James v. Millar

26 S.C.L. 120

• Court: Court of Appeals of South Carolina
• Decided: February 15, 1841
• Status: Published

Opinion

The following is the evidence :

Richard W. Cogdell, sworn — Said he is teller of the Bank of the State ; has frequently seen defendant’s handwriting in the bank ; has seen notes on which Millar’s name was, where Boyd’s was not; thinks the name of Millar on this note is his handwriting ; would have had no hesitation in taking it as his ; he is, and was at the time of the protest of this note, notary of the bank; proves the protest; gave notice of non-payment to Millar, in person ; Millar said he was not prepared to pay it; said nothing of forgery; in presenting other notes on several other occasions, Millar referred to a memorandum.

Cross-examined — He said he never saw Millar write ; judges it is his handwriting from its similarity to other notes, which were not disputed, and which he has been in the habit of seeing in bank ; the protest was before Boyd’s death.

William B. Foster, sworn — Said he never saw defendant sign his name ; has seen his name often in bank ; should say this was his signature ; has seen his name for years past in bank; witness is discount clerk of Bank of the State.

A. C. Smith, sworn — Said he is clerk in the Union Bank; this indorsement of Millar bears the character of his handwriting; has seen notes of defendant which were admitted to he genuine ; has had such in his possession ; never saw this note before to-day.

Robert S Smith, sworn — Said he has seen defendant’s signature to notes which he knows to be genuine ; has seen him write, and should not hesitate to say that this endorsement is his handwriting ; would have taken it in business as genuine ; has received friendly notes from defendant.

* Robert Quash, sworn— Said he is clerk of plaintiffs ; recollects that plaintiff received notice of protest; he was sent to defendant to notify him ; defendant said, “ Boyd is sick, and if he would wait a few days there would be some freight from Columbia, and as soon as it came it should be arranged;” witness did not show the note to Millar.

Here closed the evidence of plaintiff.

DEFENCE.

'William Young, sworn — Said he is defendant’s only clerk; attends to all his business ; knows all the paper he has out; has charge of all his notes ; has seen Millar -write ; this endorsement is not his writing; never saw him write like this ; there are marks there which he never saw him make ; (these he pointed out to the jury;) witness kept a book of all notes of Boyd, on which Millar was endorser ; this note is not in that book.

A bundle of notes on which Millar was endorser, which had passed through bank, were here submitted to witness, to prove the signatures genuine, with a view, by comparison, to aid the testimony to disprove the handwriting of Millar. This was objected to by Mr. Yeadon. I overruled the objection, and the witness proved the signatures genuine. The witness then pointed out to the jury wherein the difference consisted.

He continued — The day that Boyd was taken sick, three notes on which Millar was endorser, became payable ; he went to Boyd’s office to ask if he was not going to send for renewals ; he met Vinro, who said that Boyd had gone home sick ; that his clerk had gone up to him, and he supposed he would attend to the renewals at night; there were protests for about $2000 more than was j ustified by his entries; this created suspicion ; went the week after and got statements from all the banks except the Bank of the State; there were several notes not on his list; he tried to get a statement from Boyd in 1839, but could not; several months before Boyd was taken sick, Millar stopped endorsing new business ; may be a year; though he continued to endorse all renewals that corresponded with the hook.

Cross-examined — He said he has been with the defendant since the fire of 183S ; was with his brother from 1832 ; began with his book of notes endorsed in January, 1839 ; about *sixty days from that time he found that he was $4000 on Boyd’s paper ; he then determined to stop; he knew what were renewals from the hook; never saw him endorse a new note for Boyd after sixty days from the 1st January, 1839 ; he said lie would not.

Cross-examined — Mr. Yeadon presented him a note to John M’Ncllage, of" Boyd, endorsed by Millar, dated 19th September, 1839, at four months, for $140, and asked him if the endorsement was genuine ; he said it was, and that it was a renewal, and referred to his book, and showed what note it was the renewal of; ho said Boyd was in the habit of sending up notes to be endorsed, marked “renewal,” and when he got them would tear that part off; Boyd did send up four or five months before his death a note to be endorsed to buy a boat, which Millar refused to endorse ; Boyd died 22d March, 1840.

Here closed the evidence of defendant.

EVIDENCE IN REPLY.

W. W. Kunhardt, sworn — Said that he held Boyd to bail for John M’Nellage, and that he released him on his giving him the note of 19th September, 1839, endorsed by Millar; this was the origin of that note.

Cross-examined — He said he got the note from Boyd ; had no communication with Millar.