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Phoenix National Bank v. Taylor.

bank could and did sign her name. She claims that she learned to write her name after she returned from Ameri. cus, Ga., and that she was taught to do so by copying from envelopes addressed to her.

It is to be noted that it is the contention of appellant, and of its witnesses that appellee signed the name “Carrie Taylor" to the check in controversy. One of the methods of proving the genuineness of a questioned signature is by comparing its handwriting with other and known and admitted handwritings of the disputant. In Strong's Ex’rs v. Brewer, 17 Ala., 706, the question was whether an obligation was signed by Isaac Brewer by making his mark in the shape of a cross, his name being written at length by some other person. To prove the execution of this obligation, the plaintiff introduced his son as a witness, who testified to the handwriting of his mother, and also stated that he knew the mark of his father, Isaac Brewer, and the mark attached to the foot of the instrument he believed to be his father's mark. The defendant objected to this mode of proving the instrument on the ground that a mark, differing from an ordinary signature, could not be proved in the manner proposed. But the objection was overruled by the court. Said the Alabama supreme court, by Chief Justice Dargan: "The general rule, which admits of proof of the handwriting of a party, is founded on the reason that in every person's manner of writing there is a peculiar prevailing character, which distinguishes it from the handwriting of every other person, and therefore that one who knows the handwriting of the party is competent to testify to it.” The court further said: “The degree of weight to be attached to it de pends not only upon the character of the witness, but also upon the opportunity he has had of acquiring a knowledge of the party's handwriting. It may be more difficult to ac

Phoenix National Bank v. Taylor.

quire a knowledge of a simple mark, by which an illiterate man executes a deed, than the knowledge of the handwriting of one who can write his name in full, but we can not perceive why it may not be done. In some instances the peculiarity may be as strong as that which marks the charicters of one who can write, and in other instances not, perhaps, so great; yet in all, we apprehend, would be found something distinct and peculiar, which would enable one who had frequently seen the party make his mark to know it." In Thompson v. Davitte, 59 Ga., 472, the attesting wit. ness to will could not write his name, but made his mark. The question arose whether he was competent to identify the paper as the one attested by him. The court instructed the jury "that the mark made by a witness in attesting a will need not have any peculiarity about it, but any mark is sufficient if the witness, when called to testify, can swear to the mark." The court said: “The Code pronounces a mark sufficient on the sole condition that the witness shall be able to swear to it. This is all the heraldry of the matter. Nothing like a system of crests or bearings is contemplated, not even any special hook or claw on which the mind can hang recognition. As best it can, the memory may lay hold, and hold on, and the conscience may swear to it. A court can not declare any peculiarity necessary where the witness needs none. It is not improbable that those who make marks for default of skill in making letters have ar aptitude of their own in distinguishing marks that to ordinary eyes look alike." These are the cases cited by appellee to sustain the action of the court below in admitting the mortgages to the jury for purposes of comparing the signatures to them with the signature to the check in controversy. We are of opinion that the cases, while sound, do not support the contention made by appellee. It will be

Phoenix National Bank v. Taylor.

observed that these cases justify the admission of testi. mony of witnesses that they can see a similarity between the marks used by the signer of the respective papers that are signed by mark only, and that such similarity is strong enongh to support the opinion of the deponent that they were made by the same person. It is probable that the same basis of reasoning would allow the introduction of such papers for comparison by the jury under the provision of our Code, supra. But where the disputed handwriting does not purport to be by another than the one whose name is signed, a “mark” not being used in the signature, we are of opinion it is not competent to offer it for comparison with a paper signed merely with a cross or other mark, claimed to have been previously made by the signer, with his name written in full by some other person. unable to perceive where any legitimate help or light could be thrown upon the matter in dispute by the comparing of the characteristics of the two handwritings. It is that peculiar characteristic attaching to the mechanical formation of letters by which they may be identified as having been made by one particular person that justifies admitting other handwriting of the same party for comparison to prove that the disputed one was probably executed by the same person who wrote the genuine ones. We are there. fore of the opinion that none of the signatures to the mortgages in question (unless it be the one of June, 1999) should have been submitted to the jury.

