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j of the attesting witness is evidence of every thing on the face of the instrument; the sealing and delivery will be presumed; and it will not be necessary to prove the hand-writing of the party to the deed. (i) *
But, in cases, where there is no subscribing witness on the deed — or, where the subscribing witness denies having any knowledge of the execution, (which is the same thing as if there were no witnesses at all (2),)—or, where the name of a fictitious person is inserted (3) — or, where the attesting witness was interested at the time of the execution of the deed, and continues so at the time of the trial (4}; — or, where the person, who has put his name as sub
(1) Prince v. Blackburn, 2 Ea3t. 150. ib. 636. n. by Le Blanc J. (in the case
Adam v. Kerr, 1 Bos. & Pull. 360. of a promissory note). See also Blurton
Wallis v. Delancey, 7 T. R. 266. (c), v. Toon, Skin. 639. Abbot v. Plumbe,
Ld. Kenyon contra. I Doug.216. Burrows v Lock, 1.c>Vex
(i) Grellier v. Neale, Peake. N. P. jun. 474 —Phippav. Parker, iCampb.
C. 14J., ruled by Ld. Keiiyou. Ley v. 412. contraV
Baliard, 3 F.sp. N. P. C. i?3, by Ld. (j) Fasset v. Brown,Peske N.P.C.
Kenyon. Fitzgerald v. Ebee, 2 Cam|,b. 13.
o3i., oy Lawrence J. Lemon v.Dean, (4) Swire v. Bell, 5 T.R '371.
such a person; this was considered a sufficient ground for letting in proof of the hand writing of the other attesting witness, who had since become interested as administratrix to the obligee, and was a plaintiff on the record. In the case of Crosby v. Percy (1 Taunt. 365.), the court of Common Pleas held, that proof of the hand-writing of an attesting witness had been properly admitted, after proof that diligent inquiry had been made for him at his usual place of residence, where, in answer to ihe inquiry, information was received, as also from the father of the attesting witness, that he had absconded to avoid his creditors, and was not to be four.d. In the last case cited, of Wardel v. Fermor (i Campb. 182.), evidence of the hand.writing was admitted, on proof that, twelve months before, a commission of bankrupt had been sued out against the subscribing witness, who had not appeared at the time fixed for his surrender. It h not possible, by any general rule, to ascertain precisely in what cases this proof rf the subscribing witness's hand-writing will be admitted. Each case must depend upon its own peculiar circumstances. But in all cases it ought to be satisfactorily proved, that a reasonable, honest, and diligent inquiry has been made, without ai\y evasion, and without any design to overlook the witness.
* In the case of a deed executed in the East Indies, and attested by a witness resident there, the stat. 16 G. 3. 057. s.38. enacts, " that it shall be sufficient to prove the hand-writing of the party to the deed, and of the attesting witness, and that the witness is resident in the East Indies."
scribing scribing witness, did so without the knowledge or consent of the parties(1);—or if, after diligent inquiry, nothing can be heard of the subscribing witness, so that he can neither be produced himself, nor his handwriting proved; or if, at the time of the execution, he was of such an infamous character, as to make him incompetent to give evidence: in these cases, the execution may be proved, by proving the handwriting of the party to the deed; or, by any person present at the execution, though he is not endorsed as witness (2); or, by proof of an admission of the party himself that he executed the deed. And proof of the party's handwriting is a sufficient ground for presuming, that the deed was, as it purports to be, sealed and delivered. (3)
Proof of The simplest and most obvious proof of handwriting is writing tne testimony °fa witness, who saw the paper or signature actually written. But a great variety of cases must continually occur, where such a direct kind of evidence cannot possibly be procured. The writing may be secret, as must constantly happen in cases of a fraudulent or criminal nature; or, if any person was present, he may be dead or unknown. In tin's deficiency of positive proof, the best evidence, which the nature of the case admits, is the information of witnesses acquainted with the supposed writer, who, from seeing him write, have acquired a knowledge of his handwriting: for in every person's manner of writing there is a certain distinct prevailing character, which may be easily discovered by observation, and, when once known, may be afterwards applied as a standard to try any other specimens of writing, whose genuineness is disputed. A witness may therefore be asked, whether he has seen a particular person write, and afterwards, whether he believes the paper in dispute to be his handwriting. This course of examination evidently involves two questions; first,
(0 MCraw v. Gentry, 3 Camob. (3) Grellicr v. Nealt, Peakc N P.C. 132. ,\Taunt. 21O. 145. Burrows v. Lock, 10 Ves.jun.
