question, but had not seen it for several years, that he could not say anything to a certainty; that the disputed signature looked like, and probably might be, her signature; that it probably was her signature, and that it had a general appearance like her signature as he remembered it, but that he did not know that he had information enough from which to form an opinion that he would abide by,-while not strong or positive, amounted practically to the expres sion of an opinion, and was sufficient to allow the paper to be read in evidence. Talbott v. Hedge (1892) 5 Ind. App. 555, 32 N. E. 788.

Where the question in dispute was the origin of certain alterations in an instrument, the evidence of a witness that he was familiar with the handwriting of one of the parties, and that while it was difficult to state positively that the interlineation was in that person's handwriting, "upon good faith and upon his knowledge" it was, was sufficient to admit the instrument in evidence in its altered condition, "since proof of handwriting must always be more or less a matter of opinion." Thalheim v. State (1896) 38 Fla. 169, 20 So. 938.

As was seen above, Garrells v. Alexander was discredited in Eagleton v. Kingston upon the point that it was sufficient if the witness said the writing in question was "like" the handwriting of an individual; but there are authorities to the same effect in this country.

So in State v. Farrington (1894) 90 Iowa, 673, 57 N. W. 606, it was enough that a witness said that the handwriting in question was "very similar" to that of the supposed author; in Shitler v. Bremer (1854) 23 Pa. 413, that in the opinion of two witnesses the writing "re sembled" it; and in the case of the supposed author admitting that the signature "resembled" his, the evidence was enough to admit the instrument bearing it. White v. Solomon (1895) 164 Mass. 516, 30 L. R. A. 537, 42 N. E. 104.

So on a criminal trial when the prosecution introduced a letter which was proved to have been received by the person to whom it was addressed, from a witness in the case who was adverse to the prosecution, being betrothed to the accused, and who when called by the prosecution swore that it was written by the accused, but upon cross-examination, being asked whether she knew the letter was in the accused's handwriting, answered that it looked like his handwriting, but that she would not swear that it was his, it was held that the letter was admissible. Gross v. State (1884) 62 Md. 179. In Pennsylvania, however, it has been held that the evidence of a witness as to whether a signature is that of a certain person, that "it looks like it," is insufficient to justify the admission of the signature for any purpose. Fullam v. Rose (1897) 181 Pa. 138, 37 Atl. 197. It has also been held that it is proper to exclude the question whether the witness is able to say if to the best of his "impression" a paper is in the handwriting of an individual. It was like asking a witness what his understanding of a conversation was. Carter v. Connell (1836) 1 Whart. 392.

Yet in Hopper v. Ashley (1849) 15 Ala. 457, It was held to be proper to ask a witness whether the handwriting of the person in question, which he had seen executed, had made or left any impression on the witness's mind of the general character of the handwriting; and if so whether the signature of the writing presented to him

made an impression upon his mind amounting to a belief that it was the writing of that person.

And the "strong impression" of the witness, with his declaration that the handwriting in question "looked like" the genuine, was enough. Hopkins v. Megquire (1852) 35 Me. 78.

The witness must be able to distinguish the signature as that of the person in question, according to his belief, founded on his previous knowledge of that person's handwriting, in or der to prove it. Putnam v. Wadley (1866) 40 Ill. 346.

In United States v. Dowden (1843) 1 Hayw. & H. 145, Fed. Cas. No. 14, 990a, after a witness, examined as to the handwriting of the accused, had stated that he was familiar with his handwriting, and that there was nothing in the writing shown him that he could positively identify as his, the court ruled that the witness must answer from his knowledge of the handwriting, and come to a conviction in his own mind as to his belief that it was or was not in his handwriting; he must be convinced and speak from conviction.

If the witness says he has no opinion in regard to whether a signature is that of the supposed writer it is not error to exclude him from testifying; but if the witness is permitted to answer that he can form, and has, no opinion in regard to the genuineness of the signature, the error, if any, is harmless; for his testimony throws doubt upon, rather than tends to establish, the genuineness of the signature. Re Diggins (1895) 68 Vt. 198, 34 Atl. 696.

And a witness who used to have some recollection of the handwriting of the person in question, and said that he "rather thought he couid form an opinion of his hand," was properly excluded under the rule that some belief or opinion is necessary. Burnham v. Ayer (1858) 36 N. H. 182.