The judgment is reversed, and cause remanded for proceedings consistent herewith.

We are

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OFFICERS-POWERS PENDING CONTEST-AUDITOR-DEPUTY-SUCCESSFUL

CONTEST-EFFECT--COMPENSATION OF DEPUTY.

Held: Under Kentucky Statutes, section 140, providing that the

term of office of the auditor's clerks shall be the same as that of the auditor, and expire at the same time, unless they be removed by him, the fact that one who held the office of auditor under a certificate of election was adjudged in a contest not to be entitled to the office did not operate to remove one whom he had, while he was the legal auditor, appointed as clerk, and therefore such appointee, never being removed by the successfui contestant, is entitled to compensation for the time he continued, within his term, to discharge the duties of clerk, as he was during that time officer de jure, and not merely de facto.

E. D. & B. L. D. GUFFY, ATTORNEYS FOR APPELLANT.

This is one of a series of actions instituted by clerks of the State auditor's office in the Franklin circuit court to recover salary for services rendered by virtue of appointment by J. S. Sweeney, auditor of public accounts for Kentucky.

It is alleged, not denied, and conceded that J. S. Sweeney was auditor for Kentucky during the month of January, 1900. That during that month he appointed and employed appellant as clerk in the auditor's office at the fixed salary of $125 per month, that appellant performed clerical services in said office from his appointment continuously until the 13th day of June, 1900 and re. covered no compensation after February 28, 1900.

The contention of appellee is that he having become auditor, and not having employed appellant, no compensation is due him.

While appellee was declared by the board of contest to be entitled to the office of auditor in February, 1900, that action of the board was questioned by an action instituted in the Franklin circuit court, and continued in this court, and not determined by it until after June 13, 1900. During the interim, between February 28, 1900 and June 13, 1900, J. 3. Sweeney held possesSmith v. Coulter, Auditor.

sion of the office, and records of the auditor's office and appellant rendered the services charged for in said office.

The service was rendered for the Commonwealth and not for the auditor, and was to be paid for by the Commonwealth and not the auditor. The compensation of auditor's clerks is not an emolument of the office, is not a perquisite of the auditor, it in no way affects his salary and he is in no way bound for its payment, and having performed service for the State, the clerk should be paid for such service whether performed under the supervision of the auditor de facto or de jure.

AUTHORITIES CITED.

Kentucky Constitution, secs. 91 and 95; Kentucky Statutes, secs. 138-140 (ed. 1894.)

CLEM J. WHITTEMORE AND ROBT. J. BRECKINRIDGE, FOR COM

MONWEALTH.

It is contended by appellant that having been legally appointed clerk and having never received a notice of dismissal, he is. entitled to draw pay for the months of March, April, May, and thirteen days of June.

Our contention is:

1. Section 140, Kentucky Statutes, clearly terminates the employment of clerks at the time the officer appointing them ceases to be auditor.

2. There being numerous clerks in the various departments of the auditor's office, the auditor could not know who had been appointed by Sweeney as the books and papers had been wrongfully withheld from his possession, hence notice of dismissal was impossible.

3. The amount of money appropriated by section 138, Kentucky Statutes, to pay necessary clerk hire in the auditor's cffice is appropriated to the auditor, not to the clerks, its expenditure is within the discretion of the auditor who may employ many or few clerks as the necessity arises.

4. A writ of mandamus compelling appellee to pay appellant a sum certain could not be granted for the reason that “It must appear that the writ, if granted, will be effectual as a remedy, and that it is within the power of the defendant as well as his duty to do the act in question. And when the duty of an officer or body is mandatory, and not discretionary its performance and manner of performance may be compelled by mandamus. Spelling on Injunctions and other Extraordinary Remedies, 2d ed., vol. 2, p. 1174.

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