Livingston v. Arnoux, 56 N. Y., 507. of the payment in the receipt was not collateral to the main purpose for which it was given. The time of payment was material, as the redemption must be made within the year, and the true date of the transaction would naturally be stated in it. The memorandum on the back of the receipt, indicates that the payment was made by Adriance for Price. Adriance had acted as his attorney, and there was evidence, aside from this indorsement, that he acted in making the redemption for him. It is not necessary that a redemption should be made by the debtor in person; many circumstances may prevent it, and it would be a very inconvenient construction of the statute to require it. If the receipt is alone considered, it shows the payment was, in fact, made by Price; admitting the memorandum, it shows that Adriance made it for him, and as there is nothing to contradict the fact of his agency, it must be assumed. The receipt was competent evidence for another reason. By the fifth section of Chapter 410 of the Laws of 1847, it is made the duty of the officer making a sale of real estate on execution, or any other person who may lawfully act in his behalf, to execute to the person making a redemption, a certificate truly stating all such facts transpiring before him, as shall be sufficient to show the redemption. The sixth section provides for the proof or acknowledgment of the certificate, and for recording it in the clerk's office of the county where the lands are situate, and delares that "such certificate, or the record thereof or a duly authenticated copy of such record, shall be received in all courts and places as prima facie evidence of the facts therein stated." Some of the sections in the act of 1847 relate to redemptions by creditors exclusively, but the language of the fifth and sixth sections is general, and applies, we think, to redemptions made either by the judgment debtor or by creditors. The receipt states all the facts necessary to show a redemption, and is in substance a certificate within the act of 1847, and as such was evidence of the facts stated in it under the statute. The omission to have the certificate. proved or acknowledged and recorded is immaterial as between these parties. Judgment affirmed. Note on Testimony by the Writer. NOTE ON DIRECT TESTIMONY BY THE WRITER. It is not necessary to call the writer as a witness to prove a disputed signature, nor to account for his absence, but its genuineness may be proved by any other competent evidence. Abbott's Trial Ev., p. 393, § 6. A supposed or alleged writer may be asked directly: "Did you write that, or sign that "; or, "Did you authorize anyone to sign that for you?" * Com. v. Kepper, 114 Mass., 278. *These questions were held unobjectionable both in form and substance in the Massachusetts case, where we may suppose that the objection was that both were leading, and the second one called for a conclusion. Bronner v. Loomis, 14 Hun, 341. BRONNER v. LOOMIS. New York, Supreme Court, 1878. [Reported in 14 Hun, 341.] Where the genuineness of a signature is in controversy, the party whose signature it purports to be, may, when testifying in his own behalf, be asked by the adverse party to sign his name in the presence of the court and jury; and a signature thus made may be put in evidence by such adverse party for the purpose of comparing it with the signature in question. It seems, that the party asserting that his own name has been forged, cannot, at his own instance, make his own signature and then put it in evidence for the purpose of such comparison. Plaintiff sued on a promissory note; and defendant alleged that the signature was a forgery. TALCOTT, P. J., said: The only exception to which our attention is called by the counsel for the defendant is that stated at the close of the case, as follows: "A signature made by the defendant upon trial, at the request of the plaintiff's counsel, offered in evidence, written by the defendant; objected to by defendant's counsel and objection overruled, and exception taken by the defendant." The defendant's counsel undertakes to sustain his objection and exception by a reference to the general rule of law as settled in this state, that when the question is upon the genuineness of a signature, you cannot give in evidence other instruments which are genuine to enable the jury to compare the signatures thereto with the one which is disputed. It is true, this is the general rule as adopted in this state. This rule seems to be founded on two reasons: 1. Because, in the absence of such a rule, there would be a great temptation to make an unfair selection of signatures. 2. Because the introduction of a large number of signatures would create a number of collateral issues, and thus tend to burden the case with irrelevant questions and to embarrass the jury. (Van Wyck v. McIntosh, 14 N. Y., 439; Greenl. Ev., § 580.) But, where the signature is made by the person whose signature is in controversy, in the presence of the court and jury, at the request of the adverse party, or where such a signature is Bronner v. Loomis, 14 Hun, 341. obtained on the cross-examination of the witness, the reasons for the application of the rule do not exist. The party asserting the forgery cannot, upon the trial, make his own signature, and then offer the signature so made in evidence for the purpose of comparison with the controverted signature for obvious reasons; (King v. Donahoe, 110 Mass., 155); but, if the opposite party chooses to take the risk, we think a signature thus made may be offered in evidence by the latter, for the purpose of comparing it with the signature in question. (Greenleaf's Ev. [13th ed.], $581, note. Taylor on Ev., § 1669, and note; 1 Wharton on Ev., $706; Chandler v. Le Barron, 45 Me., 534; Roe v. Roe, 40 Super. Ct. Rep. [Jones & Spencer], 1; Hayes v. Adams, 2 Supm. Ct. [T. &C.], 593; Doe v. Wilson, 10 Moore's Priv. Council Cases, 202.) In the case of Doe v. Wilson, last cited, which was decided by the English Privy Council in 1857, the court, in its opinion, says: "Their lordships have no doubt that, if on trial at nisi prius, a witness denies his signature to a documeut produced in evidence, and, upon being desired to write his name, has done so in open court, such writing may be treated as evidence in the case and be submitted to a jury, who may compare it with the alleged signature to the document." (See, also, as bearing upon the question, Birch v Ridge, 1 Foster & Finlason, 270 and note; Cresswell v. Jackson, 2 id., 24; Cobbett v. Rilminster, id., 490, and note.) We think the referee committed no error in allowing the signature to be introduced in evidence, under the circumstances in this case. The question of fact passed upon by the referee was upon conflicting evidence of the force and effect of which he was the judge, and his finding cannot be disturbed. NOTE.-In Williams v. Riches 77 Wis., 569; s. c., 46 Northwest Rep. 817, it was held not error to refuse to compel a witness to rewrite in presence of the jury an endorsement which she claims to have made, especially where the witness testified that she made the endorsement when a child and that since then her handwriting had very much changed. In Allen v. Gardner, 44 Kan., 337; s. c. 27 Pacific Rep., 982, it was held not reversible error to permit a witness against objection to write his signature in the presence of the jury for their inspection and comparison with a chattel mortgage which purported to have been executed by the witness, where the adverse party on cross-examination also asked the witness to write his name and then offered the signature in evidence. |