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§ 165. In order to disprove handwriting, evidence has frequently been adduced of persons who have made it their study, and, though unacquainted with that of the supposed writer, undertake, from their general knowledge of the subject, to say whether a given piece of handwriting is in a feigned hand or not. Much difference of opinion has prevailed relative to the 'admissibility of this sort of r #226 1 evidence. It was received by Lord Kenyon and the Court L * of Queen's Bench, on a trial at bar, in the case of Goodtitle d. Revett v. Braham ;(g) but rejected by the same learned judge in the case of Cary v. Pitt,(A) saying, that, although he had in the former case received the evidence, he had laid no stress upon it in his address to the jury. Similar evidence was, however, afterwards received by Hotham, B., in Rex v. Cator,(») and in the ecclesiastical courts.(A) The leading case on the subject, however, is that of Gurney v. Langlands,(/) which was an issue directed to try the genuineness of the handwriting to a warrant of attorney, where an inspector of franks was called and asked, "From your knowledge of handwriting, do you believe the handwriting in question to be a genuine signature, or an imitation?" This was rejected by Wood, B.; and, on a motion for a new trial, Lord Tenterden said, "I have long been of opinion that evidence of this description, whether in strictness of law receivable or not, ought, if received, to have no great weight given to it. The other evidence in this case was of so convincing a description, as to have produced a verdict satisfactory to the judge; and I can pronounce my judgment much more to my own satisfaction on a verdict so found, than if the evidence had been admitted, and produced a contrary verdict; for I think it much too loose to be the foundation of a judicial decision either by judges or juries." And Holroyd, J., said, "I have great doubts whether this is legal evidence; but I am perfectly r #227 1 clear *it is, if received, entitled to no weight." Bayley J and Best, JJ., concurring, the rule was refused. A somewhat similar opinion seems to be entertained at Doctors' Commons, where Sir J. Nicholl is reported to have declined the offer of a glass of high power, used by professional witnesses of this kind, to examine the handwriting and see if the letters were what is commonly termed painted; adding, that, in his opinion, the fact of their being painted was not any ground for inferring fraud, (m) This is certainly carrying matters a great way, and farther than is usual in courts of common law, which never reject the artificial aid of glasses or lamps, where they can be of assistance in the investigation of truth. That scientific evidence of the nature in question may, in the language of Lord Tenterden, "be much too loose to be the foundation of a judicial decision," may be perfectly true, but to declare it inadmissible, as an adminiculum of testimony, is rather a strong position.
§ 166. The next question connected with this subject is also one which has caused considerable difference of opinion, namely, whether
(S) 4 T. R. 497. (A) Peakc's Ev., App., 34. (i) 4 Esp. 117.
(%) Saph v. Atkinson, 1 Add. Eccl. R. 216, (2 Eng. Eccl. Reps.); Beaumont v. Phillips, 1 Phillim. 78, (1 Eng. Eccl. Reps.) (/) 5 B. Sl A. 330, (7 Eng. Com. Law Reps.)
(m) Robson v. Rocke, 2 Add. E. R. 88, 89, (2 Eng. Eccl. Reps.) See also Constable T. Steibel, 1 Hagg. N. R. 61, 62, (3 EDg. Eccl. Reps.)
