have sworn to the name of J. Cottington, whose name was on the deed as a witness, because he had seen several letters written by Cottington; thereupon he was asked whether he had ever seen Cottington write; to which he answered, that he never did, nor ever saw the person that wrote the said letters, but that his master, (to whom the letters were written for the rent of a part of the estate of the late Earl Ferrers, which his said master held,) informed him they were the letters of Cottington, the Lord Ferrers's steward, who was the person pretended to have attested the deed in question. It was hereupon objected to his testimony, because he could not say with any certainty, whether or not the writer of the letters was the same person that attested the deed; for Cottington, who was supposed to write the letters, might get some other person to write those very letters for him; and the counsel insisted, that in all cases, where a witness would swear to handwriting, he must be able to say, that he saw such person write. The court rejected the witness, because he could not ascertain the identity of the person. But Lord Raymond said, "It was not necessary in all cases that the witness should have seen the person write, to whose hand he swears; for where there has been a fixed correspondence by letters, and that it can be made out that the party writing such letters is the same man that attested a deed, that will entitle a witness to swear to that person's hand, though he never saw him write." Page J. said, "If a subscribing witness to a deed lives in the West Indies, whose handwriting is to be proved in England, a witness here may swear to his hand, by having seen the letters of such person, written by him to his correspondent in England, because under the special circumstances of that case, there is no other way, or at least the difficulty will be great, to prove the handwriting of such subscribing witness.' But Lord Raymond differed, and said, "that these special circumstances could not vary the reason of the thing." It was further objected to the same witness, that he should produce the letters, that the court and the

jury

jury might be able to judge of the resemblance between the hand-writing of the letters and that on the deed; but this was over-ruled by the Court, "because the witness might well have acquired a knowledge of the character of Cottington's hand-writing, by having seen several letters written by him." The rule to be deduced from this case is, that a witness may be admitted to speak to a person's hand-writing, if he has seen letters which can be proved to have been written by him; but that this antecedent proof of the identity of the person is indispensably necessary; and further, that hearsay evidence of identity is totally inadmissible. The case, reported to have been put by Page J., is not very clearly stated. If it is understood to mean, that where a subscribing witness resides abroad, slighter proof of his signature may be given than is necessary in other cases, it certainly cannot be supported; but if the meaning is, that his signature may be proved in the same manner as if he were dead, by a witness who has seen letters proved to be of his writing, the case is warranted by many later authorities, which have been already mentioned. And with regard to the last objection, namely, that the witness ought to produce the letters, that the jury might judge of the resemblance, it appears to have been made as a preliminary objection to the admissibility of his evidence, and was therefore properly over-ruled. But after the witness has been regularly admitted to give his evidence, it seems reasonable, that the opposite party should be allowed not only to cross-examine as to the number and appearance of the writings, which the witness professes to have seen, but also to call upon him to produce the writings in court, that the jury may judge of the means which the witness had of forming his opinion.

Another authority, in support of the rule laid down in Lord Ferrers v. Shirley, is Layer's case (1), on a trial

(1) 6 St. Tr. 275. Gold v. Jones, x Black. Rep. 384. S. P.

for high treason, where the witness (who had received letters from the prisoner on business five years before, which he answered, and transacted the business according to the directions in the letters, and had been paid for it,) was allowed to speak to the hand-writing of a treasonable paper charged upon the prisoner; and, though the witness in this case had seen the prisoner write some years before the receipt of the letters, yet independent of that circumstance his evidence was adjudged to be admissible. If he had formed his judgment of the prisoner's hand-writing from these letters alone, "if the case had gone no further," said the Chief Justice, "nobody could have doubted but that, according to the usual course and rules of eviWith respect to the dence, the paper ought to be read." interval of time, that has elapsed since the witness saw the prisoner write, or received letters from him, that is a circumstance not to exclude him from giving evidence, but to be left with all the other circumstances of the case to the consideration of the jury.

