formation of witnesses acquainted with the supposed writer, who, from seeing him write, have acquired a knowledge of his hand-writing: 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 hand-writing. This course of examination evidently involves two questions; first, *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 inquiry, 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 * 365 366 has seen the person write, he will be competent to speak to his hand-writing (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 *bills of exchange, and that he believed the paper to have been written by him: this evidence was objected to as a comparison of hand-writing, 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 hand-writing 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 hand-writing, 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 (1)." However, if the printed report of the trial is correct, something more than the mere comparison of hand-writing was laid before the jury; for, according to that report, the first witness had seen the pri soner 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). *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 believe, that the specimens, from which the witness has derived his knowledge, were written by the supposed writer 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 seen the person in the act of writing; for the latter may have seen him write but seldom, 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 fairer specimen of the general character of hand-writing. *་ The first reported case, in which the admissibility of this (2) See also the case of De la Motte, 1731, in vol. 21 of Howell's New Coll. of St. Tr. 810. (a). (a) Vide Rex v. Tandy, 2 M Nally 409. Rex v. Shears, Id. 416. Rex v. Jackson, & 4Day's Esp. Rep. 273. a. et seq. * 367 * 368 kind of evidence appears to have been decided, is the case of Lord Ferrers v. Shirley, which is thus stated in Fitzgibbon's Reports (1). "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 were called to swear to the hand-writing of the subscribing wit nesses then dead, and amongst others, one J. J., who would *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 hand-writing, 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 hand-writing is to be proved in England, a witness here may swear to his hand, by having seen the (1) P. 195. 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 hand-writing 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 might be able to judge of the resemblance between the hand-writing of the letters and that on the deed; but this was overruled 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 overruled. 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 * 369 |