it is allowable to prove the handwriting of a party to a modern document by the testimony of a witness whose judgment as to the character of ihe handwriting has been formed from specimens admitted to be genuine, and shewn to him with a view of enabling him to form such opinion. In Stanger v. Searle,(n) where the question turned on the genuineness of the handwriting on a bill of exchange, purporting lo have been accepted by the defendant, a witness was called, who
T *228 1 stated mat ne naf* seen tne defendant *write on several * occasions before the trial, he having written in the presence of the witness purposely that he might be enabled to distinguish his handwriting from that on the bill. The evidence of this witness was rejected by Lord Kenyon, as the defendant might, through design, write his name differently from his common mode of writing. And in the subsequent case of Allesbrook v. Roach,(o) the same learned judge allowed the jury to compare a suspected signature with one admitted to be authentic, but not evidence in the cause, although he refused to allow a witness to state his judgment of the handwriting founded on such comparison; and similar evidence was also rejected by Lord Tenterden, in Clermont v. Tullidge.(p) But the whole subject has since undergone a complete investigation in the case of Doe d. Mudd v. Suckermore,^) which is the leading case on the rules of evidence respecting handwriting. In that case, the question turned on the due execution of a will, and the three attesting witnesses were called. It was supposed that S., one of them, was deceived in swearing to his own attestation, and that, although he had attested a will for the testator, the document produced was a forgery. On his cross-examination, two signatures, purporting to be his, and to have been subscribed to depositions made by him in certain other proceedings, and also sixteen or eighteen signatures, apparently his, were admitted by him to be in his handwriting. The cause lasted more than one day, and on a day subsequent to that of the examination of S., another witness was called, who had no other knowledge of him or of the character r #229 1 of handwriting than from an examination during the *• J trial of the *admitted signatures. This second witness, it
is to be observed, was an inspector of powers of attorney at the bank, whose whole duty was to compare the signatures to powers of attorney with former signatures made by the parties, and who stated that from the inspection he had made of the signatures of S. in the actual case, he was able to form a judgment as to his handwriting on the supposed will. This evidence was objected to as being proof of handwriting by comparison, and as such rejected by Vaughan, J.; and the judges of the Court of Queen's Bench, after hearing the question fully argued, on a rule for a new trial, differing in opinion, proceeded to give judgment separately.
§ 167. Lord Denman, C. J., and Williams, J., thought the evidence receivable, and argued as follows:—Admitting the existence of the rule excluding proof of handwriting by comparison—concerning the abstract propriety of which much doubt might exist—the present case did not fall strictly within it; and a rule so objectionable in principle
(n) l Esp. 14. (o) 1 Esp. 351. (p) 4 C. & P. I, (19 Eng. Cora. Law Reps.)
(.q) 5 A. &, E. 703, (31 Eng. Com. Law Reps.); 2 N. 4. P. 16.
ought not to be extended by construction or inference. No difference in principle existed between the present case and those of Sainsbury v. Srnith,(r) Earl Ferrers v. Shirley,(.?) and oihers, where witnesses were allowed to form their opinion of handwriting from correspondence, or having casually seen the handwriting of the party. The witness here appeared, not in the light of an ordinary person, as in R. v. Cator,(J) called on to place the doubtful papers in juxtaposition, and so compare them, but of a scientific individual, called on to give to the jury the benefit of *his skill; in which case Burr v. r #90.0 -i Harper,(«) and the numerous cases relative to the proof L *- J of ancient documents, shewed that the recency of the period when his knowledge of the handwriting was acquired could make no difference. But even supposing this evidence were to be considered equivalent to a comparison of handwriting, still the reasons for objecting to it as such would not apply in the present case, for the documents having been admitted by the first witness to be of his handwriting, no collateral issue could be raised upon them; which distinguished the case from that of Stanger v. Searle,(«) and brought it within that of Allesbrook v. Roach.(ar) Patteson and Coleridge, J J., on the other hand, thought the evidence rightly rejected. It differed from a knowledge of handwriting obtained by correspondence, &c, in this essential point, namely, the undesignedness of the manner in which, in the latter case, the knowledge is obtained. In such cases the letters from which the opinion of the witness is formed are letters written in the course of business, without reference 1o their serving as evidence for a collateral purpose in future proceedings. It was admitted in argument at the bar to have been the uniform practice for many years to reject such evidence as this, and rightly so, for it was in substance a proof of handwriting by comparison; and with respect to the fact of the first witness having admitted the genuineness of the specimens, it would be highly dangerous to allow parties to the suit to be bound by admissions of that nature. As to Allesbrook v. Roach,(x) it must be considered as overruled by *Doe d. Perry v. Newton ;(y) r #9gi -and with respect to Burr v. Harper,(2) the legality of that J decision was at least questionable; but it was never brought under review, the verdict having been against the party in whose favour it was made. They considered Stanger v. Searle(a) and Clermont v. Tullidge,(6) as authorities in point.