The rule was not satisfied in the case of a witness who did not declare his opinion or be lief that the disputed writing was or was not in the handwriting of the person alleged to have written it; that he could not swear positively that it was his, or that it had a close resemblance to his, or that he saw nothing differing from the character of his writing; from all that his testimony showed he might have entertained decided opinions either way. Nothing but belief or opinion is competent as proof of the sig nature. Wiggin v. Plumer (1855) 31 N. H. 251.

And proof by a witness who had seen the defendant write but once, that he was not familiar with and did not know the defendant's handwriting, and could not say whether the note in question was in his handwriting; without more and without any special instructions as to the necessary extent of a witness's knowladge or acquaintance with the handwriting,— did not show that the knowledge of the witness was sufficient to render him competent to give an opinion. Nelms v. State (1890) 91 Ala. 97, 9 So. 193.

The testimony of a witness as to the signature of a partnership name, who had seen one of the partners write his name two months before the trial and also five years before, that he believed the signature to be in his handwriting. but would not be able to testify to his handwriting from the fact alone of having seen him write five years before; that he made up his opinion from looking at the handwriting which he saw him write two months before; that he

could not say that part of the signature, the name of the other member of the firm, was in his handwriting, and that it did not look like his, but that both names appeared to have been written by the same hand,-was not sufficient to permit the instrument to be read to the jury. The evidence was so slight that it would have been scarcely sufficient to uphold a verdict if the question as to its sufficiency had been properly submitted to the jury; and the judge erred in not leaving it to the jury, under proper instructions, to say whether the signature was or was not the handwriting of the partner whose the witness's evidence showed it to be. Utica Ins Co. v. Badger (1829) 3 Wend. 102.

When a witness has testified that, if a good imitation of the signature of the person in question were produced, he would call it his, as in the case of anybody eise's; that he did not know that he was sufficiently familiar with his handwriting to discriminate between a genuine and a tolerably good imitation of the signature,his evidence is competent, and the degree of weight that it deserves is a question for the jury, and not for the court; at all events upon such evidence it would have been error to exclude from the consideration of the jury the question whether the signature was or was not genuine. Magee v. Osborn (1865) 32 N. Y. 669. Upon evidence of a witness acquainted with the handwriting of a person whose signature was in dispute, that it was like his handwriting, but that he did not think it was genuine because he knew him to be a man too well acquainted with the world to sign such an instrument, it was held by Lord Kenyon that the jury might take all circumstances into their consideration, but the witness should form his opinion from the character of handwriting only. Da Costa v. Pym (1796) Peake N. P. Add. Cas. 144.

1. Identity of the writer.

In order to prove handwriting purporting to be that of one of the parties, the evidence of a witness who is acquainted with the handwriting of a person bearing the same name is incompetent without proof of the identity of the two persons bearing the same name. Kinney v. Flynn (1852) 2 R. I. 319.

It is to be noticed, in this connection, that the question of identity is of much less importance in the case of evidence going to show the genuineness of disputed handwriting than when the testimony tends to show the contrary; but this distinction does not seem to have been made in any of the decisions.

A witness who had never seen the defendant, but had corresponded with a Samuel Fry, of Plymouth Dock, and had so addressed his letters and had received answers from him, was competent to prove his handwriting, upon another witness swearing that the defendant, Samuel Fry, lived at Plymouth Dock, and that there no other person of that name living at Plymouth Dock, within his knowledge; this was at least evidence for the jury to consider whether the letters alluded to by the witness were not written by the defendant. Harring ton v. Fry (1824) Ryan & M. 90, 9 J. B. Moore, 344, 2 Biug. 179, 1 Car. & P. 289, 3 L. J. C. P. 244.

was

In an action against Henry Thomas Ryde as acceptor of bills of exchange, proof by the cashier of a bank that he knew the defendant's

handwriting from having, as cashier, paid checks drawn in the name of the defendant, although he had never seen the defendant write and did not know him, was held to be sufficient prima facie evidence of identity; the fact that the defendant is a person of the same name as that of the person whose handwriting is known is some evidence of identity until another person is pointed out who might have been the acceptor. Roden v. Ryde (1843) 4 Q. B. 626, 3 Gale & D. 604, 12 L. J. Q. B. N. S. 276, 7 Jur. 213.

