1816. Although comparison of hand-writing ble evidence, when the fact to be proved is the handwriting of a particular per A BURR v. HARPER. CTION on a special contract in writing. prove the signaHe stated that is not admissi- hand-writing of the defendant. A witness was called by the plaintiff's counsel to ture of Harper to the agreement. he once saw him sign his name to a paper which son, whose sup he then had in his possession; that the fact made 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 posed signature is upon a pa per put into hand, yet, if such witness has a docu is affixed the to which was the defendant's or not; that he would not hand-writing venture, from the mere inspection of the paper, to of that person, form a belief on the subject; but that, by compar (as to whose question arises) and signature the ing the signature of the agreement, to which he was required to speak, with that which was subnent 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 which docu nuine sub scription, he has a right to recur to it for the purpose of refreshing his memory; a ba. sis being first laid in his having once seen sign his name, fendant's writing. Best and Pell, serjeants, objected, that this evidence could not be received. The witness's testimony amounted to nothing more than an opinion the defendant formed upon a comparison of hand-writing. He though he had did not profess to have any independent knowledge forgotten the 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 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 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 HARPER. question. This standard will be more or less perfect, v. 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. Rex v. Cator, 4 Esp. 117. 145. Brune v. Rawlins, 7 East, 282. n. (a) as ruled by Morewood v. Le Blanc J. 1816. BELL and Others v. NIXON. in consequence of HIS was an action on a policy of insurance, bearing date the 17th of April, 1816, on 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, 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 therefore which was on the policy, sured was abandon be that the as bound to call upon the for a total loss; the ship not being a wreck, but, however maimed and of the plaintiffs conceived it impossible to remove fore he could her to any port for the purpose of repair; nor could underwriters she be repaired at Limerick. She was surveyed, condemned, and broken up; judged to be the best proceeding for all the parties damaged, exconcerned. 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 as a ship. 1816. BELL and Others U. ΝΙΧΟΝ. defendant, contended, that the assured were bound to abandon; the ship existing in specie. Although there was no dock at Limerick, that circumstance could make no difference. They have sold the vessel without giving notice of abandonment. They cited Martin v. Crockatt, 14 East 465. Best and Copley, serjeants contrà.-The principle is this; if the ship exist as a ship, there must be an abandonment; but in the present case no abandonment was necessary. The ship did not exist as a ship. She did not subsist as the same sort of thing which she did previous to the voyage. This is not a case of the mere suspension of the voyage. The ship was destroyed. The only necessity of abandonment is where the ship remains capable of performing the functions of a ship; and where the voyage is merely interrupted by the perils of the sea. In this case the ship was in effect destroyed. She was entirely and perpetually gone. Abandonment cannot alter the relative rights of the parties. Abandonment is not necessary in the case of a wreck. The loss here was, in substance, a wreck. DALLAS, J.-I shall not nonsuit the plaintiffs on this objection. The assured has a right to abandon under certain circumstances; and, in some cases, he may claim a total loss without abandonment. But, if the case be doubtful, the assured ought not to take upon himself to determine for the underwriters; to break up the ship; and to call upon them for a total loss. I think that he |