§ 108. The Court being thus equally divided in opinion, the rule for a new trial was of course discharged; and it may be fairly observed, that, as it has been hitherto the admitted practice to reject this kind of proof, the onus of proving its admissibility, consistently with the received principles of evidence, seems to lie on those who seek to introduce it.
§ 169. Two cases bearing on this subject have occurred since Doe d. Mudd v. Suckermore. They are Griffits v. Ivery(c) and Hughes
(r) 5 C. & P. 1!)6, (24 Eng. Com. Law Reps.) (») Fitxg. 195. (<) 4 Esp. 117. (a) Holt, N. P. C. 42, (3 Eng. Com. Law Reps.) (r) 1 Esp. 14. (x) Id. 351. (y) 5A.it; 314, (31 Eng. Com. Law Reps.); 1 Nev.fc Per. 1, (36 Eng. Com. Law Reps.) («) Holt, N. P. C. 420, (3 Eng. Com. Law Reps.) (a) 1 Esp. 14.
(6) 4 C. & P. 1, (19 Eng. Com. Law Reps.)
v. Rogers.(rf) In the former of these, the defendant, to negative the genuineness of the acceptance to a bill of exchange, called witnesses, who deposed that they were acquainted with his handwriting, and did not believe the acceptance to be his. The plaintiff's counsel then proposed, on cross-examination, to lay before them a paper, purporting to be signed by the defendant, and to ask whether they believed the signature to be that of the defendant, for the purpose of testing their knowledge of his handwriting by the agreement or disagreement of their testimony on this point . Lord Denman, C. J., who tried the case, held that the paper could not be shewn to the witnesses, unless it was f *232 1 a"unde made relevant and evidence in the case, or unless L 'it was "proved by independent evidence to have been
written by the defendant; and this ruling was confirmed on motion for a new trial by the Court of Queen's Bench, consisting of Littledale, Coleridge, JJ., and Lord Denman, C. J., who added, that the latter part of his ruling could not be sustained, and that if the paper even had been proved by independent evidence to have been written by the defendant, it would not have rendered the question regular. That case was followed by Hughes v. Rogers, where a witness, called by the plaintiff to prove the signature of an attesting witness to a bond, said it was not in his handwriting; whereupon the counsel for the plaintiff put into his hands another paper, not in evidence in the cause, which the witness also declared was not the handwriting of the attesting witness. The plaintiff's counsel then proposed to call witnesses to prove that this second paper had been actually signed by the attesting witness in their presence. This evidence was rejected by Coleridge, J., as tending to raise a collateral issue; and this ruling was confirmed by the Court of Exchequer, Parke, B., in the course of his judgment, referring to Griffits v. Ivery, and stating that he had himself, in a recent case, acted in conformity with that decision.
§ 170. Whatever may be the relative value of the above modes of proof of handwriting when compared with each other, it is certain that all such presumptive proof is even in its best form precarious, and often extremely dangerous.(e) "Many persons," it has been well T *233 1 ren"ar^ed,"write alike; having the same teacher, *writing L J in the same office, being of the same family,—all these
produce similitude of handwriting, which in common cases and by common observers is not liable to be distinguished. The handwriting of the same person varies at different periods of life: it is affected by age, by infirmity, by habit."(/) And the two following instances shew the deceptive nature of this kind of evidence. The first is related by Lord Eldon, in the case of Eagleton v. Kingston.(g) A deed was produced at a trial, purporting to be attested by two witnesses, one of
(d) 8 M. & W. 123.
(e) Huberus, Pnel. J.C, lib. 22, tit. 4, n. 16 and 20; Wills on Circumstantial Evid. 151; and see the judgment of Sir J. Nicholl in Robson v. Rocke, 2 Add. E. R. 79, (2 Eng. EccL Reps.)
