Court of law, (a) it would be useless to offer them if they were in the slightest respect objectionable, the Court in which they are taken having no control over the suitors in equity to compel them to waive objections. (b) There are some instances in which Depositions, as well as taken in bankruptcy,&c. other kinds of secondary evidence are made admissible by act of Parliament. Those taken before commissioners of bankruptcy are ordered to be received under certain restrictions, (c) even though it is an ex parte proceeding. (d) when admitted therefrom. The fact that a signature, letter, &c., was or was not written Handwriting by a certain individual, may be proved by evidence of the hand- as secondary writing, if neither himself nor any one who actually saw it evidence. written can be produced. (e) And every inference which by law Inferences is necessarily attached to the act of writing under the circumstances of each particular case, is proved, incidentally, by proof of the hand. For instance, from a person's signature in the attestation to a deed it is inferred that he really saw it sealed, (a) Supra, p. 124. (b) [That is to say, it is not like the case of depositions in equity read at law by order of the Court of Equity, ut supra ] (c) Stat. 6 Geo. 4, c. 16, s. 92, and the earlier statutes on the same subject which were successively passed and repealed; [vide supra, p. 259, n. (e); ex parte Arnsby, 2 Dea. & Ch. 212.] (d) [Although a person may have been improperly examined before commissioners of bankruptcy, upon a subject unconnected with the interest of the bankrupt's estate, with a view to procure evidence in an action depending against him, the examination may be used as evidence by the plaintiff at the trial of the action; and the Judge at Nisi Prius cannot inquire into the abuse of the authority of the Great Seal, by which the examination has been obtained. The remedy of the party so improperly examined, is by an applica tion to the Chancellor to have the examination taken off the file and cancelled; Stackfleth v. De Tastet, 4 Camp. 10.] (e) [One subscribing witness dead, and another out of the jurisdiction, proof of handwriting allowed; Banks v. Farquharson, Dick. 167. Proof of the handwriting of an attesting witness, abroad at the time; held admissible at Under particular circumstances, proof Where an attesting witness to a will after the decease became interested, yet his evidence was admitted in Brograve v. Wonder, 2 Ves. jun. 634.] Proof of handwriting; [189] signed, and delivered (a); from a written copy of a libel it is inferred that the copier assisted in publishing it; from a letter it is inferred that the contents are true, as far as they clash with the interest of the writer. For the proof of this act of writing, the presence of the best witness is dispensed with more readily than for the proof of any other fact; perhaps too readily, considering how frail and uncertain is the substitute. (b) The reason assigned has been that the evidence in question is in fact scarcely secondary ;-perhaps it would be more correct to say that the testimony of the writer himself is often no better than secondary, for in a great number of instances, having no distinct recollection of the act, he merely acknowledges or disclaims the handwriting, which might have been done equally well by a person who had been in the habit of corresponding with him or seeing him write. It is partly on this ground that even in a prosecution for the forgery of a bank note, the attendance of the cashier of the bank is not insisted upon; (c) for it would be absurd to expect that he could remember each individual signature, when very likely he has signed his name mechanically several hundred times in a day. (d) The case in which proof of handwriting was first allowed when it was known in what foreign country the witness was residing was one before Lord Mansfield; (e) Lord Kenyon says this rule was received with approbation at the time, on account of the convenience of the case; he adds that the old rule was to send out a commission to examine the witness; he had himself adopted the new rule. (f) That case did not set the point at (a) [When the attestation of a deed was in the usual form, and the attesting witness recollected seeing the party sign the deed, but did not recollect any other form having been gone through, at law it was held to be for the jury to say, on his evidence, whether the deed was not duly signed, sealed, and delivered; as all that is very likely to have occurred, though the witness did not remember it; Burling v. Paterson, 9 C. & P. 570] (b) In some instances however, where the attendance of the witness himself is very important, the Courts are proportionably strict; vide supra, p. 252, n. (c). (c) [We have adverted to the fact that copies of the books of the Bank of England are admissible in evidence; but upon a question whether a particular signature to a transfer was the genuine handwriting, for obvious reasons, the original must be produced; Auriol v. Smith, 18 Ves. 198, et vide supra, p. 166, n. (c).] (d) A late secretary to the Admiralty stated that he had once signed his name six thousand times in a day. Bankers sign warrants for dividends in even greater numbers. (e) Coghlan v. Williamson, Dougl. 