of the party; if he admits that it is, he may then be asked, with the view of testing his credit, whether that paper contains the same peculiarity (x); and, if it does not, that paper might probably be laid before the jury to shew that the judgment of the witness on that subject was not of much value (y). cumstances proof of handwriting by re semblance. § 241. Whatever may be the relative value of the Infirmative cirabove modes of proof of handwriting when compared affecting all with each other, it is certain that all such presumptive presumptive proof is even in its best form precarious, and often extremely dangerous (z). "On a forgotten matter we can hardly make distinction of our hands (a)." "Many persons," it has been well remarked, "write alike; having the same teacher, writing in the same office, being of the same family, all these produce similitude in handwriting, which in common cases, and by common observers, is not liable to be distinguished. The handwriting of the same person varies at different periods of life: it is af fected by age, by infirmity, by habit (b)." And the two (r) Young v. Honner, 2 Moo. & R. 536. (y) See Brookes v. Tichborne, 5 Exch. 929. (z) Huberus, Præl. Jur. Civ. lib. 22, tit. 4, n. 16; Wills, Circ. Ev. 111, 3rd Ed.; and see the judgment of Sir J. Nicholl in Robson v. Rocke, 2 Add. Eccl. Rep. 79. (a) Twelfth Night, Act 2, Scene 3. (b) Per Adam, arguendo, in R. v. Mr. Justice Johnson, 29 Ho. St. Tr. 475. See also, per Sir J. Nicholl in Constable v. Steibel, 1 Hagg. N. R. 61. "Literarum dissimilitudinem sæpe quidem tempus facit, non enim ita quis scribit juvenis et robustus, ac senex et forte tremens, sæpe autem et languor hoc facit: et quidem hoc dicimus, quando calami et atra- Ancient practice respecting writing. following instances shew the deceptive nature of this kind of evidence. The first is related by Lord Eldon, in the case of Eagleton v. Kingston (c). A deed was produced at a trial, purporting to be attested by two witnesses, one of whom was Lord Eldon. The genuineness of the document was strongly attacked; but the solicitor for the party setting it up, who was a most respectable man, had every confidence in the attesting witnesses, and had in particular compared the signature of Lord Eldon to the document with that of pleadings signed by him. Lord Eldon had never attested a deed in his life! The other case occurred in Scotland, where, on a trial for the forgery of some bank notes, one of the banker's clerks whose name was on a forged note swore distinctly that it was his handwriting, while he spoke hesitatingly with regard to his genuine subscription (d). Standing alone, any of the modes of proof of handwriting by resemblance are worth little-in a criminal case nothing-their real value being as adminicula of testimony. We constantly, indeed, see in practice, especially in actions on bills of exchange and promissory notes, verdicts given against a defendant on the sole proof of his handwriting by resemblance; but then his not producing evidence to disprove that adduced raises an additional presumption in favour of the plaintiff. Slight evidence, uncontradicted, may become cogent proof. § 242. Our ancient lawyers appear to have used the proof of hand- expression, “comparison, or similitude of handwriting," in its more proper and enlarged sense; as designating any species of presumptive proof of handwriting by comparison, either comparison with a standard previously created in the mind ex visu scriptionis or ex scriptis olim visis, (c) 8 Ves. jun. 476. (d) Case of Carsewell, Glasgow, 1791; Burnett's Commen taries on the Criminal Law of Scotland, 502; Wills, Circ. Ev. 112, 3rd Ed. or direct comparison in the modern sense of the word; and to have considered that any of these modes of proof were admissible in civil, and none of them in criminal cases (e). This distinction is, however, now completely abandoned; and it is settled that the rules regulating the admissibility of evidence are, in general at least, the same in civil and criminal cases (ƒ). (e) See the note to the case of Doe d. Mudd v. Suckermore, 5 A. & E. 752; and it seems to have been on this principle that the attainder of Algernon Sidney, in 1683, was reversed by statute. His trial and the statute will be found in 9 Ho. St. Tr. 817, et seq. (f) See Part 1, ch. 1, § 94. PART III. RULES REGULATING THE ADMISSIBILITY AND EFFECT Primary and secondary rules of evidence. § 243. THE rules regulating the admissibility and effect of evidence are of two kinds-PRIMARY and SECONDARY: the former relating to the quid probandum, or thing to be proved; the latter to the modus probandi, or mode of proving it. They will be considered in two separate books. BOOK I. PRIMARY RULES OF EVIDENCE. The primary rules of evidence. § 244. THE primary rules of evidence may all be ranged under three heads: in which we accordingly propose to examine them. 1. To what subjects evidence should be directed. These rules, as stated in a former part of this work (a), have their basis in universally recognized principles of natural reason and justice; but owe the shape in which they are actually found, and the extent to which they prevail, to the artificial reason and policy of law. (a) Part 1, ch. 2, § 110. CHAPTER I. TO WHAT SUBJECTS EVIDENCE SHOULD BE DIRECTED. be directed and ject of investi gation. § 245. Of all rules of evidence, the most universal Evidence should and the most obvious is this-that the evidence adduced confined to the should be alike directed and confined to the matters which matters which are in dispute, are in dispute, or form the subject of investigation. Its or form the subtheoretical propriety can never be matter of doubt, whatever difficulties may arise in its application. The tribunal is created to determine matters in dispute between contending parties, or which otherwise require proof; and, anything which is neither directly nor indirectly relevant to those matters, ought at once to be put aside, as beyond the jurisdiction of the tribunal, as tending to distract its attention and to waste its time. "Frustrà probatur quod probatum non relevat" (b). "Evidence to the jury,” says Finch (c), "is anything whatsoever which serves the party to prove the issue for him: but that which does not warrant the issue, is void; as in a formedon, and the gift traversed, the demandant shall not give in evidence another donor." So on the trial of an indictment for stealing the property of A. B., and also for receiving it knowing it to have been stolen, evidence of possession (b) Broom's Maxims, xxiv. 2nd Ed. "La liberté d'alléguer et de prouver des faits, ne s'étend pas à toutes sortes de faits indistinctement; mais le juge ne doit recevoir la preuve que de ceux qu'on appelle pertinens; c'est-à-dire dont on peut tirer des conséquences qui servent à établir le droit de celui qui al- (c) Finch, Comm. Laws, 61 b. |