3

The bent of his mind was essentially practical; all his decrees, orders, and rules may be well worked out and carried into effect, and his first question on any proposed measure was, How will it work? Tried by this test, many a plausible scheme shrinks to nothing. Sir Samuel Romilly's Act for giving a summary remedy in cases of charity, stat. 52 Geo. 3. c. 101., was declared by him to have done more harm than good1, to have been drawn in haste2, and all the proceedings under it for a number of years in the cause then before him to be money thrown away. This he might say more fairly, as both then and on other occasions he acknowledged that he had a hand in it. What can be more equitable than to give a speedy relief to the poor on the representation of the officers of the Crown? But if purchasers, tenants, holders of the legal estate, litigating trustees, and contending parishioners can be included in such relief, it would be a curse, and not a benefit. The Act has not drawn the line, but left it to judicial decision to do so. It would be well, therefore, if it had never passed.

4

Now if this is the case, when the object of the Act is unquestionably praiseworthy, how much more when the policy is questionable, when the hardship is admitted, when wrong must be done to some parties by any alteration of the law of the land? As an opposer of new statutes, as a bar to judicial innovation, as a resister of every alteration of which the consequences were not well foreseen, we have reason to consider Lord Eldon an improver of the law.

Tu maximus ille es

Unus qui nobis cunctando restituis rem.

It may be said, there is nothing of vigour or decision in Lord Eldon's reforms; his suggestions "just hint a fault, and hesitate dislike;" he rather taught others to amend the law, than performed it himself. True. It is seldom we find in the same mind the courage of the soldier, and the caution of the sentinel. To one is given the sagacious head to fit the feather end of the wedge into the exact fissure, to another the

Ludlow v. Greenhouse, 1 Bligh, New, 44. 3 Ib. 80.

2 Ibid, 82.

4 Attorney-General v. Green, 1 Jac. & W. 307.

vigorous and determined arm to drive it home and displace the stone. The planner and the perpetrator share the crime, the inventor and introducer partake in the patent.

This is, as we have before observed, only one of the phases of Lord Eldon's judicial character; a contemplation of the whole of them only can give a proper estimate of its magnitude. Such are, "Lord Eldon's general knowledge,” an amusing subject; "the practical nature of his decrees,” an instructive one; "his strong points," a fruitful topic; "his crotchets," a difficult one; "Lord Eldon compared with the judges of his time," "his judicial patronage," both invidious topics, which, nevertheless, ought to be thoroughly discussed in a sketch of his judicial character.

To conclude, as we begun, with the labor improbus bestowed on his judgments, neither rank, power, nor opulence was its object or reward. All the wealth he possessed, all the titles he obtained and the alliances he formed, all the power and influence he undoubtedly held, would have been his, had he given his judgments as shortly, or, generally speaking, it must be said as unsatisfactorily, as Lord Thurlow. A sense of duty alone incited him to and supported him in the continued toil of a quarter of a century, in erecting and forming a structure which it is the labour of a life to gain an adequate comprehension of.

Εν ΜΑΚΑΡΕΣΣΙ πονων αντάξιος ειη αμοιβη.

ART. IV.-ON THE PROOF OF HANDWRITING.

FEW rules in the law of evidence are more interesting in theory or more useful in practice, than those which relate to the proof of handwriting; yet it is an undoubted fact, that on no subject are the opinions expressed even by sound lawyers less satisfactory or consistent. It will be our endeavour, therefore, in the present Article, to discuss this branch of the law, in the hope that our observations may prove of some service to those who are actively engaged in the conduct of causes at Nisi Prius.

When writings are produced, and it becomes necessary to show by whom they were written or signed, the simplest mode of proof is to call the writer himself, if he be a competent witness, or some person who actually saw the paper or signature written. When such evidence cannot be procured, ás must often be the case, recourse may be had to the testimony of witnesses who are acquainted with the handwriting. Such evidence, indeed, may in all cases be given in the first instance, as the law recognises no distinction between these several modes of proof; but, as it is clearly less satisfactory than direct testimony, any unnecessary reliance on it will raise a suspicion that the party is actuated by some improper motive in withholding evidence of a more conclusive nature.