93. [Et vide supra, p. 251, n. (g).] (f) Barnes v. Trompowsky, 7 T. R. 265; Prince v. Blackburne, 2 East, rest, for in a few years afterwards it was thought right to make it to a certain extent indisputable by inserting in an act for the regulation of trials in India, and for other purposes, a clause that the execution and attestation in India of bonds or deeds or other writings might be proved by evidence of the handwriting of the obligors or party and of the witnesses, and that they were resident in the East Indies. (a) [ 190 ] The foundation which the witness must have for his belief what sufficient, that the handwriting is that of the person to whom he attributes it, has always been a debatable ground. In old times it was necessary that he should have actually seen him write: (b) even once was enough. (c) But in Lord Ferrers v. Shirley (d) it was held that a witness might swear to handwriting where there had been a fixed correspondence by letters, and proof could be given of identity. (e) Lord Kenyon declared his approbation of the rule so laid down, (ƒ) and it has since been taken as clear law. (g) But where there is a reasonable possibility that the specimens on which the witness grounds his belief were also forgeries, the evidence is rejected; as where the inspector of franks at the Post Office, called to prove the signature of a 250; [and see Glubb v. Edwards, 2 Mood. & R. 301, cited fully above.] But see, with respect to the old rule, the dictum of Page, J., in Lord Ferrers . Shirley, Fitzg. 196. (a) Stat. 26 Geo. 3, c. 57, § 37. [The witness gone to the East Indies; see Wyatt v. Bateman, p. 263, n. (e), supra. In the Ecclesiastical Courts also the handwriting and character of a living witness, who was resident in an enemy's country, admitted to proof, in Miller v. Sheppard, 2 Lees. R. 520, which case may serve to point out when Lord Mansfield's rule becomes necessary as well as merely convenient. Practice in a suit in equity to prove a will, when one of the witnesses is abroad, see Hare v. Hare, 5 Beav. 629.] (b) [And he must swear to his belief that the writing produced is the handwriting of the person. The witness merely swearing that he thinks it like is no evidence; Eagleton v. Kingston, 8 Ves. 473, S. C. 476.] (c) Garrells v. Alexander, 4 Esp. 37, and the cases cited there. [Where (e) [A curious case of disputed (f) Carey v. Pitt, Peake on Ev. App. 176. (g) Thorpe v. Gisburn, 2 C. & P. 21; Harrington v. Fry, 1 Ry. & M. 90. [And as to the evidence necessary to prove handwriting, see also Randolph v. Gordon, 5 Pri, 312.] what not. Member of Parliament, could only speak from the superscriptions of letters purporting to have been signed by him. (a) The Courts, feeling probably that the whole of this is very uncertain ground, have been scrupulous about admitting opinions formed in any other way than from actual knowledge of the characters. The above mentioned inspector of franks was not allowed to say whether in his opinion the signature before him was a forgery, he having been in the habit of detecting forgeries. (b) But carelessness in the use of capital letters was admitted as a reason for discrediting a writing attributed to a [191] well educated man, (c) and bad spelling would probably be almost conclusive. (d) Comparison of writing. The readiest and most satisfactory way of ascertaining handwriting would appear to be a close comparison of that in question with undoubted specimens (e); but, for various reasons, which are ably discussed by Mr. Starkie, (ƒ) the Courts have made a rule against the admission of such evidence. It has however on several occasions been more or less relaxed, (g) and lately it has been as nearly as possible broken through altogether. (h) Mr. Justice Park allowed the defendant's attorney to observe carefully a signature to an affidavit signed by the plaintiff, and then to swear that he had formed such a knowledge of his (a) Carey v. Pitt, Peake on Ev. App. 176. (b) And see Gurney v. Longlands, 5 B. & A. 330; it was there treated by the K. B. as a trifling question, and doubtful evidence, although it had sometimes been allowed. (c) Erskine arg. in Da Costa v. Pym, . Peake on Ev. App. 177. (d) [Sed vide infra.] (e) [For use made of inspection and comparison of handwriting, with a view to decide