
    Jesse Homer versus Daniel Wallis.
    The subscribing witness to a promissory note being out of the commonwealth, other evidence was holden to be admissible, and this before proving the hand-writing of such witness.
    Comparison of the contested signature of a party to a written contract with other writings proved to be genuine is, by the common law of this commonwealth, proper evidence.
    The procuring of a person not present at the malting of a promissory note, after wards to put his name thereto as a witness is a material alteration of such note.
    Assumpsit on a promissory note by the promisee against the defendant as promisor.
    At the trial of the action, which was had before the present chief justice, April term, 1813, the signature of the note was denied by the defendant present in Court. There was the name of one Hall, as a subscribing witness to the note; but it being proved by the plaintiff that the said Hall was absent in the state of New York, and resided, with his family, at a place called-, the plaintiff was permitted to offer the testimony of witnesses, acquainted with the hand-writing of the defendant; but they all stated that they had never seen him write his name in the manner which appeared on the note, except one, who thought it resembled his hand-writing in all but two or three letters, the signature being written in capital letters. The plaintiff then produced a note, proved to have been signed by the defendant by a witness * who [ * BIO ] saw him sign it, in which the signature was written in capital letters; and the note was permitted to go to the jury, although objected to. Some other evidence was produced, as well on the part of the plaintiff as on that of the defendant. No evidence of the hand-writing of Hall was offered by the plaintiff; but the defendant produced his deposition, testifying that he did not see the defendant sign the note, and did not put his name thereto as a subscribing witness; but that the plaintiff, a long time after the date of the note, brought it to the witness, and requested him to sign his name as a subscribing witness.
    Upon the whole of the evidence, the judge instructed the jury that, if they believed and were satisfied, from the whole view of the case, that the defendant made and signed the note declared on, their verdict must be for the plaintiff; and they returned their verdict for the plaintiff accordingly.
    The defendant moved for a new trial, —1. Because no evidence ought to have been admitted, for want of the testimony of the sub scribing witness; 2. Because a comparison of the hand-writing
    between the signature proved to be genuine and the one in trial was not legal evidence ; 3. Because the act of procuring the signature of the witness’s name to the note, by the plaintiff, after the making of the note, and in the absence of the promisor, rendered the note void.
    
      Mills,
    
    in support of the motion, contended that, as the subscribing witness was not out of the knowledge or reach of the plaintiff, he was bound to produce him or his deposition, as the best evidence in his power; and while the best evidence was kept back by him, none other could by law be received. If, however, neither the witness nor his deposition is required, still there should have been proof of his hand-writing; and, until this was proved, evidence of the hand-writing of the defendant was not admissible.  The cases [ *311 ] * are somewhat variant on the point; but in none of them has proof of the hand-writing of the subscribing witness been dispensed with, although in some cases that of the party may have been.
    Further, evidence of similarity of hand-writing, whether in civil or criminal cases, is not to be received. 
    
    The procuring the signature of the witness in the manner testified by him makes the note void. It was a material alteration of the instrument, as it would give an additional and false credit to it, and as it took the promise out of the statute of limitations. 
    
    
      Dickinson, for the plaintiff,
    insisted that this was not a material alteration of the kind that had been held to avoid an instrument. The name of the witness made no part of the contract: it was merely evidence of what might be proved as well without it. None but material alterations will vitiate a simple contract not under seal.  The cases in the books are principally of deeds, concern ing which different rules apply."
    
      
      
        7 D. & E. 265, Barnes vs. Trompowsky.— Ibid. 266, in notis, Wallis vs. Delancey. — 5 D. & E. 371, Swine vs. Bell & Al. — Doug. 93, Coghlan vs. Williamson. - l B & P 360 Adam & Ux. vs. Kers.—2 East, 250 Prince vs. Blackburn.
    
    
      
      
        Peake’s L. of Ev. 102. —1 Esp. Rep. 14.
    
    
      
       11 Co. 27, Pigot’s case. —4 D. & E. 230, Master & Al. vs. Miller.— 5 D. & E. 367. — S. C. 10 East, 431, Knill vs. Williams. — 9 East, 190, Cardwell vs. Martin
      
    
    
      
       6 Mass. Rep. 519, Hunt, Admr. vs. Adams.
      
    
   Parker, C. J.,

delivered the opinion of the Court.

Several objections were made at the trial, which, having been overruled by the judge, are now made the ground of a motion for a new trial.

It was first objected that, as there was the name of a subscribing witness to the note, he ought to have been produced, as the signature was denied; and that no other evidence; was competent in default of this. But it appearing from the report that this person was absent and out of the commonwealth, we think it was right to suffer the cause to be tried upon other evidence.

