the acceptance was a forgery; and, amongst other evidence, the plaintiff called a witness of the name of Coulfon, who was an inspector of franks at the Poft Office, to prove that he had frequently feen franks pafs the Office in defendant's name (he being a member of parliament), and that from the character in which those franks were usually written, he believed this acceptance to be the defendant's hand writing. He had never feen the defendant write, nor received any letters from him. LORD KENYON faid this was not admiffible evidence. The furthest extent to which the rule had been carried, was to ad mit a person who had been in the habit of holding an epistolary correfpondence with the party, to prove the hand writing, from the knowledge he acquired in the course of that corres pondence; a cafe reported by Fitzgibbon (r), was the first in which fuch evidence was admitted. That evidence was admitted on found principles; for if, when letters are sent, directed to a particular perfon on particular bufinefs, an answer is received in due course, it is a fair presumption, that the anfwer was written by the perfon, whofe hand writing it purports to be; but the franks fent to the Office might be the defendant's hand writing, or they might be forgeries, as well as the prefent; for no communication was had on the fubject with the defendant. GARROW then asked the witness, whether, having been used to detect forgeries, he could fay whether this was a genuine handwriting, or otherwise. LORD KENYON faid, he could not receive this, and obferved that, though fuch evidence was received in Revett v. Brabam, he had, in his charge to the Jury, laid no strels upon it. Erskine, for defendant. Verdict for the Defendant. (r) Lord Ferrers v. Shirley, Fitzg. 195. Da Cofta v. Pym. K. B. Sittings at Guildhall, after Trinity Term, 37 G. 3. (page 103, 105.) DEBT on bond-Plea ufury. The proof of the ufury depended on the authenticity of an account purporting to be figned by the plaintiff. The plaintiff contended contended it was a forgery, which was the only question in the caufe. Several witnefles were called to prove the hand writing, who faid, they believed it to be the plaintiff's. One witness, on being asked the ufual queftion as to his belief, faid it was like it ; but he did not think it was the plaintiff's hand writing, becaufe he knew the plaintiff to be a man too well acquainted with the world to fign fuch an account. ERSKINE contended this anfwer was proper, and that it was Jike the cafe which arose on the hand writing of Mr. Mickle, the tranflator of the Lufiad: Mr. Caldecot in that cafe was permitted to fay, he thought it was not the hand-writing of Mr. Mickle, because he was a very correct man in making capital or small letters, where each was required, but in the writing produced, that correctnefs was not observed. LORD KENYON faid that was a very different cafe from the prefent. Mr. Caldecot's obfervations arose from the character of the band writing itself, but this witness takes into his confideration facts entirely unconnected with and extrinfic from the hand writing. The Jury may take all circumftances into their confideration, but the witnefs fhould form his opinion from the character of hand writing only. Several notes, &c. figned by plaintiff were produced to the Jury, but Lord Kenyon said the belt rule was that laid down by Mr. J. Yates; (s) for if the Jury were to look at the papers, their judgment would depend on their knowledge of writing, which fome might know better than others. It was beft to rely on the evidence of those well acquainted with the character of defendant's hand writing. The Jury nevertheless were permitted to compare the different fignatures, Mingay, Gibbs, and Cooper, for defendant. Verdict for Plaintiff (3) In Brookbard v. Woodley, ante, 104. Raven Sal. v. Dunning and Chilton. K. B. Sittings at Guildhall, after Trinity Term, 39 Geo. 3. (page 153.) In this action of affumpfit both the defendants pleaded the general iffue, and Chilton also pleaded his discharge under a commission of bankruptcy, on which iffue was joined. The plaintiff proved a joint contract, and then the defendant, Chilton, put in the commiflion against him and his certificate, which Law, for the defendants, contended, entitled Chilton to a verdict immediately; and, that when that verdict was entered, he might be examined as a witness for the other defendant, in the fame manner as was daily done in the cafe of trefpaffes. ERSKINE, for the plaintiffs, objected to his teftimony. While defendant on the record, he cannot be a witnefs; and he cannot be delivered from the record until the plaintiff's counfel has replied, and the Jury have deliberated. For aught that appears to the contrary, the plaintiff may prove that the certificate was ob tained by fraud, or that he had loft money by gambling, or other misconduct which would avoid it. This differs from the cafe of trefpaffes, for here the plaintiff must prove a joint contract; and even in trefpaffes, the Jury are never directed to acquit a defendant, unless the plaintiff has failed in making out any cafe against him. LORD KENYON faid, he wished to admit the testimony, for the fake of the plaintiffs, (who had clearly proved their cafe,) left, in case of a mistake on his part, the cause should come down again; but that if the plaintiff's counsel infifted on their ob jection, he must reject his evidence, being most clearly of opinion in his own mind, that he could not be a witness. In trespass, if the plaintiff proves any cafe, the defendant has always been called upon to answer it by other evidence. ERSKINE perfifted in his objection, and the witness was rejected. yerdict for Plaintiff-Damages 1371. Monroe v. Twifleton. C. P. Sittings at Guildhall after Mich. Term, 43 Geo. 3. (page 174.) ASSUMPSIT for the board and lodging of an infant child of the defendant. To prove the contract, the plaintiff called Mrs. Sanden, who at the time of making it was the wife of the defendant, but had fince been divorced from him by act of parliament, and was married again. COCKLE, S. objected to her competence. BEST, S. and PEAKE Contended that she was an admiffible witnefs. It is true a wife cannot, while the remains fo, be a witness either for or against her husband-not for him, because she has an intereft to fupport his caufe; nor against him, because it is the policy of marriage to create an union of intereft and affection. When two perfons are placed in the fituation of man and wife, the law precludes every inquiry from either, which might break in upon the comfort and happiness of the married state, and therefore it will not suffer one to give evidence which may affect the other, because fuch evidence might, as Lord Hale expresses it, create implacable quarrels and diffentions between then. This lady therefore could clearly not have been a witnefs during the marriage, but the reafon why the would then have been incompetent no longer exifts: The bond of marriage is broken and at an end; the parties are in the fame fituation as if it had never existed, and the policy of the law no longer requires that terms of amity and friendship should fubfift between them any more than between utter ftrangers. In determining on the competence of witnesses, the Court is not to look to their fituation at the time the fact happened to which they teftify, but at the time they come to give evidence. If now competent, her situation at that time can make no difference, and fuch was the opinion of the Court of King's Bench in Wyndham v. Chetwynd (t), where witneffes interested in a will at the time of fubscription, but whofe intereft was removed at the time of giving teftimony, were held competent. It is true that there were doubts of the propriety of the decifion in that cafe, but an aft of parliament afterwards paffed to the fame effect. It is no objection to fay a witnefs was interested or infamous at the time of (t) Ante, 159. the the tranfaction, if his intereft or infamy has been fince removed. LORD ALVANLEY.-To prove any fact arifing after the divorce, this lady is a competent witnefs, but not to prove a contract or any thing else which happened during the coverture. She was at that time bound to fecrefy; what he did might be in confequence of the truft and confidence repofed in her by her hufband, and miferable, indeed, would the condition of a husband be, if when a woman is divorced from him, perhaps for her own misconduct, all the occurrences of his life, entrusted to her while the most perfect and unbounded confidence exifted between them, should be divulged in a court of justice. If the might be a witnefs in a civil proceeding, the might equally be fo in a criminal profecution; and it never shall be endured, that the confidence which the law has created while the parties remained in the most intimate of all relations, fhall be broken whenever by the misconduct of one party, for mifcondu& alone can have that effect, the relation has been diffolved. The plaintiff called other witnesses and obtained a verdict. INDEX. |