by himself or by any other person, or a copy of an entry, if on reading it he can testify that he then recollects the fact to which the entry relates." Marcly v. Shults, supra.

A witness may be allowed to refresh his memory respecting an issuable fact by any writing or other material thing offered in court for his inspection, if after such inspection the witness can testify to the fact.

A witness may be allowed to refresh his memory by referring to a writing made by himself or examined by him when the facts were fresh in his mind and he knew the writing to be correct, although he has no independent recollection of the facts sought to be elicited aside from the writing. If the witness has no recollection aside from the writing, the original writing, if made by the witness, may be received in evidence. In either case the writing must be produced and may be examined by the adverse party, who may, if he chooses, cross-examine the witness upon it and may read it to the court and jury.

Generally on this topic it may be found useful to refer to the following authorities as sustaining the rule established in the foregoing text. Lightner v. Wike, 4 Serg. & R. 203; Calvert v. Fitzgerald, Litt. Sel. Cas. 388; Lawrence v. Barker, 5 Wend. 305; Redden v. Spruance, 4 Harr. (Del.) 267; Field v. Thompson, 119 Mass. 151; Russell v. Hudson River R. Co. 17 N. Y. 140; Guy v. Mead, 22 N. Y. 465; Merrill v. Ithaca & O. R. Co. 16 Wend. 586, 30 Am. Dec. 130; Kelsea v. Fletcher, 48 N. H. 283; Haven v. Wendell, 11 N. H. 112; Mims v. Sturdevant, 36 Ala. 640; State v. Rawls, 2 Nott. & McC. 331-334; Luby v. Hudson River R. Co. 17 N. Y. 131; Pennsylvania R. Co. v. Brooks, 57 Pa. 343; Dietrich v. Baltimore & H. S. R. Co. 58 Md. 347355; Lane v. Bryant, 9 Gray, 245, 69 Am. Dec. 282; Chicago, B. & Q. R. Co. v. Riddle, 60 Ill. 535; Virginia & T. R. Co. v. Sayers, 26 Gratt. 351; Chicago & N. W. R. Co. v. Fillmore, 57 Ill. 266; Michigan Cent. R. Co. v. Coleman, 28 Mich. 446; Mobile & M. R. Co. v. Ashcraft, 48 Ala. 30; Bellefontaine R. Co. v. Hunter, 33 Ind. 354, 5 Am. Rep. 201; Adams v. Hannibal & St. J. R. Co. 74 Mo. 556, and note, 41 Am. Rep. 333; Kansas Pac. R. Co. v. Pointer, 9 Kan. 630; Roberts v. Burks, Litt. Sel. Cas. 411; Hawker v. Baltimore & O. R. Co. 15 W. Va. 636, 36 Am. Rep. 825.

See also 2 Rice, Civil Evidence, chap. 20.

CHAPTER XI.

PROOF OF HANDWRITING.

72. How and By Whom Proved.

73. Rule as to Proof by Comparison in Different States.
a. Rule in Vermont.

b. Rule in Massachusetts.

c. Rule in New York.

d. Rule in Alabama, Ohio and South Carolina. 74. Miscellaneous Authorities Examined.

75. Views of Mr. Wills.

§ 72. How and By Whom Proved. The law points out two modes of proving private writings, in order to enable the parties to use them as evidence. First, when a witness has seen letters or documents purporting to be in the handwriting of the party, and having afterward personally communicated with him respecting them, or acted upon them as his, the party having known and acquiesced in such acts, it is sufficient to enable the witness to give evidence in relation to the handwriting of the party to the instrument sought to be used in evidence. Woodford v. McClen ahan, 9 Ill. 89. The other mode is, by a witness who has seen the party write, and if the witness has seen the party write but once, he is competent to prove the handwriting. 1 Greenl. Ev. $ 577; Woodford v. McClenahan, supra. But the handwriting cannot be proved by comparing the paper in dispute with other papers acknowledged to be genuine, either by a witness, or by the court or jury. 1 Phil. Ev. 490; Jumpertz v. People, 21 Ill. 375; Kernin v. Hill, 37 Ill. 209; Mauri v. Heffernan, 13 Johns. 58; Titford v. Knott, 2 Johns. Cas. 211; Haines, Justices of Peace, p. 683. Substantially the same rule in statutory form finds appropriate expression in the following language:

"The handwriting of a person may be proved by any one who believes it to be his, and who has seen him write, or has seen writings purporting to be his, upon which he has acted or been. charged, and who has thus acquired knowledge of his handwriting. Evidence respecting the handwriting may also be given by

a comparison made by the witness or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Where a writing is more than thirty years old, the comparisons may be made with writings purporting to be genuine, and generally respected and acted upon as such by persons having an interest in knowing the fact." Neal v. Neal, 58 Cal. 287; Cartery's Estate, 56 Cal. 470. And see Cal. Code Civ. Proc. SS 1943, 1944.