It was next objected that the hand-writing of the subscribing witness ought to have been proved before the plaintiff should have been permitted to resort to other evidence. But as the instrument in question is good without a subscribing witness, we do not think this strictness necessary, however it might be in relation [ *312 ] to deeds or instruments under *seal, where something more is necessary to be proved than the mere signature of the party,

In the third place, it was insisted that comparison of hand-writing is in no case legal evidence ; and that, it being admitted in the trial of this cause, a new'trial ought to be had.

Whatever doubts there may now be in England as to this species of evidence, — for in former times it was holden admissible, and has never yet, to our knowledge, been absolutely settled otherwise, — we have no doubt that it has become, by long and invariable usage in this state, competent evidence here. It has been once or twice questioned at nisi prius, in consequence of an observation in Peake, but has never been made a serious question of. Indeed, we have no doubt that a comparison, by the jury, of the contested signature with other writings proved to be genuine is, by the common law of this commonwealth, proper evidence. It may frequently be unsatisfactory, but sometimes it may be decisive. At any rate, like all other evidence, it is to be weighed with discretion by the jury,

Upon the remaining objection, however, we think a new trial ought to be granted, although at first we doubted.

If the testimony of the person whose name appears on the note as a subscribing witness is true, he never saw the note signed by the promisor, nor subscribed it himself as a witness until many days posterior to the date; and his name was there by procurement of the promisee, to give a validity, as he supposed, to the note, which it had not at the time it was signed by the promisor. We were inclined to think that this act, although unwarrantable, was not a material alteration of the note, or, indeed, any alteration at all; because a promissory note need not have a subscribing witness.

But, upon further consideration, we think it a material alteration. Upon the question before the jury as to the signature of the promisor, the name of a subscribing witness present at the time probably had considerable influence. Further, as a distinction is made, in our statute of limitations, between notes with and those without a subscribing witness, it cannot be considered an immaterial [*313] alteration to * cause the name of a person to be placed on the note as a witness, when he was in no respect a witness to any part of the transaction. The verdict is to be set aside, and a new trial is granted, 
      
      
         The rule is inflexible, and applies to all attested writings whatsoever. — Doe vs. Dumford, 2 M. & S. 62.— Higgins vs. Dixon, 2 Stark. 180- —1 Phill. Ev. 7th ed 464, 465.
     
      
      
         Hall vs. Huse, 10 Mass. Rep. 39. — Salem Bank vs. Gloucester Bank, 17 Mass. Rep. 1.—It is an established rule of evidence in England, that hand-writing cannot be proved by comparing the paper in dispute with any other papers acknowledged to be genuine. — 1 Phill. Ev. 490, 7th ed. — Peake's Ev. 155, 5th ed. — Roscoe, 68, 69, 2d ed. — But in cases where the antiquity of the writing makes it impossible for any person to prove it from actually having seen the person write, and where the instrument acquires a degree of authority from the place in which it is found, the evidence of a man who has had opportunities of making himself acquainted with the character, has been admitted. It is otherwise, however, when there is no proof or presumption in favor of the genuineness of the document. — 1 Phill. 492. — Peake, 155. —Roscoe, ubi sup. — So witnesses have been permitted to testify from knowledge acquired from correspondence with the person whose hand-writing is in dispute in the course of business.—Peake, 154. — Phill. 486. — Roscoe, ubi sup. — In these cases, the comparison is made by the witness, who gives the result of his judgment, and not by the jury. — See Titford vs. Knott, 2 Johns. Cas. 211. — Jackson vs. Van Deusen, 5 Johns. 144. — Olmstead vs. Stewart, 13 Johns. 238.— The State vs. Allen, 1 Ruf. 6.—Haskins vs. Stuyvesant, Anth. N. P. 91. — Jackson vs. Murray, Anth. 77.— Commonwealth vs. Smith, 6 Serg. & Raw. 568. — Johnson vs. Daverne, 19 Johns. 134 — Duncan vs. Beard, 2 Nott & M'Cord, 400.
     
      
      
        Stat. 1786, § 5, c. 25.
     
      
      
        Wright vs. Wakeford, 17 Ves. 454. — 4 Taunt. 214. — Doe vs. Peach, 2 M. & S. 576. — I Preston’s Abstr. 278, 280. — 2 Chance on Powers, 932, 966. — Knill vs. Williams, 10 East 431. — M’Intosh vs. Haydon, 1 R. & M. 362. — Cowie vs. Hatsall, 4 B. & A. 197.
     