In an action on a bill of exchange against the acceptor, where the only evidence to show the handwriting of the defendant was that of a bank clerk, who swore that, two years before, be had seen a person calling himself "‘Sir J. C. Anderson, Bart.,' enter his name in a book there as J. C. Anderson;' that he did not know the individual and had never seen either him or the book since, . [but that] he thought the handwriting [in question] the same as that in the book; and that he had since secn checks similarly signed pass through the banking house," it was said by the court: "The evidence of handwriting was certainly extremely slender, but we are not prepared to say that it was an absolute blank." Warren v. Anderson (1839) 8 Scott, 384.

So to prove a signature the evidence of a bank clerk who said that a customer of the same name kept an account in the bank and had written his signature in its books, that he had paid checks signed with that name, and that he believed that the signature to the letter in question was the handwriting of the person who kept that account; and the evidence of another witness, that the person in question had directed him to address him at a certain place; with the evidence of a third, that he directed two letters to a person of the same name at the same address, to which letters he had received answers, and that he believed the letter in question was in the same handwriting as the answers he had received,-was sufficient evidence to show the identity of the individual, and to admit the letter. Murieta v. Wolfhagen (1849) 2 Car. & K. 744.

In an action on a bill of exchange directed to "C. B. C., East India House," and accepted "C. B. C.," evidence of a witness that the handwriting of the acceptance was that of a person of that name who was formerly a clerk in the East India House, but had left it five years ago, but that he did not know whether that Mr. C. was the defendant, was sufficient evidence of the identity of the person. Greenshields v. Crawford (1841) 9 Mees. & W. 314, 1 Dowl. N. S. 439, 11 L. J. Exch. N. S. 372, 6 Jur. 308.

register.

A copy of a register of marriage signed in the name of one who had been curate of the parish eighty years before was proved by the evidence of a witness who had been parish clerk, that the same signature in the same handwriting appeared in several places in the original In this case, it was said that to seek about for all persons bearing his name in order to identify the individual at that great distance of time would have been a useless waste of labor; he was the proper officer to give out such a document, and the proof of his writing as such was the same as that received in respect to entries by corporate officers, stewards, etc. Doe er dem. Jenkins v. Davies (1847) 10 Q. B. 314, 16 L. J. Q. B. N. S. 218, 11 Jur. 607.

The indorsement upon a promissory note of "Bradner & Co." was sufficiently proved by the testimony of a witness who had corresponded with a firm of that name in New York, that from his knowledge of their signature, thus acquired, his opinion was that the indorsement was their signature; this in the absence of evidence of any other firm of that name was prima facie evidence which was sufficient to justify the court in admitting the note to be read to the jury. Clark v. Freeman (1855) 25 Pa. 133. But in a New York case a contrary result was reached upon similar facts, although Harrington v. Fry (1824) Ryan & M. 90, 9 J. B. Moore, 344, 2 Bing. 179, 1 Car. & P. 289, 3 L. J. C. P. 244, supra, was approved. The court said: "The checks from which the witness derived his knowledge of the handwriting, as well as that on which the action was brought, may either have been forged with intent to defraud the defendant, or they may have been genuine checks drawn by some other person of the name of Cunningham. The witness had never seen the defendant write, and did not know him. The checks were signed 'S. A. Cunningham,' and there was no proof, either that the defendant had ever subscribed his name in that manner, or that there was not some other person in the city of New York who did so sign his name. The initial letter 'S' may as well stand for Solomon as for Samuel; but should we assume that in these checks the letter stands for Samuel, there may be other men in the city of the same name with defendant." Cunningham v. Hudson River Bank (1839) 21 Wend. 557.

On an issue as to the genuineness of a bill of exchange purporting to have been executed by a partnership, the testimony of a witness who was unable to swear to any knowledge of the handwriting of either member of the firm, that he had frequently received notes executed in the name of the partnership which he had presented at their place of business, that they were paid by the firm, and that the bill in question was in the same handwriting as those notes, was competent. That was sufficient to allow the bill to go to the jury, whose province is to determine how much credit ought to be allowed to the judgment and integrity of the witness. Gordon v. Price (1849) 32 N. C. (10 Ired. L.) 385.

m. Competency as affected by previous compari

sons.

