fraud of the most fatal kind. In the present instance, the writer himself admitted the signatures to be his; but that was only one mode of proof: it cannot be contended that the case would have been altered in principle, if a third person had proved them; or, if they had purported to be the signatures of the testator, or of the party in the cause, and so necessarily proved by witnesses other than the supposed writer. If such evidence be good for any, it is good for all purposes; if it be receivable in confirmation of other testimony, it is receivable alone; if to disprove handwriting, it is equally so to prove it. And a conviction of forgery might pass on the opinion which a single witness might form, founded solely on the examination of signatures, or a single signature, presented to him the night before by a prosecutor, who need not be called as a witness on the trial to explain when and where such specimen had been procured, or from how many selected, the prisoner, on the other hand, being wholly unprepared to enter into this explanation. It is no answer to this to say, that a similar result might follow upon the evidence of a witness who had seen the prisoner write his name but once: that is an extreme case upon a principle unobjectionable in itself; for no one can deny that the seeing of a party write is at least one correct mode of acquiring a knowledge of his handwriting. Here the danger is in the principle itself, that selected specimens may be made the standard from which the witness is to judge. Furthermore, as the admissibility of this species of proof cannot depend on the fact of the signatures having been proved by the admission of the writer himself, I would ask, what course is to be pursued where the writing which is to form the standard, is itself disputed? Is the counter-evidence to be received at once as to this point; and the opinion of the jury to be taken on the preliminary and collateral issue, before the evidence is heard as to the principal document? Or is that to be gone into after the prima facie proof on the collateral issue, and to be received, subject to being entirely displaced by the answer on the other side? Or, lastly, is the Judge to decide this question of fact? I believe it is impossible to answer these questions without either introducing a most inconvenient novelty in our procedure at Nisi Prius, or involving the jury in a complication of issues from which it is too much to expect that they should escape safely. Again, and connected with this last remark, I have always understood that papers cannot be submitted for the purpose of comparison, even to the jury, except they be evidence on the issue in course of trial before them. This was so decided by this Court in Doe d. Perry v. Newton (6), in affirmance of some previous decisions. But, in the present case, the documents were not evidence in the principal cause; yet they must have been submitted to the jury, who, before they listened to the evidence of the witness as to the attestation to the will, must have been required to decide in their own minds the collateral issue raised on every signature, whether it were that of Stribling or not. It will be asked, whether, when the witness speaks from knowledge acquired in the course of correspondence, the jury must not also decide in their own minds whether the assumption be a just one, that the letters purporting to be written by the individual were in fact written by him. The answer is, that, although, if it were shewn to the jury that the witness was mistaken in the supposition he had made, his evidence. must undoubtedly fall to the ground, yet the law makes it, in the first instance, a presumption that the letters of a correspondence carried on in the ordinary course of business, where the acts done on the faith of it are ratified by the parties, are written or signed by those whose signatures they purport to bear: and this, in the absence of all design or selection, is a reasonable presumption. The whole, too, depends on the same witness; and no more embarrassment, therefore, is created to the jury than where the witness says he has seen the party write, in which case they must also determine whether they believe that preliminary statement, before they consider the weight of his evidence as to the particular document. This assumption, no doubt, may sometimes proceed on a mistake, but so may the most direct evidence on handwriting; there is nothing (6) 5 Ad. & El. 514 ; s. c. 1 Nev. & P. 1 ; 6 Law J. Rep. (N.S.) K.B. 1. so difficult to put beyond question, as the fact that a particular instrument, which the witness has not seen to be signed, was signed by a particular person. In Eagleton v. Kingston (7) Lord Eldon states the rule of evidence as to handwriting, when he first came into Westminster Hall, with great minuteness, and limits it even more narrowly than my argument requires. But he mentions a remarkable instance, as regarded himself, of the uncertainty of testimony to this point. A deed was produced at a trial, on which much doubt was thrown, as a discreditable transaction. The solicitor was a very respectable man, and was confident in the character of his attesting witnesses. One of them purported to be Lord Eldon himself; and the solicitor, who had referred to