Benedict v. The State. to an expression of any particular bodily feeling or sensation. There was no error in excluding them. 4. The action of the court below in permitting the witness, Petty, to testify to the admissions of the prisoner concerning the offense with which he stood charged presents a question of much difficulty. It may be conceded that the most commonly accepted wiew of the profession is that the privilege which was asserted in the trial below is confined to communications made to an attorney who has authority to practice his profession in courts of record.. It is equally true that there is a growing tendency in the courts to extend the rule of privilege to cases which, though not within the letter, are within the manifest spirit of the rule as it is generally understood. Counsel have assumed that the rule which our civil code prescribes applies as well in criminal proceedings. This has been determined differently by this court in Steen v. The State, 20 Ohio St. 333, and in Schultz v. The State, 32 Ohio St. 280, where it is held that the rules of evidence contained in the code of civil procedure apply only to civil actions and proceedings. This calls upon us to look to the common law and to the reason and logic of the question to determine the rules which are to prevail in the trial of criminal causes. It appears by the bill of exceptions in this case that Petty had for many years followed the business of practicing law before justices of the peace, but had not been admitted to the bar. It was in his capacity as such attorney that the prisoner sought his aid and advice. The admissions made to the witness were so made in reply to the latter's question as to what the facts were. So far as the record discloses the witness was entirely reputable in his community, and was deemed thoroughly trustworthy. This must be presumed in his favor. He had for many years practiced law in justices' courts as a regular employment. It was very natural that the prisoner, charged with a grave offense, should seek his aid and counsel. It was, too, most natural, that the pris-1 oner, in answer to his adviser's question, should freely confide to him the secrets which he would repose in no one who did Benedict v. The State. not sustain toward him the relation of legal adviser. The record discloses that the prisoner was not seeking, simply, the solace of some confidential friend in whom he might confide in the hour of his extremity. On the contrary, it was the counsel of some one of superior legal learning and experience he was seeking, and it was for the purpose of putting his legal adviser in possession of the facts which would enable him to give intelligent and valuable legal counsel that the confidence was reposed. Indeed, there was present every element which would invoke the application of the general rule upon this subject except the mere form of the admission of the adviser to practice in courts of record. Every consideration of reason, justice, logic, and fair-play would seem to demand that the mere artificial distinction which the state calls upon us to enforce should be made to yield to the modern tendency to apply the reason and spirit of the rule instead of adhering rigidly and sullenly to its letter. The privilege has been held to include scriveners and conveyancers as well as general counsel. 1 Wharton's Ev., sec. 581; Knight v. Turquand, 2 M. & W. 100; Carpmael v. Powis, 1 Phil. (Eng. Ch.) 687. In People v. Barker, 59 Mich., s. c., 27 N. W. Rep. 546, it was held that, "confidential communications made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded upon the plainest principles of justice." While we find much conflict in the authorities upon this question, we have no disposition to attempt to harmonize them, but prefer to place our solution of it, as applied to this case, upon the views already expressed, and hold that the witness, Petty, should not have been permitted to testify to the admissions made to him by the prisoner. We are not called upon to declare the comprehensive rule that all statements made to persons who practice in justices' courts, during the course of consultation upon legal controversies, are privileged. We simply declare that the peculiar facts of this case called upon the court below to reject the tesimony of the witness, Petty, and in admitting it there was error, for which the VOL. 44-44 Judgment below is reversed. Bell v. Brewster. BELL V. BREWSTER. Evidence-Handwriting-Experts—Ancient documents. 1. A family resemblance between the handwriting upon one paper and that upon another tends to prove that both were written by the same person. Hence, where the identity of a person is in issue, it is competent to introduce letters or receipts claimed to be in his handwriting, for the purpose of comparison with other writings, admitted or clearly proven to have been written by him; and such comparison may be made, and an opinion expressed, by experts in handwriting. 2. It is not necessary to the admission of the papers claimed to be in the handwriting of the person whose identity is involved that they should be clearly proven to have been written by him. Any uncertainty as to this will affect the weight, but not the competency, of the evidence. 