1

The knowledge of a person's handwriting may have been acquired in both or either of two ways. The first is, from having seen him write; and though the weight of the evidence which depends upon knowledge so obtained, must, of course, vary in degree, according to the number of times that the party has been seen to write, the circumstances, whether of hurry or deliberation, under which he wrote, the interval that has elapsed since the last time, and the opportunities and motives which the witness had for observing the handwriting

1 See 3 Benth. Jud. Ev. 598, 599.

with attention'; yet the evidence will be admissible, though the witness has not seen the party write for twenty years, or has seen him write but once, and then only his surname.3

4

Indeed, on one occasion, a witness was permitted to speak to the genuineness of a person's mark, from having frequently seen it affixed by him on other documents. * The proof, in such cases, may be very slight, but the jury will be allowed to weigh it. The witness need not state, in the first instance, how he knows the handwriting, since it is the duty of the opposite party to explore, on cross-examination, the sources of his knowledge, if he is dissatisfied with the testimony as it stands." Still, the party calling the witness may interrogate him, if he thinks proper, as to the circumstances on which his belief is founded; though, if it should appear that the belief rests on the probabilities of the case, or on the character or conduct of the supposed writer, and not on the actual knowledge of the handwriting, the testimony will be rejected.6 Where a witness, called to establish a forgery, had become acquainted with the signature of the party from having seen him sign his name, after the commencement of the suit, for the purpose of showing the witness his true manner of writing it, the evidence was held inadmissible, Lord Kenyon justly observing that the party might, through design, have written differently from his common mode of signature.7

The second way in which the knowledge of a person's handwriting may be acquired, is by the witness having seen, in the

1 Doe v. Suckermore, 5 A. & E. 730., per Patteson J.

2 R. v. Horne Tooke, 25 How. St. Tr. 71, 72.; Eagleton v. Kingston, 8 Ves. 473, 474., per Lord Eldon.

35 A. & E. 730., per Patteson J.; Garrells v. Alexander, 4 Esp. 37., per Lord Kenyon; Willman v. Worrall, 8 C. & P. 380. ; Burr v. Harper, Holt's N. P. R. 420.; Lewis v. Sapio, M. & M. 39., per Lord Tenterden, who refused to recognise the authority of Powell v. Ford, 2 Stark. R. 164., where Lord Ellenborough rejected the testimony of a witness, who had seen the defendant write his surname only once, the acceptance of the bill in question having been signed at full length. See also Warren v. Anderson, 8 Scott, 384.

4 George v. Surrey, M. & M. 519., per Tindal C. J., after some hesitation.

5 Moody v. Rowell, 17 Pick. 419., overruling Slaymaker v. Wilson, 1 Pennsylv. R. 216.

6 R. v. Murphy, 8 C. & P. 306, 307., per Coleridge J.; Da Costa v. Pym, Pea. Add. R. 144., per Lord Kenyon.

7 Stanger v. Searle, 1 Esp. 15. See Page v. Homans, 2 Sheph. 478.

1

ordinary course of business, documents, which by some evidence, direct or circumstantial, are proved to have been written by such person. Thus, if the witness has received. letters purporting to be in the handwriting of the party, and has either personally communicated with him respecting them, or written replies to them, producing further correspondence, or acquiescence by the party in some matter to which they relate, or has so adopted them into the ordinary business transactions between himself and the party as to induce a reasonable presumption in favour of their genuineness, his evidence will be admissible. So, if a letter be sent to a particular person, and an answer be received in due course, the fair presumption is, that the answer was written by the person addressed in the letter; and consequently, the witness. who received such answer, may be examined as to the genuineness of any other paper, which it is necessary to show was or was not written by the same person.2 Again, the clerk who constantly read the letters, or the broker who was consulted upon them, is as competent as the merchant to whom they were addressed to judge whether another signature is that of the writer of the letters; and a servant who has habitually carried his master's letters to the post, has an opportunity of obtaining a knowledge of his writing, though he never saw him write, or received a letter from him. 3 In one case, an attorney was permitted to speak to the signature of an attesting witness, though his knowledge of the handwriting was solely derived from having seen the same signature attached to an affidavit, which had been filed by the opposite party in a previous stage of the cause. Here the opposite party, having used the affidavit as a genuine document, was in a

1 Doe v. Suckermore, 5 A. & E. 731., per Patteson J.; 2 Nev. & P. 46., S. C.; Lord Ferrers v. Shirley, Fitz. 195., B. N. P. 236.; Carey v. Pitt, Pea. Add. R. 130.; Tharpe v. Gisburne, 2 C. & P. 21.; Harrington v. Fry, Ry. & M. 90.; Burr v. Harper, Holt's N. P. R. 420.; Commth. v. Carey, 2 Pick. 47.; Johnson v. Daverne, 19 Johns. 134.; Pope v. Askew, 1 Tredell,

R. 16.

2

Carey v. Pitt, Pea. Add. R. 130., per Lord Kenyon.

3 Doe v. Suckermore, 5 A. & E. 740., per Lord Denman.

Smith v. Sainsbury, 5 C. & P. 196., per Park J., cited by Lord Denman

in Doe v. Suckermore, 5 A. & E. 740.