1 Leigh 216 | Va. | 1829
The first point presented to and decided by the circuit court, was this simple and general proposition, Whether on die plea of non est factum, it be proper to submit to the jury, papers proved to .have been written by the
In the case of Redford v. Peggy, the general question, whether evidence by comparison of hands be admissible, was not directly before the court; yet the very nature of that case seemed to bring the point under review; and it will be found, that out of the four judges who sat, two expressly say that-such evidence is inadmissible, and the same conclusion may be fairly drawn from the opinion of a third. The writers on evidence, Peake, Phillips and Starkie, concur in saying, that though there has been formerly considerable diversity, it is now settled law, that evidence by comparison of hands is not admissible; and the cases they refer to, support (I think) the position. It may be remarked, that what is now meant by comparison of hands, is not exactly what was formerly meant. The case of Algernon Sydney, and that of the seven bishops, shew the- ancient meaning. By-comparison is now meant the juxtaposition of two or more writings before the- jury, that it may, from its own inspection and comparison of the paper in contest, with others admitted or proved to be genuine, decide the question. The cases collected by the writers before referred to, shew, that this is not permitted. There is also.a case (Eagleton v. Kingston, 8 Ves. 438.) in which lord Eldon discusses this question with much ability and learning. He says, “ When I first came into the profession, the rule as to hand-writing in Westminster hall, in all the courts, was this: You called a witness, and asked him whether he had ever seen the party
Then, as to the exclusion of the evidence of the remark of Richard Rowt, that his pen had not forgot to write: it is certain, the jury ought to have all the evidence which is relevant: of its weight it is to judge. But, when we are called on to reverse the decision of a judge, it is incumbent on the party seeking this, to shew that there is error; and to this end, lie ought to present to us such a case as shews the relevancy of the evidence rejected. I cannot see it here. The issue was, whether John Rowt had executed the deed,
Green, J. concurred.
As to the evidence offered by the appellant to prove, that after the last trial of this cause, Richard Rowt, in a conversation with the witness about it, said that his pen had not forgot to write; the rest of the conversation, if any was detailed, not being stated, so as to shew the relevancy or irrelevancy of that remark, I am unable to perceive why evidence of such a remark was offered, or indeed why it was objected to. .Richard Rowt may have said many things, which, according to circumstances, or other expressions, might be either relevant or irrelevant; and if the latter, surely the court would not be bound to hear all of his irrelevant conversations and declarations. Indeed, I am not clear, that conversations of his, tending to impugn his own character in this, or any other transaction, ought to be admitted, from the difficulty thrown thereby on the other party, to meet such particular matter, of which he could have no notice. But at present, it suffices to say, that no grounds are given, on which we can say, that the court erred in rejecting this evidence.
The other question, if it involved the whole doctrine of the proof of hand-writing, would be one concerning which the decisions, so far as I have examined diem, are not, I think, very consistent with the general rules of evidence, or with each other, or with the principles by which they pro-
The reason why a witness must see another write in order to form an opinion of the character of his hand-writing, is not, I apprehend, because seeing the party write gives you a knowledge of the character of his hand: he must see the hand-writing itself, after the act of writing is performed, in order to acquire that knowledge. But when he sees the manual operation himself, he knows that the hand-writing, which he at the same time or afterwards inspects, is the hand-writing of the party. He thus acquires a knowledge (more or less perfect, according to frequency and opportunity, and his skill in such matters) of a hand-writing, which he knows to be that of a certain individual; and having this knowledge within his mind, as he has of the human countenance, he compares with it a writing, alleged to be the act of the same individual but which he has not seen him write, in order to decide, whether it does or does not possess the samo characteristick marks. This kind of evidence was formerly called comparison of hand-writing, in as much aS it was, in fact, a comparison thus made in the mind of a witness, in contradistinction to his witnessing the manual operation itself.
But the character of a hand-writing, may be as well or even better known, by one who never saw another write, as by one who has. Cases of this kind occur in a course of a long correspondence, on business, between parties who never saw each other write. The perfect knowledge of hand-writing arises from frequently seeing the writing itself, not the manual operation, from which, without looking- at the writing itself, you can form no opinion. Being accustomed to see the operation, is only full evidence, that the writing which you have thus seen, and the character of which is more or less distinctly impressed on your mind, according to circumstances, is the character of the manual writing of that individual. In the course of business and correspondence, you acquire an equally perfect knowledge of the
The other judges concurred in the opinion, that the judgment should be affirmed.