his signature to plead ings, had no doubt of its authenticity; yet Lord Eldon had never attested a deed in his life. In a matter so open to mistake and fraud, and where the consequences are so serious, I have no desire to widen the door of admission. Is there then any real distinction, either in principle or consequences, between the facts now before us and a direct comparison? If, instead of two days, the trial had lasted one; if, instead of an examination of the signatures on the first day, and out of court, the witness had only seen them in court, and immediately before he was shewn the will; would not this have been clearly a case of direct comparison, however the question had been framed or the answer worded? And can it be affirmed that the alteration last stated would have in any respect differed the character of the evidence? Do they remove any one of the objections which have prevailed, to exclude direct comparison from our rule of evidence? Upon the grounds, therefore, that our rule is a sound one, and well established, both in what it admits and what it rejects, sound in principle, and convenient with reference to the mode of trial to which it is to be applied, and that the present facts are substantially within the latter branch of it, I am of opinion that the learned Judge rightly rejected the evidence tendered. I could have wished to examine in detail the (7) 8 Ves. 473. decisions bearing upon the question, but the importance of the subject, and the dif ference of opinion which exists in the Court, have induced me (I hope excusably) to examine the principle so much in detail, that I must forbear; and I do so the more readily, because I have no doubt that that part of the argument will be thoroughly illustrated by another member of the Court. I will say this only, that I am not aware of any case, of now recognized authority, which lays down any principle conflicting with those on which I have relied. I will only add, that I do not feel pressed by the case of ancient writings, in which a direct comparison is admitted. First, I observe, that, if that proves anything, it proves more than is now contended for; for direct comparison of modern documents is not now insisted on. But, in truth, as to ancient documents, the necessity of the case, and the difference of circumstances, have introduced a different rule of evidence. You cannot call a witness who has seen the party write, or corresponded with him, nor is there much danger, in resorting to comparison, of an unfair selection of specimens. Further, it is obvious to remark that, in ancient documents, it does often become a pure question of skill, the character of the handwriting varying with the age, and the discrimination of it to be materially assisted by antiquarian studies. This may have naturally assisted in opening the way for the admission of this evidence, even in cases where skill of that particular kind is not necessary. With real diffidence, therefore, as to the soundness of my judgment, but having formed it with much consideration, I think this rule ought to be discharged. WILLIAMS, J.-This was an action of ejectment, to try the validity of a will; and, upon the trial, one of the subscribing witnesses (A.) to the will was called, to prove the due execution by the testator, and his own attestation. The fact of his attestation being, on behalf of the lessor of the plaintiff, disputed, and, in consequence, the genuineness of his (A's) signature brought into question, he was asked, upon cross-examination, whether certain signatures, to the number of twenty (then shewn to him), were of his (A's) hand writing; and they were by him stated so The question (important as it is, being connected with principles and practice regulating the admissibility of evidence) seems mainly to be reduced to this point, whether the knowledge, which the witness professed to have, was acquired by means prohibited by any known and established rule of law. It is quite superfluous to remark that with the admissibility only is our concern. How far the evidence, if received, might have answered the intended object, or fallen short of it, with what observations it might, or ought to, have been accompanied, I think it wholly unnecessary to inquire. Now, that proof of handwriting is to be submitted to the consideration of the jury, like every other species of proof, I apprehend to be clear. From the highest degree of certainty, carrying with it perfect assurance and conviction, to the lowest degree of probability upon which it is found to be unsafe to act, it may be, and constantly is, so submitted. From continued and habitual inspection, or correspondence, or both, carried on till the trial itself, down to a single instance, or knowledge twenty years old, evidence may be received: I allude, of course, to the case of Garrells v. Alexander (8), where the execution of a bail-bond was held by Lord Kenyon to furnish means of knowledge. The autho (8) 4 Esp. 37. rity of this case is, indeed, questioned by Lord Eldon, upon another point, because the witness would not go so far as to express any belief; but, as to the competency of a witness founding himself upon a single instance (and Burr v. Harper (9) is to the same point,) we have Lord Eldon's important and prevailing