3. A letter purporting to have been written more than thirty years ago belongs to the class of instruments known as ancient documents; and, where produced from the family papers of the person to whom it had been addressed, is presumed to have been written by the person by whom it purports to have been written; and the writer and the person addressed being dead, is admissible in evidence without further proof of its authenticity. And so as to a pay-roll of a military company in the war of 1812, on which is what purports to be the signature of a soldier to a receipt for pay due him, produced from the archives of the government in the war department at Washington city. 4. The proper repository of an ancient document is the place where papers of its kind are usually deposited. ERROR to the District Court of Union county. The original action was a suit by the plaintiffs below to quiet their title to certain lands situate in Union county, and which they claimed as the heirs at law of the person last seized. He died in that county on September 11, 1873, and was then known by the name of Robson L. Broome. The plaintiffs, however, claimed that his right name was Levi Brewster; that he was a son of Seabury Brewster, late of Norwich, Connecticut; that he intermarried with Lucy Waterman on March 13, 1820, by whom he had two sons, Richard Brewster, a plaintiff, and Sherman Brewster, deceased, whose widow and children were the other plaintiffs; that he afterward abandoned his family, assumed the name of Robson L. Broome, removed to Union Bell v. Brewster. county and there resided to the time of his death, and was possessed of a large amount of real and personal property, the subject of controversy. A number of rival claims were set up to that of the plaintiffs; in one that his right name was Elisha Case, and in another that it was George Washington Broome; and the heirs of these persons were made parties defendant. An appeal was taken from the judgment of the common pleas to the district court of the county, where judgment was rendered in favor of the plaintiffs below. The defendants took a bill of exceptions to the admission of certain evidence upon the trial. The admission of this evidence against the objection of the plaintiffs in error is the only error assigned upon the record. The bill, omitting the style of the case, is as follows: "Be it remembered that on the trial of said cause it became and was material for said plaintiffs to show that Robson L. Broome, the decedent in the pleadings named, was not in fact Robson L. Broome, but that he was in fact, and that his true name was Levi Brewster, and that he was the son of one Seabury Brewster, late of Norwich, in the state of Connecticut; that for the purpose of establishing that fact said plaintiffs put in evidence certain books and writings, which were either admitted or duly proven to have been in the genuine handwriting of the decedent, and written by him while living at Marysville, Union county, Ohio, under the name of Robson. Lovett Broome; that to further maintain the issue on their part said plaintiffs offered, and, against the objection of said answering defendants, were permitted to put in evidence certain writings purporting to have been written by Levi Brewster, viz: A letter purporting to have been written from an academy in Plainfield, Connecticut, to one Elisha Brewster in Vermont, in the year of our Lord, 1810, and purporting to have been written by Levi Brewster, but without further proof of its genuineness as his writing than testimony tending to show that it was found in its proper place among the family papers of the Elisha Brewster, to whom it was addressed, and showing that said Elisha Brewster now deceased, was a brother of the Levi Brewster whose writing the letter purported to be; and Bell v. Brewster. also at the same time produced and offered, and, against the objection of the said defendants, were permitted to introduce in evidence a certain pay-roll' of the war of 1812, found in the archives at Washington, which purported to bear the signature of Levi Brewster as receipting for pay due him as a soldier in said service, without other proof of its genuineness as his signature than some evidence tending to show that said Levi Brewster was engaged in said service, in the company of which said paper purported to be the pay-roll,' and evidence showing that said pay-roll was found in its proper place, and in the proper custody, among the archives of the government of the United States in the war department at Washington, D. C. "And also, as tending to show the connection of said R. L. Broome with said pay-roll, said plaintiff's gave in evidence handbooks in the admitted handwriting of said R. L. Broome, giving the number of the regiment and the officers thereof and the company officers, which are named as the company officers of the company in which Levi Brewster was a soldier, corresponding with the pay-roll, to the admission of which letter and payroll said defendants at the time excepted." It then shows that experts in handwriting were introduced and permitted, against the objection of the plaintiffs in error, to express an opinion that, on a comparison of hands, the said genuine writings of Robson L. Broome and the said letter and signature to pay-roll were in the same handwriting. It then adds exhibits of the different writings; states the making and overruling of a motion for a new trial; the reservation of exceptions, and the order of the court making it a part of the record; and is duly signed and sealed by the judges comprising the court. W. B. Loomis and C. H. Grosvenor for plaintiffs in error. J. W. Robinson for defendants in error. MINSHALL, J. The principal issue of fact in the case was, whether Levi Brewster, the ancestor of the plaintiffs, was the same person who was known in Union county by the name of Robson L. Broome, and died possessed of the property in con |