which was an issue directed to try the genuineness of the handwriting to a warrant of attorney, and where an inspector of franks was called as a witness, and asked, "From your knowledge of handwriting, do you believe the handwriting in question to be a genuine signature, or an imitation?" This was rejected by Wood, B.; and on a motion for a new trial, Chief Justice Abbott said, "I have long been of opinion that evidence of this description, whether in strictness of law receivable or not, ought, if received, to have no great weight given to it. . . . . The other evidence in this case was of so cogent a description, as to have produced a verdict satisfactory to the judge who tried the cause; and I can pronounce my judgment much more to my own satisfaction upon a verdict so found, than if this evidence had been admitted, and had produced a contrary verdict. For I think it much too loose to be the foundation of a judicial decision, either by judges or juries." And Holroyd, J. said, “I have great doubt whether this is legal evidence; but I am perfectly clear that it is, if received, entitled to no weight." Bayley and Best, J.J., concurring, the rule was refused. A somewhat similar notion seems to have found its way to Doctors' Commons, where Sir J. Nicholl is reported to have declined the offer of a glass of high power, used by professional witnesses of this kind, to examine the handwriting and see if the letters were what is commonly termed painted; adding that, in his opinion, the fact of their being painted was in itself an extremely trivial circumstance (d). This is carrying matters a great way, and farther than is usual in courts of common law, which never reject the artificial aid of glasses or lamps, where they can be of assistance in the investigation of truth. That scientific evidence of the nature in question may, in the language of C. J. Abbott, "be much too loose to be the foundation of a judicial decision," may be perfectly true; but to declare it inadmissible as an adminiculum of testimony is rather a strong position. Indeed, its admissibility seems to be recognized in the more recent cases of the Fitzwalter peerage (e), the Tracy peerage (ƒ), and Newton v. Ricketts (g); and according to the present practice it is generally received without objection. The Tracy peerage case also shows that the evidence of persons whose occupation makes them conversant with (d) Robson v. Rocke, 2 Add. E. R. 88, 89. See also Constable v. Steibel, 1 Hagg. N. R. 61, 62; and In the goods of Oppenheim, 17 Jur. 306. (e) 10 Cl. & F. 198. (g) 9 H. L. Ca. 262. manuscripts of different ages is receivable to prove that a given piece of handwriting is of a particular date. § 247. Whatever may be the relative values of the several modes of proving handwriting which have been discussed in this chapter, when compared with each other, it is certain that all such proof is even in its best form precarious, and often extremely dangerous (h). "On a forgotten matter we can hardly make distinction of our hands" (i). "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 affected by age, by infirmity, by habit " (k). The two following instances show the deceptive nature of this kind of evidence. The first is related by Lord Eldon, in the case of Eagleton v. Kingston (1). 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, however, 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 (m). Standing alone, any of the modes of proof of (h) Huberus, Præl. Jur. Civ. lib. 22, tit. 4, n. 16; Wills, Circ. Ev. 111, 3d ed.; and see the judgment of Sir J. Nicholl in Robson v. Rocke, 2 Add. Eccl. R. 79. (i) Twelfth Night, Act 2, Scene 3. (k) Per Adam, arguendo, in R. v. Mr. Justice Johnson, 29 How. 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 atramenti immutatio, similitudinis per omnia aufert puritatem." Nov. LXXIII. Præf. See the able article "Autography," in Cham bers's Edinb. Journal for July 26, 1845, where it is said, "Men of business acquire a mechanical style of writing, which obliterates all natural characteristics, unless in instances where the character is so strongly individual as not to be modified into the general mass. In the present day, all females seem to be taught after one model. In a great proportion the handwriting is moulded on this particular model, &c. We often find that the style of handwriting is hereditary," &c., &c. (1) 8 Ves. 476. (m) Case of Carsewell, Glasgow, 1791; cited Burnett's Crim. Law of Scotland, 502; Wills, Circ. Ev. 112, 3d ed. handwriting by resemblance are worth little, in a criminal case nothing, their real value being as adminicula of testimony. But still, if the defendant does not produce evidence to disprove that which is adduced on behalf of the plaintiff, this raises an additional presumption in favor of the latter. Slight evidence, uncontradicted, may become cogent proof. § 248. Our ancient lawyers appear to have used the expression, comparison, or similitude of handwriting," in its more proper and enlarged sense; as designating any species of presumptive proof of handwriting by resemblance, either comparison with a standard previously created in the mind ex visu scriptionis, or ex scriptis olim visis, or direct comparison in the modern sense of the word, — and to have considered that any of those modes of proof was admissible in civil, and none of them in criminal cases (n). This latter distinction was, however, abandoned in modern times, until its partial revival by the Common Law Procedure Act, 1854 (o); but since the 28 Vict. c. 18, ss. 1 and 8, it may be looked on as completely at an end. (n) See the note to Doe d. Mudd v. Suckermore, 5 A. & E. 703, 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 How. St. Tr. 817, 996. (0) 17 & 18 Vict. c. 125, s. 27; supra, § 245. BOOK III. RULES REGULATING THE ADMISSIBILITY AND EFFECT OF EVIDENCE. PRIMARY AND SECONDARY RULES OF EVIDENCE. § 249. 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 Parts. PART I. THE PRIMARY RULES OF EVIDENCE. § 250. 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. 2. The burden of proof, or onus probandi. 3. How much must be proved. These rules, as stated in a former part of this work (a), have their basis in universally recognized principles of natural reason and jus tice; 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) Bk. 1, pt. 2, § 111. 258 258 264 Evidence not admissible in one point 3. Evidence admissible to prove sub- 264 264 § 251. Of all rules of evidence, the most universal and the most obvious is this, that the evidence adduced should be alike directed and confined to the matters which are in dispute, or which form the subject of investigation. The theoretical propriety of this rule 1 Facts in Issue. - The "facts in issue" in any action are those so constituted by the pleadings or the nature of the investigation. Facts which logically and obviously tend to determine the existence, extent, or nature of the right, liability, or disability asserted or denied in such action, are facts relevant to the issue. As stated in the text, supra, the only facts which may be proved in trials at law or in equity are facts in issue and facts relevant thereto. Conf. Steph. Dig. Law Evid., 3d ed., Art. 1; Schuchardt v. Allens, 1 Wall. 359; McAllister's case, 11 Shepl. 139; Haughey v. Strickler, 2 W. & S. 411; Tucker v. Peaslee, 36 N. H. 167; Jones v. Vanzandt, 2 McLean, 596; Hudson v. State, 3 Cold. 355; Lightfoot v. People, 16 Mich. 507. That the relevancy of evidence may be established after its introduction, see Harris v. Holmes, 30 Vt. 352; Moppin v. Etna Axle Co., 41 Conn. 27. It seems unnecessary confusing of terms to speak of a fact in dispute as a fact in issue. -- Relevancy. Mr. Justice Stephen in his third edition defines relevancy in an unexceptionable manner. Two facts are said to be relevant to each other when so related "that, according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or non-existence of the other." (Dig. Law Evid., Art. 1.) This is relevancy, in |