HEILEG et al. v. DUMAS et al

Fowle and Bailey, for appellant:

I. It was allowed to be shown, despite the objection of defendant and the opinion of this Court in Heileg v. Dumas, 65 N.C. 214, that defendant, Dumas, and Angus Martin. whose name is signed first to the note were friendly — "on the best of terms,"as the witness expressed it. It is submitted that the case referred to is decisive of this the sixth point in order, and it is therefore transferred.

II.3d point. Dr. Patterson, after he had testified that the signature in question was a forgery, stated that the signature looked as if made by a nervous man.

He was then permitted by the Court to state that Dumas had the reputation of being a free drinker.

We submit that such an inquiry, even as to the fact, was calculated to mislead the jury, and is rendered doubly obtionable [optionable] when proved by reputation.

The same point conversely stated was decided in Beal v. Robeson, 8 Ired. 276.

In civil actions evidence of character of parties is not admissible unless put directly in issue by the nature of the proceeding. McRae v. Lilly, 2 Ired., 118; Bottoms v. Kent, 3 Jones 154.

III. 1st point. Admission of proof as to the genuineness of the other signatures, the only issue being as to that of Dumas, and fifth point that the other signers were men of wealth may be considered together.

Neither circumstance tended to prove that Dumas signed, and it has long been settled that it is error to receive evidence irrelevant which is calculated to mislead or prejudice the minds of the jury. State v. Arnold, 13 Ired. 184.

The cases of Holmesley v. Hogue, 2 Jones, 391, and Jenkins v. Troutman, 7 Jones 169 at p. 173, are illustrative of this rule.

IV. The 1st, 5th and 4th points. That Dr. Patterson was allowed to express an opinion that the sudden cessation in the use of ardent spirits by a free drinker would have the effect to render him nervous may be considered together as inadmissible on the ground that at best such evidence could only raise a mere conjecture that Dumas signed the note. 1. That before signing he had been drinking hard. 2. That about that time he had suddenly ceased, thus mounting conjecture upon conjecture without evidence of either fact.

This Court has repeatedly held that such evidence is inadmissible and its reception error, of which parties have a right to complain. Sutton v. Madre, 2 Jones 320; Matthis v. Matthis, 3 Jones 132.

McCorkle, contra.

I. The Judge below did not err in receiving the evidence that defendant had the reputation of being a free drinker. The witness to whom this question was put, had testified that in his opinion the signature purporting to be that of defendant's, was written by a man who was nervous; then it became pertinent to inquire into the habits of defendant as to drinking spirits, because it would be a circumstance for the jury to consider, whether defendant when under a nervous excitement from drinking, had not executed the note; besides, prior to the examination of the witness, Patterson, the deposition of the defendant had been read, and his whole character was the legitimate subject of inquiry.

II. It was competent also to prove the intimacy existing between Martin, who was according to the evidence of the defendant, Sanders, the principal of the note sued on, and defendant; it was a strong circumstance tending to show there was nothing unreasonable in the defendant's executing the note: and for the same reason it was competent to show that all the parties to the note were solvent at the time of the execution. It is not reasonable to suppose that three or more solvent men would commit forgery to procure the signature of one whose name could add but little if anything to the security of the note.

III. To have allowed defendant's counsel to have exhibited to the jury the note sued on, together with the signature of the defendant to the deposition, and let the jury from their opinion from such evidence, was liable to the objection that it was an effort to compare handwritings, which is incompetent; but to the further objection that it would have been equivalent to defendant's making evidence for himself. Exhibit such a signature as he might make to the deposition ante motam litem, with the note sued on. If this is competent, what would be incompetent?

IV. The Judge charged the jury that they must be governed by the weight of the evidence, and defendant cannot complain that his Honor instructed them that they were not necessarily in making up their verdict as to the weight of evidence to be governed solely by the number of witnesses on either side. This was competent, because otherwise he who offers the most witnesses who testify to the same matter must prevail over his adversary who offers a less number of witnesses, whose intelligence, means of forming an opinion, and freedom from bias, is far superior to that of the witnesses offered adversely. It is the credit due to evidence offered, to the facts proven, which the jury are to consider, and not the number of witnesses offered.