Ordinarily the fact that a witness to handwriting with which he is acquainted has, before the trial, resorted to other specimens of the same hand for a private examination will not disqualify him.

In a very early case this was the rule laid down. A witness who had not seen the prisoner write for fourteen years, but had received letters from him five years before, was allowed to testify to his opinion of the genuineness of handwriting alleged to be the prisoner's, although he declared that he chiefly founded his belief upon a comparison which he had made of the disputed writings with letters which he had received from the prisoner. Layer's Case (1722) 16 How. St. Tr. 93, 197.

When the witness professes to have a proper knowledge of the hand without the aid of any such previous comparison, the fact that he has refreshed his recc!lection of it before the trial from papers which he knows to be genuine

is no objection to his testimony. Redford v. Peggy (1828) 6 Rand. (Va.) 316; Remington Paper Co. v. O'Dougherty (1880) 81 N. Y. 474; Thomas v. State (1885) 103 Ind. 419, 2 N. E. 808.

The fact that witnesses who had seen the person whose signature was in question write, in their depositions volunteered a mention of recent comparison with other signatures by the same person, was not sufficient, as against their specific answers that they were acquainted with the handwriting, to disqualify them. Morell (1901) 157 Ind. 179, 60 N. E. 1092; United States v. Larned (1833) 4 Cranch C. C. 312, Fed. Cas. No. 15,565.

Morell v.

And the fact that a witness who had seen persons write, and had acquired in that way his knowledge of their handwriting, had made a comparison of signatures "supposed" to be theirs with the signatures attached to the will in question, did not disqualify him as a witness, nor constitute a valid objection to his testimony. Miller v. Coulter (1900) 156 Ind. 290, 59 N. E. 853.

When, however, the witness admits that without having made such a comparison he would be unable to distinguish a disputed specimen of the same handwriting, another question is presented, and the decisions are conflicting; the case being in effect the same as that of comparison in court by a nonexpert witness, not at all acquainted with the handwriting in question, of the disputed with genuine signatures; except that when the comparison has been outside the court there is no safeguard as to the genuineness of the specimens used as standards, and that the witness must have attempted the comparison with some predisposition as to the genuineness of the disputed signature; so that, logically, the evidence is not good. Most of the cases, however, admit it.

In Redford v. Peggy (1828) 6 Rand. (Va.) 316, the court was evenly divided upon the question whether a witness called to prove handwriting is competent, who says that he has often seen the person in question write his name, but that he would not be able to prove the handwriting unless he had compared it with the signatures which he had seen made.

But in Pepper v. Barnett (1872) 22 Gratt. 405, it was held, all concurring, that it is proper to admit a witness who states that he has seen the person in question write but once, and then only to make her signature; that he would not be able, from his knowledge of her handwriting, to distinguish it from that of others, but that he is of opinion, from comparing the present signature with the one he has seen her make, and from other circumstances not disclosed by the witness, that it is in her handwriting. The decision is upon the ground that the witness, having seen the person write her signature once, was competent to And to the same effect testify at all events. are Hopkins v. Simmons (1805) 1 Cranch C. C. 250, Fed. Cas. No. 6,691, and Smith v. Walton (1849) 8 Gill, 77.

So in Lyon v. Lyman (1831) 9 Conn. 55, it is decided that the testimony of witnesses who are acquainted with the character of the handwriting in question, that they believe the disputed document to be the same handwriting, is admissible; although on cross-examination they say that they do not know that they are sufficiently acquainted with it to determine the writing to be genuine, except by comparing it

with writings proved to be so; the objection goes entirely to the weight of the testimony, and not to its admissibility.

But in Georgia a witness who is not an expert is incompetent to testify to the authorship of handwriting if his opinion is founded wholly upon a comparison of the signature which he saw written with the one in question. It makes no difference that he saw the genuine one written, unless he also testifies that by that means or some other he knows, or would recognize, the handwriting of the person who wrote it. Wimbish v. State (1892) 89 Ga. 294, 15 S. E. 325.

And in Rhode Island it is within the discretion of the court to instruct the jury that the evidence of a witness who is familiar with the handwriting of the person in question, which is derived from a comparison of the disputed writing with the genuine writing, is not proper evidence for them to consider. Kinney v. Flynn (1852) 2 R. I. 319.