testimony. In the case of Eagleton v. Kingston, he thus expresses himself as to what he considered the rule and course of proceeding in such cases. "You called a witness, and asked, whether he had ever seen the party write. If he said he had, whether more or less frequently, if ever, that was enough to introduce the subsequent question-whether he believed the paper to be his handwriting. If he answered, that he believed it to be so, that was evidence to go to the jury." "You might call one who had not seen him write for twenty years; and if he said he believed it was the writing of the person, that evidence might go to the jury; but to be affected by all the rest of the evidence; as it is the nature of all evidence to be more or less convincing." The observations above applied to knowledge gained by seeing a party write must, I presume, be admitted to be applicable to knowledge gained from correspondence, "acted upon," as the phrase has been, or, in other words, where there has been something to shew that it was, really, the writing of the party, whose, on the face of the letter, it purports to be. Subject to the qualification of Lord Eldon, which seems to be the criterion, and to decide the question in each case, I am aware of no rule attempting to prescribe the quantity of knowledge which is requisite to enable a witness to speak to his belief; what degree of freshness and recency in the correspondence to admit, or what antiquity to exclude, may (as the reason of the thing would induce one to expect) in vain be looked for. To the jury it must go, in the language of Lord Eldon, from the highest to the lowest. That the evidence, therefore, ought to have been rejected from the slender and inefficient nature of it, would not be contended; indeed, the very objection implies the contrary. The question therefore comes, as I stated at the outset, (9) Holt, N.P.C. 420. to the means by which the knowledge of the witness was acquired. And the objection is twofold: first, that it was acquired merely by the comparison of writing; and next, that, at all events, it was not acquired by either of the legitimate and recognized modes, already referred to, by having seen the party write, or corresponded with him. As to the first, if the objection is to be understood in the sense in which it has been, 2 Stark. on Evid. 374, ed. 2, Roe d. Brune v. Rawlings (10), Doe d. Tilman v. Tarver (11), from the time of the reversal of Algernon Sidney's attainder (12), which recites that the jury were directed to believe a certain paper to be the prisoner's, from comparing it with other writings of his, it is to be observed that it does not apply. Whether what was done be equivalent, is another question. The witness, not having before compared the disputed signature with those admitted, but having acquired some knowledge by an attentive examination of them (the admitted ones), is first called upon in court to inspect the questionable signature, and give an opinion from such knowledge, and not from comparison by juxtaposition of the signatures themselves. I beg to be understood as by no means intimating an opinion that the rule, which has obtained with respect to the comparison of handwriting, should be disturbed, because, upon examination, it may appear to depend upon reasons not perfectly satisfactory. It seems to me, that the evidence, so far as this objection is concerned, was admissible, because it was not the comparison of handwriting, in the proper and ordinary sense of the term. To reject it, because what was equivalent to a comparison of handwriting took place, would go far, so far as the reason of the thing is concerned, towards disturbing the rule altogether, and letting in a comparison of handwriting as a medium of proof in all cases whatsoever, or excluding, in a great degree, all possibility of proof. What is to be said, where the means of knowledge are derived from a bygone correspondence of considerable standing? What is it but comparing a distant, and (in proportion to the length of time) faint image in the mind with the writing in question? I will only refer to the observations of Mr. Starkie (13), in his learned and valuable work, and those of Mr. Phillipps (14) on the same subject. In a still earlier work, which the author used to say was more used by other writers than noticed, I mean a treatise upon the law of evidence appended to his edition of Pothier, by the late Sir W. D. Evans, I find the following remarks, with others to the like effect: "But where, in point of reason, is the objection to proof by comparison of hands, as founded upon an inspection at the trial?" "What is the common evidence of knowledge but an act of comparison; a comparison of the object presented to the sight, with the object imprinted by memory in the mind, with the image and copy of the supposed reality? And when the comparison is made, not with this imperfect and fallacious copy, but with an undisputed original, applied with the skill and experience of persons habitually devoted to similar inquiries, it is deemed not only a matter of technical caution, but an essential point of constitutional liberty, to reject the assistance which it may be naturally expected to afford" (15). I would repeat, that I doubt the propriety (not to say, the right) of