As discriminating a textwriter as Mr. Phillips, referring to proving handwriting, by the evidence of third persons-as not inferior to that of the party himself, says: "Such evidence is not in its nature inferior or secondary, and though it may generally be true that a writer is best acquainted with his own handwriting, and therefore his evidence will generally be thought the most satisfactory, yet his knowledge is acquired by precisely the same means, as the knowledge of other persons, who have been in the habit of seeing him write, and differs not so much in kind as in degree. The testimony of such persons, therefore, is not of a secondary species, nor does it give reason to suspect, as in the case where primary evidence is withheld, that the fact to which they speak is not true." 1 Phil. Ev. (6th ed.) 212; Roscoe, Crim. Ev. p. 5.

73. Rule as to Proof by Comparison in Different States.

a. Rule in Vermont.-In Vermont the signature of a party may be proved to be genuine or false by a comparison of it with another genuine signature. Butler v. Dixon (Chittenden County, 1832, not reported), cited in 21 Vt. 264; Gifford v. Ford, 5 Vt. 532; Adams v. Field, 21 Vt. 256; State v. Ward, 39 Vt. 225; State v. Horn, 43 Vt. 20; State v. Hopkins, 50 Vt. 316; Sanderson v. Osgood, 52 Vt. 309. The signature with which the comparison is made, before it can be used, should be established as a genuine one. As stated in Adams v. Field, supra, its genuineness "must either be admitted or established by clear, direct, and positive testimony." Unless this is in the first instance done, the testimony should, for obvious reasons, be excluded. Rowell v. Fuller, 59 Vt. 684.

b. Rule in Massachusetts.-The question came before the court in Massachusetts in Com. v. Coe, 115 Mass. 504, where it was held that, before a writing can be used as a standard of com

parison of handwriting, it must be proved that the specimen offered as a standard is the genuine handwriting of the party sought to be charged, and that the question of its admissibility as a standard is to be determined by the judge presiding at the trial; and, so far as this decision is of a question of fact merely, it is final, if there is any proper evidence to support it; and that exceptions to its admission as a standard will not be sustained unless it clearly appears that there was some erroneous application of the principle of law to the facts of the case, or that the evidence was admitted without proper proof of the qualifications requisite for its competency. The same question has very recently been before the court in Vermont, in the case of Rowell v. Fuller, 59 Vt. 688, where the court reviewing the decisions, there says that the question has not before been authoritatively decided in that state, and lays down this rule, that when a writing is disputed, and another is offered in proof as a standard, the court should first find as a fact that the latter is genuine and then submit it to the jury in comparison with that in controversy. The doctrine is enunciated in Com. v. Coe, supra, which is the same as that so recently settled in Vermont, has since been re-affirmed in Costello v. Crowell, 133 Mass. 352, and again in Costello V. Crowell, 139 Mass. 590. The rule in England is now the same as in Massachusetts and Vermont. For centuries, however, it was otherwise, and the English courts denied the admissibility of such testimony altogether until 1854, when parliament, by 17 & 18 Victoria, chap. 125, passed what is known as "The Common Law Procedure Act," which affiliates the law with that prevailing in the last mentioned states.

c. Rule in New York.-The most appropriate legislation relating to this topic that has engrossed the attention of bench and bar, is contained in the recitals of chapter 36 of the Laws of 1880, as enacted by the legislature of the state of New York. Much of the confusion and uncertainty that infests this topic would disappear under the influence of a congressional enactment of the same scope and character.

This act was evidently intended to enlarge the rules of evidence and extend the facilities for testing the handwriting of a party, the genuineness of whose signature was disputed, beyond the opportunities afforded by the then existing rules.

The act in question leaves the character, number and sufficiency

of identification of the specimens offered in evidence for the purposes of comparison entirely to the discretion of the court, and thus attempts to obviate the objections formerly existing to this species of evidence.

The language of the act, however, which permits the introduction of specimens of a person's handwriting, for the purpose of comparison, when proved to the satisfaction of the court, authorizes only the admission of such writings as purport to be the handwriting of the person, the genuineness of whose signature is disputed. The disputed writing referred to in the statute relates only to the instrument which is the subject of controversy in the action, and the specimens of handwriting admissible thereunder as those of the person purporting to have executed the instrument in controversy. Any other construction would place it within the power of a contestant to introduce in evidence specimens of the handwriting of as many persons as he should see fit to charge with the act of forging the signature in dispute.

d. Rule in Alabama, Ohio and South Carolina.-Persons who are acquainted with, or have some knowledge of another's handwriting, whether acquired by having seen the party write, or other legal way, are competent to testify and give an opinion as to the genuineness of the signature. Experts may go further, and institute a comparison between writings admitted to be genuine and those disputed, and give an opinion. A witness need not be familiar with another's handwriting, to render him competent; on the other hand, not every person who has seen another write is competent to testify, or give an opinion upon the genuineness of the signature. In the course of a busy life, one may see many persons write, in many instances merely casually, the recollection of which is entirely effaced from the memory, as much so as if he had never seen the writing. In such cases, the witness is not competent to give an opinion, merely because he may remember, or it may be shown, that he has seen the person write. Not being an expert, in order to make a witness competent to give an opinion as to the genuineness of a writing, he must be able to say that he has some knowledge or acquaintance with the handwriting of the person, or believes he has such knowledge or acquaintanceship, acquired by seeing him write many times, or once, or in some other legal way. The extent of his knowledge or familiarity with the handwriting in question enters into the weight of his testimony, but does not affect its competency.