SANDERS . JARMAN.

ble on the same. This was done November 3d, 1866. The defendant relied upon the release to King as a discharge to himself. It was agreed that, if his Honor should be of opinion with the defendant, a judgment of non-suit should be rendered against the plaintiff, otherwise he should give judgment in favor of the plaintiff, for the balance of principal and interest, deducting the credit of $310.

His Honor gave judgment against the plaintiff, and he appealed.

Green, for the plaintiff.

Ilaughton, for the defendant.

PEARSON, C. J. We should concur with his Honor in the conclusion at which he arrived, if the case was governed by the rules of law, applicable to bills of exchange and promissory notes; but we are of opinion that the legislation called for by the condition of the country after the war, has the effect to make “the rules of law" inapplicable to the case, and it must be governed by rules of justice and equity, as set out in the several statutes in reference to the scale and the value of the consideration of the contract.

The endorser of a promissory note makes a conditional contract, that he will pay the note, provided it is not paid by the maker, and notice is given in reasonable titne; (the demand on the maker and notice is not necessary by statute in regard to promissory notes.)

Suppose a note for $1,200, in consideration of Confederate money, to be given in 1862-it is endorsed in 1863, in consideration of Confederate notes, the holder will recover of the maker by the scale of 1862; but if he sues the endorser he will recover by the scale of 1863, on the ground that the contract of the endorser was made in 1863, and he should, in justice, only pay the value of the Confederate notes received by him. This violates the rule by which an endorser, on default of the

SANDERS. JARMAN.

maker, becomes liable for the amount of the note; but it is a clear inference or corollary from the legislation in regard to debts contracted during the war.

So, in our case. The contract of Jarman, construed in reference to this legislation, was that, unless the maker paid the amount of the note, he (Jarman) would pay the value of the consideration received by him, which, it seems, was a $600 note of Jarman, given in 1860, or 1861, and some other notes and Confederate money, to make ont the balance.

The maker, when called on, paid $310, the value of two mules, for which the note was given; that let him off, and, according to the ordinary rules of law, it also discharged the endorser. Such would have been the legal effect, had the maker paid the amount of the note in good money; for it was a condition of the contract of endorsement, that the endorser was not liable, provided the face of the note was paid in good money; but that is out of the question. The maker falls back upon his right to pay only $310, the value of the mules. This does not discharge the endorser, for the face of the note has not been paid; so he is bound by his contract of endorsement to pay $1,200; but then he may, in his turn, claim the right to pay only the value of the consideration which was received by him, to wit, the $600 note, &c. In Summers v. McKay and Sheppard, 64 N. C. 555, the action was against the maker jointly with the endorser. The main purpose was to fix the liability of the maker, and it did not occur, either to the Court or to the counsel, that, under the legislation in reference to debts contracted during the war, the liability of the endorser was not the same as that of the maker, and that the endorser could insist that his liability was to be measured by the scale at the date of the endorsement, which was the date of his contract, or by the value of the consideration received by him. There is error. Judgment for balance, $1,116, as by case agreed. Judgment reversed.

PER CURIAM.

STATE v. WOODRUFF.

STATE to the use of CATHARINE STUBBLEFIELD vs. GEORGE

WOODRUFF.

Where, in the trial of an issue of Bastardy, the mother of the child was put upon the stand, having the child in her arms, and the Solicitor called the attention of the jury to the child's features, and afterwards in his address to the jury commented upon its appearance, &c., all without objection by the defendant; Held, that objection to the Solicitor's course came too late after verdict ; and it was not error for the Judge to charge that the jury might take the appearance of the child into consideration, and give it whatever weight they thought it entitled to.

It has long been the practice in this State in Bastardy cases to exhibit the child to the jury, and this Court sees no objection to the practice. [Outlaw v. Hurdle, 1 Jon. 150, and State v. Jacobs, 5 Jon. 259, distinguished and approved.j

Issue of Bastardy tried before Clark, J. at Spring Term, 1871, of NORTHAMPTON Superior Court.

On the trial one Joseph Barham was introduced by the defendant to sustain the character of another witness. He stated he knew the general character of the witness, and it was good. He was then asked, Would you believe the witness on oath? The Solicitor objected, and his Honor ruled out the question, but permitted the witness to be asked, if from his knowledge of the general character of the witness he would believe him on oath. Defendant excepted.

The mother of the bastard child was examined as a witness. She held the child in her arms and the Solicitor called the attention of the jury to its features. Nothing was then said about any resemblance of the child to the defendant, but in his address to the jury the Solicitor called attention to its features and commented upon its appearance, the child being still before the jury.

His Honor, in his charge, told the jury they might take into

STATE v. WOODRUFF.

consideration the appearance of the child, and give it whatever weight they thought it entitled to.

Verdict and judgment for the State, and appeal by the defendant.

Attorney General, Battle & Son, and Dupre for the State. Peebles & Peebles, for the defendant.

1. The jury had no right, themselves, to compare the looks of the child and the defendant. They should receive evidence as to the resemblance through the sense of hearing (from others) and not of sight. Outlaw v. Hurdle, 1 Jon. 165. Otey v. State v. Jacobs, 5 Jon. 259.

Hoyt, 3 Jon. 407.

2. It was the duty of the Judge to correct the statement of counsel. State v. Williams, 65 N. C. 505, and the cases there cited.

BOYDEN, J. There are two objections made on the record. But the first, as to the testimony of the witness Joseph Barham, has been properly abandoned by the counsel for the defendant.

The remaining question, as to the right of the plaintiff to exhibit the alleged bastard child and to call the attention of the jury to the child's features, was argued with much earnestness, and the right, thus to exhibit the child before the jury, strenuously denied.

The first answer to this is, that no objection on the trial was taken to this course of the Solicitor by the defendant; but apparently, as we take it, he was willing to this course, and that perhaps for the reason, that the defendant and his counfel believed, that this exhibition of the child might tend to satisfy the jury, that the defendant was not the father of the child. But no matter what was his reason for not objecting to this course, at the time, it was certainly too late to do so after the verdict of the jury.

STATE v. Woodruff.

The defendant further objects, that the Solicitor, while addressing the jury, called their attention to the child, which was still before the jury, and commented at length on its appearance, &c.

It is a sufficient answer to this objection that all this was done, for any thing we can see on the record, with the full approbation of the defendant.

The further and last objection is, that his Honor told the jury that they could take into consideration the appearance of the child and give it whatever weight they thought it entitled to.

We see no error in this part of his Honor's charge, but it seems to have been highly proper, so to have instructed the jury, after this evidence had been put before the jury without objection.

This disposes of the case, but as the case of Outlaw v. Hurdle, 1 Jones 150, and the State v. Jacobs, 5 Jones 259, have been earnestly pressed upon our attention, as authorities to show error in this case, we deem it proper to distinguish those cases from the present. The case of Outlaw v. Hurdle was, whether it was competent to prove the hand-writing of the testator, by submitting for inspection to the jury letters written by the testator, for the purpose of enabling them, by comparison, to determine whether the paper writing propounded was in truth the will of the supposed testator. This evidence was properly rejected, for the reason, first, that it is a well established principle, that before any witness can testify as to the hand-writing, he must prove that he has had proper opportunities to learn the character of the hand-writing, and in fact, he has become so well acquainted with the character of the writing as to form an opinion of its genuineness. No one is permitted to testify as to hand-writing by merely having seen a few genuine specimens of the hand-writing, because the law holds that competent knowledge of hand-writing, to enable a person to testify, cannot be thus acquired.

But when the question is as to the identity of a party, or his