It is not error to allow a witness who swears that he has seen and read a letter which the accused admitted that he wrote, to testify that the handwriting of a document produced on a former trial was similar to the letter, and that he thought that it was the same; the fact of having seen and read an admitted letter was enough to establish, at least prima facie, the witness's acquaintance with the handwriting, and so to admit his testimony. Redd v. State (1898) 65 Ark. 475, 47 S. W. 119.

In an action on a lost note, the signature must be proved by witnesses who have seen the maker write and are familiar with his signature, or who have seen letters or other documents which he has recognized or admitted, in the course of business, to be his own handwriting. Putnam v. Wadley (1866) 40 Ill. 346.

A witness who had made copies of 25 or 30 maps on record, made and signed by one person, was qualified to testify as to his opinion of the genuineness of the signature upon a traced map purporting to have been made by

If it is necessary to prove the handwriting of an instrument which it is not possible, on account of its loss or destruction, to produce in court, a problem is presented different from the ordinary case on account of the difficulty of the proof. Ordinarily handwriting is proved by a juxtaposition and comparison, by expert witnesses or by the jury, of the disputed writing with genuine writings, or by a comparison of the disputed writing with the mental image of other and genuine writings in the mind of the witness.

In the case of lost or destroyed writings, although juxtaposition in court is not possible, there are also two means of proof, which, however, are of less convincing weight than in the ordinary case; so that the ordinary standard of admission of testimony is not proper to be adopted. One of the two methods of proof is by a comparison, by a witness unacquainted with the handwriting of the person whose handwriting is in question, of his mental image of the disputed writing with other and genuine writings of the same person which are produced to him in court; this is almost necessarily of the lowest value as proof, since the attention of the witness is rarely so attracted to an example of a handwriting of which he has no previous knowledge as to leave in his mind an image of much clearness. (As to opinion testimony of this kind, see the note upon Comparison of Handwriting, div. XIII., to University of Illinois v. Spalding, 62 L. R. A. 817.)

The other method is by the comparison by the witness of his mental image of the disputed writing with his mental image of the character of the genuine handwriting as impressed upon his mind from supposedly genuine examples of it; and this is the method here discussed.

So it is held that, where the question is the genuineness of a missing document, greater caution is necessary than under ordinary circumstances where the questioned document is before the court; and the testimony of a witness as to the handwriting of a missing document, that he believed it to have been in the handwriting of one of the parties, but that he had no positive proof of it, was not sufficient to warrant its contents to be proved. Hart Eckles (1860) 4 Phila. 48.

v.

and although the tracing could not be produced in evidence, having been burned. Hamilton v. Smith (1902) 74 Conn. 374, 50 Atl. 884.

The contents of a lost letter-its nonproduction being sufficiently accounted for-might be shown upon proof of the handwriting by the testimony of a witness who had never seen the supposed author of it write, but had become conversant with her handwriting by seeing frequent letters purporting to be signed by her, which the witness's father said came from her, and also by seeing letters containing money, also apparently written by the same person, and directed to the witness's sister. Sutton v. Hayden (1876) 62 Mo. 101.

But in order to prove a lost receipt, a witness who had never seen the person write purporting to have executed it, had never personally communicated with him respecting such letters from him as he had seen, and had never acted upon them so that the alleged author had acquiesced in such acts, and did not know of their adoption by him in ordinary business transactions except as he learned it from another, was not competent; the testimony of the witness must be founded on knowledge of his own, and not on the knowledge of another communicated to him. Power v. Frick (1855) 2 Grant Cas. 306.

Where a party, in order to justify his act in connection with a letter addressed to another person, and received by him, admittedly from the person in question, sought to prove the contents of two other letters, which were not produced and which he swore had been received by a third person from the same individual, and related to the transaction in question, and his only evidence that they were from that individual consisted of his opinion, he never having seen the individual write, that all three were in the same handwriting, although it did not appear that the three letters were ever in his possession at the same time,-this evidence was not sufficient to justify proof of the contents of the two letters. Nunes v. Perry (1873) 113 Mass. 274.

And in order to prove the authorship of a lost letter it was not sufficient to call a witness who had seen such a letter apparently signed by the person supposed to have written it, when the witness's only qualification to testify to that person's handwriting was shown by his state