this Court, upon plausible objections merely, to disturb long-established practice and usage, in a case, too, of such frequent occurrence; but, for the sake of the rule itself, and its security, I would confine it to the case of actual collation and comparison, which, when done in court and before the jury, is supposed to be attended with inconvenience as to them, ("unless a jury could read, they would be unable to judge of the supposed resemblance;" Dallas, C.J., in Burr v. Harper), which furnishes a reason against such comparison altogether. The recency of the information and acquaintance acquired in this case can surely not operate as a valid objection. Suppose a person to have seen another sign or write a paper, or to have received one or more letters from him, but, from length of time, (15) 2 Stark. Evid. 375, 2nd ed. (14) 1 Phil. Evid. 472, 6th ed. (15) 2 Evans's Pothier's Law of Obligations, p. 185, Appendix, No. xvi. s. 6. his general recollection was become so faint and indistinct that he should be unable to form an opinion; might he not peruse and study those authentic documents, if in his possession, to improve and refresh his knowledge before he was called upon to give evidence respecting the writing of that person, by whom such paper or letters, as above supposed, were confessedly written? I apprehend he certainly might. Up to the extent of the above observations, if not beyond them, the very point has been decided in the case of Burr v. Harper. In truth, the reference was made, in that case, not to revive and refresh, but to gain knowledge. And would such perusal be admissible if made a week or a month before the trial, but not so if made an hour before the witness went into court to give his opinion upon the particular writing in question? The case of ancient documents, it must of course be admitted, depends upon a ground distinct from our present inquiry, necessity. Some considerations, however, not wholly foreign, perhaps, from our present subject, may be collected from that head of evidence. That an attentive observation of writing assumed to be that of a particular person, to constitute knowledge of his character, so as to enable a person to give evidence of opinion and belief, is allowable, must, I presume, be considered as placed beyond a doubt. In Brookbard v. Woodley (16), Yates, J. is said to have decided the contrary; but Lord Hardwicke's authority (17) is expressly in favour of it, and so are the more recent decisions, without exception. Whether, by studying the assumed handwriting, the witness should have acquired a knowledge of the handwriting, and, then, apply himself to the writing to be proved, or whether an actual comparison may be made, and so a foundation of knowledge laid, does not seem equally clear. Holroyd, J., than whom a more sound and safe authority cannot be quoted, was of the former opinion-Sparrow v. Farrant (18); the latter course was pursued by Lord Tenterden, (16) Macferson v. Thoytes, Peake, N.P.C. 20, 21, n. a. (17) Bull. N.P. 236. (18) 2 Stark. Evid. 375, 2nd ed. n. x. NEW SERIES, VII.-Q.B. in Doe d. Tilman v. Tarver (19), who, at the same time, quoted a case before Lawrence, J. to the same effect. But, whichever course be the correct one, I apprehend it to be clear that no objection can be made from the time at which the information is obtained, upon which the proof is given. In the two last-cited cases, it is obvious that the witness was called upon to pronounce an opinion in the midst of the trial, without any preparation before. I come now to consider, whether the witness in this case had any legitimate means of knowledge to authorize the question, the answer to which was rejected. It has been said, that the specimens selected may have been garbled and fallacious, "calculated to serve the purpose of the party producing them, and, therefore, not exhibiting a fair specimen of the general character of the handwriting." And this, it will be recollected, is the second usual objection to the admissibility of the comparison of handwriting, (Dallas, C.J., in Burr v. Harper,) the first having been before noticed. I have before endeavoured to explain why, in my opinion, the objection arising from such comparison was not applicable, in fact, to this case. Supposing, however, for the present purpose, that it is, I cannot perceive how it can be affirmed that this was a partial selection by those who wished to use the papers. The selection was not depending upon their power merely. The whole was subject to the answer of the witness. The papers produced might all have been admitted to be of his handwriting; or one half, or any other portion of them, or all, might have been denied. When the papers were so admitted, was there not then some proof that they were of the witness's handwriting? And, if so, how can the case differ in kind, though it may in amount or degree of proof, from the perusal or re-perusal of a couple of letters, written, the one ten, the other five, years before? Why may the witness give an opinion of any person's handwriting from a study of such letters? Because the writer has, in some manner, authenticated them to be his. Why might the witness have been asked the proposed question in this instance? (19) 2 Stark. Evid. 375, n. x, and R. & M. 141. G |