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accordingly put, and the prisoner convicted. (s) But as it is not competent for the prisoner to shew particular acts of good conduct, the prosecutor cannot go into particular cases of misconduct. An exception to this rule has been established by the 6 & 7 Will. 4, c. 111, which provides, that, " if, upon the trial of any person for any subsequent felony, such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the indictment and conviction of such person for the previous felony." In practice we seldom see evidence called to rebut the defence of character, although it is apprehended the interests of justice. would be advanced if it were done more frequently. Indeed, witnesses to character are *in general treated with great indulgence, [ *216 ] perhaps too much.(t)

[ *217 ]

*CHAPTER IX.

on the proof of handwriting.(a)

§ 156. THE genuineness of handwriting, like other matters of fact, is capable of being proved or disproved by any species of legitimate evidence, direct or presumptive. When the fact of the scription of a document is attested by an eye-witness, the proof is direct; when inferred from circumstances, it is presumptive. With the former of these modes of proof we have nothing to do at present, and only propose to consider that species of the latter where a judgment respecting the genuineness of the handwriting is formed from its resemblance to or dissimilarity from that of the supposed writer.

§ 157. Abstractedly considered, it is clear that this judgment may be formed by one or more of the following means:-1st, A standard of the general character of the handwriting of any person may be formed in the mind by having on former occasions observed the letters traced by him while in the act of writing, with which standard the handwriting in the disputed document may, by a mental operation, be compared. 2ndly, A person who has never seen the supposed author of a document write, may obtain a like standard by means either of having carried on written correspondence with him, or having had other opportunities of observing writing *which there is [ *218 ] reasonable ground for presuming to be his. 3rdly, A judgment as to the genuineness of the handwriting to a document may be formed by a comparison instituted between it and other documents known or admitted to be of the handwriting of the party. These three modes of proof, the admissibility and weight of which we pro(8) R. v. Wood, MS. and 5 Jurist, 225; Kent Sp. Ass., 1841.

(t) Thus, it is not usual to cross-examine witnesses as to character, unless there is some definite charge to which to examine them; (R. v. Hodgkiss, 7 C. & P. 298, 32 Eng. Com. Law Reps.); and although it is the established practice, that calling witnesses to character gives the prosecuting counsel a right to reply, (Resolutions of the Judges, 7 C. & P. 676, (32 Eng. Com. Law Reps.), Reg. 4; R. v. Whiting, 7 C. & P. 771, (32 Eng. Com. Law Reps.), the judges discourage the exercise of it. See R. v. Stannard, 7 C. & P. 673, (32 Eng. Com. Law Reps.)

(a) A considerable part of this Chapter is taken from an article by the author in the Monthly Law Magazine, vol. 7, p. 120.

pose to consider in their order, have been accurately designated, the præsumptio ex visu scriptionis; præsumptio ex scriptis olim visis; and præsumptio ex comparatione scriptorum, seu ex scripto nunc viso.(b)

§ 158. The rule with respect to proof ex visu scriptionis is clear and settled; namely, that any person who has seen the supposed writer of a document write, so as to have thereby acquired a standard in his own mind of the general character of the handwriting of that party, is a competent witness to say whether he believes the handwriting of the disputed document to be genuine or not. (c) The having seen the party write but once, (d) and even then but his signature, (e) or even only his surname,(f) is sufficient to render the evidence admissible; the weakness of it is matter of comment for the jury. And the mark of a person who cannot write may be proved in the same way.(g) § 159. The practice with reference to the presumption ex scriptis olim visis is thus clearly stated by Patteson, J., *in the case of Doe d. Mudd v. Suckermore:(h) "The knowledge [ *219 ] of handwriting may also be acquired by the witnessess having seen letters or other documents professing to be the handwriting of the party, and having afterwards communicated personally with the party upon the contents of those letters or documents, or having otherwise acted upon them by written answers, producing further correspondence, or acquiescence by the party in some matter to which they relate, or by the witness transacting with the party some business to which they relate, or by any other mode of communication between the party and the witness, which in the ordinary course of the transactions of life, induces a reasonable presumption that the letters or documents were the handwriting of the party; evidence of the identity of the party being of course added aliunde, if the witness be not personally acquainted with him.(i)

§ 160. The number of papers, however, which the witness may have seen in the handwriting of the party is perfectly immaterial, so far as relates to the admissibility of the evidence.(k) Nor is it absolutely necessary for this purpose that any act should be done or business transacted by the witness in consequence of the correspondence.(?). "The clerk," says Lord Denman, in Doe d. Mudd v. Suckermore,(m) "who constantly read the letters, the broker who was ever consulted upon them, is as competent to judge whether another sig [ *220 ] nature is that of the writer of the letters, as the merchant

(b) 3 Benth. Jud. Ev. 598, 599.