This rule of evidence appears not to have been settled at the time of the memorable trial of the seven bishops, who were tried for a libel in the fourth year of James II. In the course of that trial, a witness, called to prove the signature of one of the bishops, said he had received letters from him on business, and that he had done what the letters required, and that he believed the signature in question to be the bishop's hand-writing, but could not swear that those letters were written by him (1). This was the strongest evidence in the case, excepting the proof of the archbishop's signature, which was proved by one who had seen him write. But Mr. Justice Powell thought it an objection to the evidence before mentioned, that the witness had never seen the bishop write, and that the receipt of the letters was not sufficient, unless he could also swear who had written them. A long and desultory

argument ensued on the admissibility of the paper in question, the counsel for the prosecution insisting, that the signatures of the bishops had been proved, and the counsel on the other side, that the proof was insufficient. Mr. Justice Powell said (1)," he thought the paper had "not been sufficiently proved to be subscribed by the "bishops. It is too slender a proof for such a case. I "grant you," he added, " in civil actions a slender "proof is sufficient to make out a man's hand, as by a "letter to a tradesman or a correspondent, or the like; "but in criminal causes, such as this, if such a proof is "allowed, where is the safety of your life, or any man's "life here?" The judges were equally divided in opinion, and the paper was not allowed to be read. Thus it appears, that at that time the rule of evidence, which has been mentioned, was not admitted in criminal cases, though even then it was acknowledged to be reasonable in cases of a civil nature. But this distinction is no longer made. If the rule is true in the one case, it must be equally true in the other; for the rules of evidence, which are the laws of truth, must be uniform and universal.

of hand

In the cases which have been mentioned, the proof of Comparison hand-writing is founded on a knowledge of the general cha- writing. racter. The witness is supposed to have formed a standard in his mind, and with that standard to compare the writing in question. But no other kind of comparison will be allowed. It is an established rule of evidence, that handwriting cannot be proved by comparing the paper in dispute

with any other papers acknowledged to be genuine. The

reason, usually assigned, is, that unless a jury can read, they would be unable to institute a comparison, or judge of the supposed resemblance (2); a reason, however, which appears to be too narrow for a rule of such general application. Another reason, for rejecting such a comparison,

(1) P. 345

(2) Macferson v. Thoytes, Peake

N. P. C. 20. Brookbard v. Woodley,
do. n. (b).

Bb 2

seems

seems to be, that the writings intended as specimens to be compared with the disputed paper, would be brought together by a party to the suit, who is interested to select such writings only as may best serve his purpose, and they are not likely therefore to exhibit a fair specimen of the general character of hand-writing. It has been thought by some an inconsistency in the rules of evidence, to allow a witness to compare in his mind the disputed paper with the impression which a short and transient view of writings may have made upon his memory; yet, on the other hand, not to permit the jury to compare it with writings, proved to be authentic, present in court, and open for inspection. The only answer which occurs to this objection, is that before suggested, namely, that the writings, which are produced as specimens, having been selected by an interested party to serve a present purpose, are open to suspicion, and liable to the imputation of contrivance.

When the antiquity of a writing, purporting to bear a person's signature, makes it impossible for a witness to swear, that he has ever seen the party write, it has been held sufficient, if the witness has become acquainted with his manner of signing his name, by inspecting other ancient writings which bear the same signature, provided those ancient writings have been treated and regularly preserved as authentic documents. Thus, where a parson's book was produced to prove a modus, the parson having been long dead, a witness who had examined the parishbooks in which the same parson's name was written, was permitted to swear to the similitude of the hand-writing; "for it was the best evidence in the nature of the thing, for the parish-books were not in the plaintiff's power to produce (1)." Hence it may be inferred, that if the parishbooks could have been produced, they might have been brought into court, and a comparison made between those signatures and the signature in question. And this infer

(1) Per Ld. Hardwicke in Chanc. Dec. 1746, cited in Bull. N. P. [236.]

ence