Rogers v. Ritter
ERROR to the Circuit Court for the District of California; the case being this:
Rogers brought ejectment against Ritter in the court below to recover a lot of land in San Francisco, known by the name of Yerba Buena. The plaintiff having given in evidence various deeds, and rested, the defendants offered a writing, dated Yerba Buena, December 5th, 1845, purporting to be a petition by one Briones for the grant of the lot, under which was written an instrument dated December 7th, 1845, purporting to be a grant of the lot by 'the citizen Jos e de la Cruz Sanchez, justice of the peace of the jurisdiction.' The 'grant' was objected to on the ground that the name of Sanchez was forged. To prove its genuineness, the defendant called three witnesses. One Sears, who had been clerk in the recorder's office of San Francisco for eight years, and having the especial charge of the records; R. C. Hopkins, who had resided in California for fourteen years, had had charge of the Spanish archives in the office of the Surveyor-General of the United States for California for nine years, 'whose business called upon him to investigate questions of the genuineness of documents,' and who 'thought that he had a facility from his profession of detecting writing which was not genuine;' and one Fisher, who had been in California for fourteen years, and was secretary, interpreter, and custodian of the archives for over four years, and until its expiration, of the land commission of the United States, which sat in California under the act of March 3d, 1851.
In order to lay a foundation for his competency each witness, as called, was requested to state whether he was acquainted with the handwriting of Sanchez, and to give his means of knowledge. Each and all answered that they were familiar with it, and told how they knew it.
Sears had frequently seen it in his office, and had, many times, made certified copies of the papers to which it was attached, for the use of the courts, and knew it to his own satisfaction. In speaking of it and the handwriting of another person, he said, 'I have seen so many instruments and papers passing through my hands that these signatures (naming them) are like household implements with us.' But he had not corresponded with Sanchez nor actually seen him write.
Hopkins had examined the correspondence of Sanchez, while justice of the peace, with the governor, and other papers in the archives to which his signature was affixed, quite often, and conceived himself, therefore, well acquainted with it; 'I think,' was his testimony, 'no one living is so familiar with these California archives as I am.' But he had not corresponded with Sanchez nor actually seen him write.
Fisher testified that he thought that he would know the signature of Sanchez, because he had the custody, during the whole term of the board of land commissioners, of all the depositions taken by them, and acted as interpreter for those who could not speak the English language. The party making the depositions was required, as the witness testified, to sign them after one of the commissioners had administered the oath. Then they passed into Fisher's hands, as secretary, who indorsed them and put them among the papers of the case. Sanchez's testimony with many others, was taken, and, although Fisher could not swear he had actually seen him write his name, he believed he had, and, at any rate, he should know his signature from having seen it to the depositions.
The Circuit Court, after the witnesses had stated the manner in which they formed their knowledge of the handwriting of Sanchez, allowed them-exception being duly taken-to testify whether his signature to the grant in controversy was genuine or not. And they testifying that they believed it to be genuine, the grant was allowed to go to the jury, no objection being taken to it from the fact of its purporting to be made by a 'justice of the peace of the jurisdiction,' A. D. 1845.
Verdict and judgment having gone for the defendant the case was brought here.
It was one incident of the trial that Sanchez himself, who was alleged to have made the grant, swore that though he had been 'a justice of the peace of the jurisdiction' in 1845, he had never made this grant nor any grant of the lot in controversy; as it was another that Hopkins, who was examined to rebut the evidence of Sanchez, testified that he 'knew it to be generally the case, or sometimes the case, that in regard to the genuineness of the signatures and acts of officers of the old Mexican government, the true test is not what they will swear to, but the testimony of experts.'
Messrs. M. Blair and F. A. Dick, for the plaintiff in error; plaintiff also below.
1. The so-called grant purported to be by a 'justice of the peace of the jurisdiction.' It is a fact shown by various laws of Mexico, by the history of the Departmental Assemblies of California, and by the acts of the governors of California, and by judicial decision,  that no such officer had power to grant land after the end of the year 1843. It was a right of the alcaldes of the city of San Francisco. The grant, therefore, even if genuine, should have been excluded from the jury.
2. The court below erred in admitting what was but the opinion of Sears, Hopkins, and Fisher, the defendant's witnesses, as evidence that the signature of Sanchez was genuine. The 'knowledge' of the signatures which these witnesses had was acquired, not from having seen Sanchez write, nor from having corresponded with him, but from seeing writing supposed to be his, and from nothing more. The testimony was, in truth, but a comparison of handwritings, and did not render opinions of the persons so comparing the handwriting, legal evidence. 
There should the less willingly be a departure from ancient rules of caution, as Sanchez swears that the signature is not genuine.
Mr. Justice DAVIS delivered the opinion of the court.
^1 Cohas v. Raisin, 3 California, 449; Hubbard v. Barry, 21 Id. 325.
^2 Phillips's Evidence, 595-613, and notes, 480, 481, and 483; 2 Starkie on Evidence, 512-518; 1 Greenleaf on Evidence, §§ 577 and 578; Strother v. Lucas, 6 Peters, 767; Graves v. Hunter, 2 Carrington & Payne, 477; Goldsmith v. Bane, 3 Halsted, 87; Thatcher v. Goff, 11 Louisiana, 94, 98.