(c) De la Motte's case, 21 Ho. St. Tr. 810; Francia's case, 15 Ho. St. Tr. 222; Garrells v. Alexander, 4 Esp. 37; Eagleton v. Kingston, 8 Ves. 473, 474; Lewis v. Sapio, M. & M. 39, (22 Eng. Com. Law Reps.); Willman v. Worrall, 8 C. & P. 380, (34 Eng. Com. Law Reps.)

(d) Willman v. Worrall, 8 C. & P. 380, (34 Eng. Com. Law Reps.); Phill. Ev. 692, 8th ed. (e) Garrells v. Alexander, 4 Esp. 37. (f) Lewis v. Sapio, M. & M. 39, (22 Eng. Com. Law Reps.), overruling Powell v. Ford, 2 Stark. 164, (3 Eng. Com. Law Reps.)

(g) George v. Surrey, M. & M. 516, (22 Eng. Com. Law Reps.)

(h) 5 A. & E. 730, (31 Eng. Com. Law Reps.); 2 Nev. & Per. 16.

(i) Lord Ferrers v. Shirley, Fitzg. 195; Cary v. Pitt, Peake's Ev., Add. 34; Tharpe v. Gisburne, 2 C. & P. 21, (12 Eng. Com. Law Reps.); R. v. Slaney, 7 C. & P. 213, (32 Eng. Com. Law Reps.); Harrington v.Fry, R. & M. 90, (21 Eng. Com. Law Reps.); Layer's case. 16 Ho. St. Tr. 205; Gould v. Jones, 1 W. Blackst. 384; Wade v. Broughton, 3 V. & B. 172, (k) Phill. Ev. 693, 8th ed.; Burr v. Harper, Holt, N. P. C. 420, (3 Eng. Com. Law Reps.) (1) Phill. Ev. 693; 2 Stark. Ev. 514, 3rd ed.

(m) 5 A. & E. 740, (31 Eng. Com. Law Reps.)

to whom they were addressed. The servant who has habitually carried letters, addressed by me to others, has an opportunity of obtaining a knowledge of my writing, though he never saw me write, or received a letter from me." And in Smith v. Sainsbury,(n) a witness was allowed to speak to the handwriting of the defendant, although he had never seen her write, and had only observed her signature on an affidavit which had been filed in the cause. But, in order to lay a foundation for any evidence of the class under consideration, the identity of the writer of the supposed documents must be clearly established.(0) Thus, in the case of Earl Ferrers v. Shirley,(p) which was an issue directed from Chancery, to try whether a deed, alleged to have been executed by Earl Ferrers in 1683, was his deed or not, and in order to prove the handwriting of J. C., an attesting witness, deceased, a witness was called who had never seen J. C. at all, but had seen several letters written by him; the evidence was rejected on a trial at bar, on the ground that the indentity of J. C. with the writer of these letters had not been established. So, in the case of Batchelor v. Honeywood,(q) the evidence of an inspector of franks, who was called to prove the handwriting of a member of Parliament, was rejected for the same reason, he never having had any communication with or knowledge of the member, further than seeing letters with his name [ *221 ] *pass through the post-office. But the identity of the writer may be proved by other evidence than that of the witness who has seen the letters or documents; and accordingly, in one case, it was held sufficient evidence of identity, that the supposed writer lived in the town from whence the disputed letter purported to have been written, and that no other person of the same name lived there.(r)

§ 161. It has been made a question, whether a witness who either ex visu scriptionis or ex scriptis olim visis has acquired a general knowledge of the handwriting of a party, but which, from length of time, has partly faded from his memory, may be allowed, during examination, to refresh his memory by reference to papers or memoranda proved to be in the handwriting of the party. In one case a witness was allowed to do so by Dallas, C. J.;(s) but the correctness of that decision has been denied, at least to a certain extent, by Patteson, J., in Doe d. Mudd v. Suckermore ;(t) and the propriety of the practice may be fairly questioned.