(/) Per Adam, arguendo, in R. T. Justice Johnson, 29 Ho. St . Tr. 475. Sec, also, per Sir J. Nicholl in Constable v. Steibcl, 1 Hagg. N. R. 61, (3 Eng. Eccl. Reps.) "Literarum dissimilitudinem seepe quidem tempua Tacit, non enim it a quia scribit juvenis et robustos, ac senex et forte tremens; etepe autem et languor hoc facit: et quidem hoc dicimi.s, quando calami et atrameuti immutatio, similitudinii per omnia aufert puritatem." Preface to the 73rd Novel. (g) 6 Ves. jun. 476.
whom was Lord Eldon. The genuineness of the document was strongly attacked; but the solicitor for the party setting it up, who was a most respectable man, had every confidence in the attesting witnesses, and had in particular compared the signature of Lord Eldon to the document with that of several pleadings signed by him. Lord Eldon had never attested a deed in his life! The other case occurred in Scotland, where, on a trial for the forgery of some bank notes, one of the banker's clerks, whose name was on a forged note, swore distinctly that it was his signature, while to another, wnich was really his, he spoke with hesitation.(A) Standing alone, any of the modes of proof of which we have treated in this chapter are worth little,—in a criminal case nothing; their real value being as adminicula of testimony.
171. Our ancient lawyers appear to have used the r *234 1 expression, "comparison, or similitude of handwriting," * in its more proper and enlarged-tfense, as designating any species of presumptive proof of handwriting by comparison, either with a standard previously created in the mind, ex visu scriptionis, or ex scriptis olim visis; or by a direct comparison, in the modern sense of the word; and to have considered, that any of these modes of proof were admissible in civil, and none of them in criminal cases.(i) This distinction is, however, now completely abandoned.(A)
*CHAPTER X. [ *235 ]
PRESUMPTIONS IN INTERNATIONAL AND MARITIME LAW.
§ 172. We propose, in this chapter, to consider certain presumptions to be found in international and maritime law. With respect to international law, its very existence as a science rests on one important presumption. "In the silence of any positive rule," says Dr.
(A) Burnett's Commentaries on the Criminal Law of Scotland, 502, Case of Carsewell, Glasgow, 1791.
(i) Case of the Seven bishops, 12 Ho. St. Tr. 297, 304; note to the Case of Algernon Sydney, 9 Ho. St. Tr. 864, n.; note to the case of Doo d. Mudd v. Suckcrniore, 5 A. & E. 752, (31 Eng. Com. Lnw Reps.); and it seems to have been on this principle, that the attainder of Algernon Sydney was reversed.
(k) R. v. Watson, 2 Stark. 153, (3 Eng. Com. Law Reps.); R. v. Burdett, 4 B. & A. 122, (6 Eng. Com. Law Reps.); A. G. v. Lc Merchant.^ T. R.201, n.—The subject of the present chapter has, in every age, proved a source of embarrassment to legislators and jurists. The rules of the Roman law respecting it are contained in the 73rd Novel., which, we are told in the beginning of it, was framed in consequence of the practice of counterfeiting handwriting, and the difficulties of a case which had recently arisen in Armenia. For the practice of the civil law in modern Europe, the reader is referred to Hubcrus, Proal. Jur. Civ. lib. 22, tit.4,n. 16 and 20; Voet . ad. Pand., lib. 22, tit. 4, n. II; Cujac. in 73 Nov.; Oughton, Ordo Judicior., tit. 225. The canon law is said to have admitted proof of handwriting in its most objectionable form, namely, by comparison with documents unconnected with the cause; Per L. Eldon, C, in Eaglcton v. Kingston, 8 Ves. 474; per Coleridge, J., in Doe d. Mudd v. Suckermore,5 A. St E. 706. 708, (31 Eng. Com. Law Reps.) The framers of the Codci Napoleon seem to have been fully sensible of the difficulties attendant on the subject, and, while admitting proof of handwriting by comparison, have taken great pains to ensure the genuineness of the specimens used for the purpose. Code de Procedure Civile, lib. 3, tit. 10, art . 193 to 213.