Lens and Vaughan, serjeants, and F. Pollock, for defendants. This case was moved in the ensuing term; but the opinion of the learned judge, as expressed at the trial, was una nimously adopted by the Court, 1816. BENSON v. SCHNEIDER and Others. 1816. Although Comparison of hand-writing A BURR. HARPER. CTION on a special contract in writing. is not admissi- hand-writing of the defendant. ble evidence, to be proved is the hand writing of a son, per put into hand, yet, if such witness has a docu when the fact called by the plaintiff's counsel to prove the signature of Harper to the agreement. He stated that particular per- he once saw him sign his name to a paper which posed signature he then had in his possession; that the fact made is upon a pa- so slight an impression upon his mind, that, judgthe witness's ing from that single occurrence, he was not able to say whether the hand-writing to the agreement was the defendant's or not; that he would not venture, from the mere inspection of the paper, to form a belief on the subject; but that, by comparing the signature of the agreement, to which he was required to speak, with that which was subment he knows scribed to the paper then in his possession, he was to have his ge- able to swear that he believed it to be the de ment, to which is affixed the han l-writing of that person, (as to whose signature the question arises) and which doen. nuine sub scription, he has a right to recur to it for the purpose of refreshing his memory; a ba. laid in his hav ing once seen sign his name, fendant's writing. He Best and Pell, serjeants, objected, that this eviadence could not be received. The witness's testimony amounted to nothing more than an opinion. the defendant formed upon a comparison of hand-writing. though he had did not profess to have any independent knowledge character of of the character of the defendant's signature. He his hand writ had seen him sign his name once, and it had made no impression upon him. He had formed no standard in his mind which he could undertake for: otten the ing. to apply as a test to the signature of the particular paper. Now it was an established rule in evidence, that hand-writing could not be proved by comparing the paper in dispute with any other paper, although such paper was acknowledged to be genuine. Shepherd, S. G. contrà.-The evidence offered is not a simple comparison of hand-writing. The witness has recourse to the paper to refresh his memory upon the subject. It was evidence to be left to the Jury. DALLAS, J.-How far the comparison of handwriting may be admitted in evidence was much discussed in the case of The King v. Cator. The present case, however, turns upon a different point. It is a case of great novelty and difficulty; but, being required to form an opinion upon the subject, I shall admit it as evidence to be left to the Jury. Comparison of hand-writing has been rejected upon two grounds. 1. That, unless a Jury could read, they would be unable to judge of the supposed resemblance. 2. That specimens may be unfairly selected, calculated to serve the purpose of the party producing them; and, therefore, not exhibiting a fair example of the general character of the hand-writing. These are the grounds alleged for rejecting such comparisons. But the present evidence cannot, in strictness, be called a comparison of hand-writing. What are the materials of judgment to which a witness has recourse when he says that he believes a particular signature to be the hand-writing of a particular 1816. BURR 2. HARPER. 1816. BURR V. HARPER. person? He has seen the person write, and he is presumed to have formed a standard in his mind; and, with that standard, to compare the writing in question. This standard will be more or less perfect, according as the instances have been more or less frequent. The mere fact of having seen a man once write his name may have made a very faint impression upon the witness's mind. But some impression, however slight in degree, it will make; and surely, as the standard exists, and the witness possesses the genuine paper, he may recur to it, to revive his memory upon the subject. Here, a basis is laid in the fact of his having seen the defendant sign his name once. But his memory is defective. He then recurs to a paper which he knows to be an authentic writing. He uses it to retouch and strengthen his recollection, and not merely for the purpose of comparison. I think, therefore, the evidence is admissible. The writing being admitted, the defendant's counsel called witnesses to prove that it was not the genuine signature of the defendant; and the Jury, upon that point alone, found a verdict for the defendant. tiff. Shepherd, S. G. and Campbell, for the plain Best and Pell, serjeants, for the defendant. Morewood v. Rex v. Cator, 4 Esp. 117. Le Blanc J. 145. Brune v. Rawlins, 7 Wood, 14 East 328. Revet East, 282. n. (a) as ruled by v. Braham, 4 T. R. 497. 1816. TH BELL and Others v. NIXON. A vessel is driven into a 1816, on The plain there is no of port, where suffered so much by sea perils, that, upon exami. nation and survey, it was dient to break judged expeher up, and to timber. Held, sell her for old in an action on the policy, that the as HIS was an action on a policy of insurance, bearing date the 17th of April, the ship Dorset, from Hull to Quebec. The plaintiffs claimed a total loss. She sailed on the 27th April, 1816. She stood in Lloyd's book, No. 21, at the time she was insured; but before she sailed, she had been reduced a number, in consequence a survey made previous to the voyage. The policy was valued at 3,500l. The freight of the ship was 2,500l., but was not insured. The ship sailed on her voyage; and, being overtaken by bad weather, ran into Limerick. Limerick has no docks to take in ships of any size. The ship, upon survey, appeared to be considerably damaged. The agents of the plaintiffs conceived it impossible to remove fore her to any port for the purpose of repair; nor could underwriters she be repaired at Limerick. She was therefore surveyed, condemned, and broken up; which was judged to be the best proceeding for all the parties concerned. The Dorset was a Danish prize, isting in specie and there was no record of her age. strictly surveyed; and, when broke up, some of the timbers were found to be rotten; but it was in evidence that she was sea-worthy when she left Hull. She was Shepherd, S. G. and Vaughan, serjeant, for the sured was abandon be bound to call upon the for a total loss; the ship not being a wreck, but, however maimed and as a ship. |