§162. We now proceed to the third and most difficult part of this subject, namely, whether and under what circumstances it is competent to prove the handwriting of a party to a document by a comparison or collation instituted between it and others proved or assumed to be his handwriting; and the rule certainly is, that evidence of handwriting based on such comparison or collation is not receivable(u)—

(n) 5 C. & P. 196, (24 Eng. Com Law Reps.)

(0) Fitzg. 195; Middleton v. Sandford, 4 Camp. 34; Perkins v. Hawkshaw, 2 Stark. 239, (3 Eng. Com. Law Reps.); Whitlocke v. Musgrove, 1 C. & M. 511, (41 Eng. Com. Law Reps.); and Greenshields v. Crawford, 9 M. & W. 314. (p) Fitzg. 195. (q) 2 Esp. 714. (r) Harrington v. Fry, R. & M. 90, (21 Eng. Com. Law Reps.) (8) Burr v. Harper, Holt, N. P. C. 420, (3 Eng. Com. Law Reps.) (t) 5 A. & E. 737; (31 Eng. Com. Law Reps.), 2 N. & P. 51. (u) Doe d. Mudd v. Suckermore, 5 A. & E. 703, (31 Eng. Com. Law Reps.); 2 N. & P. 16; Stanger v. Searle, 1 Esp. 14; Clermont v. Tullidge, 4 Č. & P. 1, (19 Eng. Com. Law

for which three reasons are assigned. First, it is said the writings offered *for the purpose of comparison with the document [ *222 ] in dispute may be spurious; and, consequently, that, before any comparison between them and it could be instituted, a collateral issue must be tried, to determine their genuineness. Nor is this all, if it were competent to prove the genuineness of the main document by comparison with others, it must be equally so to prove that of the latter by comparison with fresh ones, and so the inquiry might go on ad infinitum, to the great distraction of the attention of the jury, and delay in the administration of justice. (v) 2ndly, that the specimens might not be fairly selected.(w) 3rdly, that the persons composing the jury might not be able either to read or write, and, consequently, unable to institute such a comparison.(x) As to the last of these objections, it certainly does not seem a very good reason for prohibiting a jury which can read from availing themselves of that means for the investigation of truth, because other juries are, from want of education, disqualified from using it: if some men are blind, that is no reason why all others should have their eyes put out. Nor is the second objection very formidable; it is not so easy in all cases to obtain unfair specimens, and should such be produced, it would be competent to the opposite party *to encounter them with true ones. But there is certainly great weight in the first objection, [ *223 ] particularly when taken in connexion with the general rules of common-law practice, and the peculiar constitution of trial by jury. So long as parties to a suit are allowed to mask their evidence till the very moment of trial, so long would it be highly dangerous to permit them to adduce, for the purpose of comparison, a number of supposed specimens of handwriting, of which the opposite party, having had no previous notice, would not be in a condition either to answer or contradict-specimens which might or might not be fairly selected, or even not the handwriting of the party to whom they are attributed. Still it must be acknowledged that the total exclusion of the proof of handwriting by comparison is not altogether satisfactory, (y) and if any practical means could be devised to secure at least the genuineness of the specimens, it ought on every principle to be received.

§ 163. There are several exceptions to the rule excluding proof of handwriting by comparison: the first of which is, that it is competent for the court and jury to compare the handwriting of a disputed document with any others which are in evidence in the cause, and admitted or proved to be in the handwriting of the supposed writer.(z) The Reps.) note; Greaves v. Hunter, 2 C. & P. 477, (12 Eng. Com. Law Reps.); Macpherson v Thoytes, Peake's N. P. C. 20; Brookbard v. Woodley, Ib., n. (a); R. v. Cator, 4 Esp. 117; De la Motte's case, 21 Ho. St. Tr. 810; Francia's case, 15 Ho. St. Tr. 923.

(v) Per Coleridge, J., in Doe d. Mudd v. Suckermore, 5 A. & E. 706, 707, (31 Eng.Com. Law Reps.)

(w) Ib.; and per Dallas, C. J., in Burr v. Harper, Holt, N. P. C. 421, (3 Eng. Com. Law Reps.)