(1) Com. Dig. tit. Evidence) (B.3). 474.
whether the supposed writer is the person of whom the witness speaks, and secondly, if he is the person, whether he wrote the paper in dispute. The first is a question of identity; the second a question of judgment, or a comparison in the mind of the witness between the general standard and the writing produced.
This kind of evidence, like all probable evidence, admits of every possible degree from the lowest presumption to the highest moral certainty. It may be so weak as to be utterly unsafe to act upon, or so strong as in the mind of any reasonable man to produce conviction. The witness may have been in the constant habit of seeing him write, day after day, for years together, on common transactions, and in the course of important business; and what better means can he have of gaining the most accurate knowledge of his manner of writing? On the other hand, it may be found perhaps on enquiry, that he has seen him write only a few words, many years ago, or only once; or the specimens, which he saw, were perhaps slight and imperfect, made in a hurry, at distant intervals, or from some other cause were not the fair average specimens of his general style of writing, but deviations from the common form; in which cases, the impression on the mind of the witness will be faint and inaccurate. But whatever degree of weight his testimony may deserve, which is a question exclusively for the jury, it is an established rule, that if he has seen the person write, he will be competent to speak to bis handwriting. (1)
On the trial of Algernon Sidney, as appears from the printed report of that case (2), three witnesses were called to prove a paper to be his hand-writing: the first said he had seen the prisoner write the indorsement upon several
(1) Lord Preston's casf, 4 St. Tr. ion <nd Coventry v. Kingston, 8Ves. 446,7. Francis's case, 6 St. Tr. 70. jun.438. 474. Layer's c«e, 6St. Tr.175. R- v Dr. (2) 3 St. Tr. 801. Hensey, J Burr. 644. And see Eagle
bills of exchange, and that he believed the paper to hav6 been written by him: this evidence was objected to as a comparison of handwriting, but admitted: the second witness said, he had not seen the prisoner write more than once, but that he had seen his indorsement upon bills, and that the paper was very like it: the third witness said, he had seen several notes, which had come to him with the indorsement of the prisoner's name, and that he had paid them, and had never been called to account for mispayment: the whole of this evidence was received. The prisoner, in his defence, still insisted that nothing but the comparison of handwriting had been offered as proof against him; and the act of parliament, which reversed his attainder, states the admission of this evidence as one of the grounds of the illegality of his conviction. That act recites, among other particulars, that "that there had not "been sufficient legal evidence of any treasons committed "by him, there being produced a paper found in his closet "supposed to be his handwriting, which was not proved "by any one witness to have been written by him; but the "jury was directed to believe it, by comparing it with other "writings of his (i)." However, if the printed report of the trial is correct, something more than the mere comparison of handwriting was laid before the jury; for, according to that report, the first witness had seen the prisoner write his name several times. And, though it may be objected to the testimony of the two last witnesses, that the indorsements, mentioned by them, were not sufficiently proved to have been written by the prisoner, that objection will not apply to the other witness, whose evidence was certainly admissible. The same kind of evidence was admitted in Lord Preston's case within a year after the reversal of Sidney's attainder, and has been since received in many cases of great authority. (2)
[1) Cited in Layer's ate, (1 St. Tr. (1) See alio the case of De h Mottf, 279. 1781, in vol 11. of Howell's New Colt
Another method of acquiring a knowledge of handwriting is by means of a written correspondence. If a witness has received letters, purporting to have been written by a particular person, on subjects of business, or of such a nature as makes it probable, that they were written by the hand from which they profess to come, he may be admitted to speak to that person's hand-writing. The same questions occur here, as have been before mentioned in the case, where a witness speaks from having seen the person write; and in addition to these, one other question arises, concerning the identity of the person who wrote the letters; and the admissibility of the evidence must depend upon this, whether there is good reason to belitive, that the specimens, from winch the witness has derived his knowledge, were written by the supposedwriter of the paper in question. If this point is clearly proved, the witness, who has received the letters, will frequently be able to give more satisfactory evidence than one who has teea the person in the act of writing; for the latter may have seen him write but soldon*, or on occasions which were not likely to excite attention; while the other" may have had frequent opportunities of re-perusing the letters, and the letters themselves, having been written on subjects of business, will probably have more consistency, and exhibit a liurer specimen of the general character of
The first reported case, in which the admissibility of this kind of evidence appears to have been decided, is the case of Lord Ferrers v. Shirley, which is thus stated in FitZgibbon's Reports (t). "Upon a feigned issue out of Chancery, directed to be tried at bar, whether a deed, pretended to have been executed by the Earl Ferrers in the' year 1683, was his deed or not, several witnesses wer» called to swear to the hand-writing of the subscribing witnesses then dead, and amongst others, one J. J., who would