, produce any other legal testimony, which may be in his power to give in the cause. The same rule ought to prevail in cases when the heirs, or assigns, do not declare that they are unacquainted with the signature of the person they represent,

III. In treating of the third and last question, it is proper to observe, that we tflieve it to be admitted as a principle, in all tribunals, that the lex loci, or law of the country where the contract is made ought to govern in si;its commenced in any other country on such contracts; and it does appear by a law of the P artidas that this principle extends even to the proof of the contract, expressed in general ternas, which might perhaps be applied to the mode of proving facts, as well as to the amount of evidence pecessary to their But. it is unnecessary t® determíne", this point absolutely,,⅛ the present ease, because there is sufficiently found in ihe determination©!'the first and second questions, on. which to decide against the tipias,®» of the J,udge of the District Court.

Itr does not appear,that the receipts offered i» ewdeacem the suit were signed by ifeeparty against" whom the action is brought 5 but that he is sued ia a double kind of «capacity, both as surviving partner ©f a company which carried on the fessi-©ess *®f cleaning or gmiag cotton, in the Missis- . sippi Terrkory, and as heir' and executor -of one of &e partners, the tete CJeo. Cochran. This .creates some ■'confosion in the case, and is perhaps set wery regatan As surviving partner, if fee'signed the receipts, lie oaghtibnaalhr to have avowed or <£s~ ¡avowed his signature» this he has not done, Iffie «Sid »©t sign them, he wasmgt hound to make ⅛⅛ formal avowal .or disavowal, and in «Aerease any legal ©viflenbe which has been usually admitted in similar cases fey the tribunals of the country ©ogfe: ■ fe have been adtui&ed indas, without compelhng the appellants to resort in the first instance to áte. ,proof bycemparison uf hand-writing.

fe considered as heir and executor, ne ought to fave «declared. that fee does not know the hand-writ-iag or signature of him, whom he represeats. M being tsar spinksa £ha£ the I afce of the Distort Court has erred, in rejecting ⅛⅛ other testimony offered by the appellants in the course of the trial before him and requiring absolutely tire proof by com¡>arison of hand-writing, the judgment there rendered must be reversed.

It is, "therefore, ordered and decreed that the same be reversed and annulled and that the cause be remanded to the District Court, there to be again tried, with instructions to the Judge to admit all-legal testimony, ahd such as has been usually admitted in the tribunal of this country, without compelling the appellants to resort to proof by comparison of hand-writing, as prescribed by tire Civil Code.  