(x) Per Lord Kenyon, in Macpherson v. Thoytes, Peake, N. P. C. 20; per Dallas, C. J., in Burr v. Harper, Holt, N. P. C. 421, (3 Eng. Com. Law Reps.); per Lord Eldon, C., in Eagleton v. Kingston, 8 Ves. 475.

(y) 2 Ev. Poth. 185; 2 Stark. Ev. 516, 3rd ed.; Phill. Ev. 698, 8th ed.

(e) Griffith v. Williams, 1 C. & J. 47; Doe d. Perry v. Newton, 5 A. & E. 314, (31 Eng. Com. Law Reps.); 1 N. & P. 115, (36 Eng. Com. Law Reps.); Solita v. Yarrow, 1 M. & Rob. 133; R. v. Morgan, Id. 134, n.; Allport v. Meek, 4 C. & P. 267, (19 Eng. Com. Law Reps.); Bromage v. Řice, 7 C. & P. 548, (32 Eng. Com Law Reps.); Waddington v. Cousins, Id. 596, (32 Eng. Com. Law Reps.)

reason of this exception is said to be, that, the documents being already before the jury, to prevent their mentally, instituting such comparison would be impossible.

[ *224 ] *§ 164. Another striking exception has been established in the case of ancient documents. When a document is of such a date that it cannot be reasonably expected to find living persons acquainted with the handwriting of the supposed writer, either by seeing him write, or holding correspondence with him, the law, acting on its maxim, "Nemo cogitur ad impossibilia," allows other ancient documents, proved to have been regularly preserved and treated as authentic, to be compared with the disputed one. (a) It is not easy to determine the precise degree of antiquity sufficient to let in evidence of this nature. In Roe d. Brune v. Rawlings,(b) the supposed writer had been dead about sixty years; and in Doe d. Tilman v. Tarver,(c) the writing was ninety-three years old. But whether in such a case, the proper course is first to shew the specimens to the witness, in order that by studying them he may acquire a knowledge of the handwriting, and then, laying the disputed document before him, ask him if he thinks the handwriting in it the same; or whether he is to be told to make a direct comparison between them in the first instance, is a point_not clearly settled. In the case of Sparrow v. Ferrant, (d) Holroyd, J., is reported to have laid down, that, in order to make ancient signatures available for this purpose, a witness should be produced who is able to swear, from his having examined several of such signatures, that he has acquired a knowledge of the hand writing, so as to be able, without [ *225 ] an actual comparison, to state his belief on the subject. *Subsequent to this, however, came the case of Doe d. Tilman v. Tarver, (e) which was an action of ejectment, tried in 1824, where, in order to prove that a place called Yard Farm was part of a certain manor, a paper was put in evidence, intitled "An account of E. H., (who appeared by the books to have been steward of the manor at the time,) receiver of the ground-rents for Lady F., for two years ending at Michaelmas, 1727," which contained an entry relative to Yard Farm. In order to prove the handwriting of E. H., Lord Tenterden, says the report, directed the person producing the paper to compare it with the handwriting of E. H. in other papers belonging to the manor, and to say whether he believed them to be by the same person and his Lordship added that this course had once been adopted by Lawrence, J. The observation of Lord Denman on this case, in Doe d. Mudd v. Suckermore,(ƒ) that it does not distinctly appear from the report, whether the comparison was made with a standard formed in the mind of the witness by an inspection of the papers produced, or whether a direct comparison was made in the first instance, seems well founded. Indeed no objection as to the mode of putting the question seems to have been raised by the counsel on either side.

(a) Phill. Ev. 701, 8th ed.; Roe d. Brune v. Rawlings, 7 East, 282; Doe d. Tilman ▼. Tarver, R. & M.143, (21_Eng. Com. Law Reps.); Doe d. Mudd v. Suckermore, 5 A. & E. 703, (31 Eng. Com Law Reps.); Eaton v. Jervis, 8 C. & P. 273, (34 Eng. Com. Law Reps.) (b) 7 East, 282. (c) R. & M. 143, (21 Eng. Com. Law Reps.) (d) 2 Stark. Ev. 517, n. (e), 3rd ed.; Dev. Sp. Ass., 1819.

(e) R. & M. 143, (21 Eng. Com. Law Reps.
(ƒ) 5 A. & E. 748, (31 Eng. Com. Law Reps.)

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