as to the genuineness of certain orders entered in the register, see certificate of Sir Dudley Digges, M. R., 12 Car. 1, 1636-7; Sand. Ord. 192.] (ƒ) 2 Stark. on Ev. 375; [3rd ed. 515, et seq.] (g) In ancient times a deed might receive credit " per collationem sigillorum, scripturæ," &c. Co. Litt. 6b; in Morewood Wood, 14 East, 328. The signature of the foreman of the homage was proved by being found "to tally" with the signature to his will. See also Le Blanc, J., in Brune (h) [The subject of comparison of handwriting by way of evidence is treated of more fully in Smith's Leading Cases.] handwriting as would enable him to swear to his signature to another document. (a) Mr. Baron Gurney after consultation with Mr. Justice Alderson allowed signatures indisputably genuine, and spelled differently, to be submitted to the jury for the purpose of comparison with the signature in question. (b) The cross of a marksman may be sworn to if there be any peculiarity in it. (c) (a) Smith v. Sainsbury, 5 Carr. & P. 196. (b) Anon. 1833, cited in 2 Stark. on Ev. 1034. [Upon an issue at law whether an indorsement was the handwriting of the defendant; held that the jury could not be allowed to compare with other writings in general that in dispute; they could only do so with documents which are otherwise in the cause; Bromage v. Rice, 7 C. & P. 548. Where letters were put in bearing different dates; held, that others, part of the same correspondence, sent in the interval, could not be received, unless expressly referred to in those which were put in; Sturge v. Buchanan, 2 M.* & Rob. (N. P.) 90. On an issue whether an acceptance was not that of the defendant; held that letters written by him, and relating to the transaction, and which had been received in evidence, might be handed to the jury; Eaton v. Jervis, 8 C. & P. 273. The handwriting of a clergyman, viz. rector of a parish, his signature in register book (the entries whereof it was his duty to sign) held sufficient evidence of his handwriting to a receipt; Taylor v. Cook, 8 Price, 650. Comparison of handwriting, although recently ad. mitted, as evidence thereof, when confirmed by the contents of a whole correspondence, refused when one letter only, and a case of commitment; Wade v. Boughton, 2 V. & B. 172. As to comparison of handwriting, see also Waddington r. Cousins, 7 C. & P. 595. On a claim of peerage, a family pedigree, from the proper custody, was produced and offered in evidence, and in order to prove the handwriting, the opinion of an inspector of franks and official correspondence (forming a judgment of the character of handwriting from inspection of other documents, without immediate comparison with the one in question) was rejected; but that of the claimant's family solicitor (who had acquired a familiar knowledge of the ancestor's handwriting, from having, in a long course of his business, for the claimant's family, examined deeds, &c., signed by the ancestor and coming to the claimant as muniments of his title to estates descended to him) was received; Fitzwalter peerage, 10 Cl. & Fi. (P.) 193. Evidence of handwriting of a person deceased tested by com. parison with the signature of his will, in Davies dem. Lowndes, ten. 7 Scott, N. R. 141. As in Morewood v. Wood, 14 East, 328, vide supra, p. 266, n. (g). But where the signature of a retainer, upon which the attorney for the defendant had acted, was offered as evidence of the defendant, (by comparison of handwriting,) it was rejected as no evidence; Drew v. Prior, 5 Man. & Gr. 264. Proceedings to prove handwriting, where a witness disbelieves the genuineness, and assigns, as reason, the want of certain peculiarities; see Young v. Honnor, 1 Car. & K. 51, 2 M. & Rob. 536. As to this subject generally, see Stark. on Evidence, Digest of Proofs, title, Handwriting, 3rd ed. vol. 2, p. 512. In the Ecclesiastical Courts it was always the rule, that similitude of handwriting, even with a probable disposition, was not sufficient to entitle a paper to probate without something to connect it with the deceased; Rutherford v. Maule, 4 Hagg. R. 224.] (c) George v. Surrey, 1 Mood. &. M. 516. [The Courts of Law will even avail themselves of the superior power of vision acquired by some men, in the following of particular callings. On an indictment for forging a will, written apparently over pencil writing previously rubbed out, the evidence of an engraver, in the habit of looking at minute lines on paper, was held admissible as to the existence of such pencil marks, which he had examined with a microscope; R. v. Williams, 8 C. & P. 434. So in the case of the Huntingdon peerage, the Att. Gen. availed himself, for his own greater satisfaction, of a magnifying glass, to detect any appearance of erasures, &c. in any of the registers.] |