prima facie proof of the proprietorship... and are not rebutted by evidence that the criminal assignments of the copyright are in writing but not produced': per Bosanquet C.S., Willetts, 70 J. P. 127, 1906.

Private documents-attesting witness] The execution of a private document, which has been attested by a subscribing witness, must be proved by calling that witness, when the validity of an instrument depends upon its formal attestation.' T. s. 1843: the most ancient. and inflexible of all the rules of evidence running back to the time of the Franks': Phips. 492.

Attesting witness-when proof waived] Where the attesting witness is dead, beyond sea, or cannot be found after strict inquiry, or kept away by the other side': Phips. 494; see Depositions; Anon., 12 Mod. 607, 1701; Cunliffe v. Sefton, 2 East, 183, 1801; or blind: Wood v. Drury, 1 L. Raym. 734, 1699; Pedler v. Paige, 1 Moo. & Rob. 258, 1833; or insane: Currie v. Child, 3 Campb. 283, 1812; or under sentence of death (but see under Incompetency); or absent in a foreign country, or not amenable to the process of the superior courts, being for instance, in Ireland: Prince v. Blackburn, 2 East, 252, 1802; Hodnett v. Foreman, 1 Stark. 90, 1815.

6

Handwriting] In all these cases evidence of the attesting witness's handwriting is admissible, or, if this is not obtainable, by presumptive or other available evidence': Phips. 494. Some evidence must be given in these cases of the identity of the executing party; and although there are cases to the contrary, it is now held that mere identity of name is not sufficient proof of the identity of the party. Whitelock v. Musgrave, 1 Crom. & Mee. 511; 3 Tyr. 541, 1833. The illness of a witness, although he lies without hope of recovery, is no sufficient ground for letting in evidence of his handwriting. Harrison v. . Blades, 3 Campb. 457, 1813. Where the name of a fictitious witness is inserted: Fasset v. Brown, 1 Peake, N. P. C. 33, 1791; or where the attesting witness denies all knowledge of the execution: Talbot v. Hodson, 7 Taunt. 254, 1816; Fitzgerald v. Elsee, 2 Campb. 635, 1811; evidence of the handwriting of the party is sufficient proof of execution. So where an attesting witness subscribes his name without the knowledge or consent of the parties, M'Craw v. Gentry, 3 Campb. 232, 1812. Where there are two attesting witnesses, and one of them cannot be produced (above), it is not sufficient to prove his handwriting, but the other witness must be called. Ib. Cunliffe v. Sefton, above; except for wills of realty: Phips. 492. But if neither can be produced, proof of the handwriting of one only is sufficient. Adam v. Kerr, 1 B. & P. 360, 1798.

Where a person cannot sign his name, but makes his mark, that mark may be proved by any one who has seen him make the mark, and is acquainted with it: per Tindal C.J. with hesitation: George v. Surrey, Moo. & M. 516, 1830. Where a witness had only seen the person sign a bail-bond, and stated that the signature to the bill produced was like the handwriting which he saw, but that he could form no belief on the subject, this was held to be evidence of the handwriting to go to the jury: he was not allowed to form a judgment by comparing the two. Aliter if he had never seen the person write. Garrells v. Alexander, 4 Esp. 37, 1801; or where the witness had only seen the person write his name once, and then for the purpose of making the witness competent to give evidence in the suit. Stranger v. Searle, 1

Esp. 14, 1793. Where the witness has merely seen the party sign his name to another instrument to which he is the attesting witness, and is unable to form an opinion on the handwriting of the party, without inspecting that other instrument, his evidence is inadmissible, because his opinion rests on a comparison of hands.' Filliter v. Minchin, &c., Manning's Digest of N. P. Reports, 131, 1819. In another case, in similar circumstances, Dallas J. allowed a witness to refresh his memory, by referring to a genuine signature in his possession, which he had formerly seen written. Burr v. Harper, Holt, N. P. C. 420, 1816. See Lewis v. Sapio. It is not essential to the proof, that the witness should have seen the person write. There are various other modes in which he may become acquainted with the handwriting. Thus where defendant's attorney stated that he had never seen M. S., an attesting witness to the plaintiff, write, but that her name was subscribed to an affidavit, which had been used by the plaintiff, and that he had examined that signature, so as to form an opinion which enabled him to swear he believed the handwriting in question was hers, this was held by Park J. to be sufficient. Smith v. Sainsbury, 5 C. & P. 196, 1832. Formerly, a document could not, in criminal cases, be proved by comparing its handwriting with other criminal writing of the same hand. See now 28-9 V. 18, 8.

Experts] A witness giving evidence under this s. need not be a professional expert, or a person whose skill in the comparison of handwriting has been acquired in his profession or business. Silverlock, 1894, 2 Q. B. 766; 63 L. J. M. C. 233; 18 Cox C. C. 104; 72 L. T. 298; 58 J. P. 788; C. C. R.; Derrick, 5 Cr. A. R. 162, 1910: the C. C. A. does not necessarily (or even usually) call an expert when handwriting is in issue. Treloar, 9 Cr. A. R. 1, 1913. In Brownhill, 8 Cr. A. R. 258, 1913, that court seemed to think that the evidence of such experts should be conclusive before it is acted on, and itself examined specimens. So it did in T. Rickard, 13 Cr. A. R. 140, 1918, where the jury had no assistance at all: c. q.

Whether the evidence of persons skilled in detecting forgeries is admissible if this was ever in doubt-is not well settled: Phips. 367. Such evidence by a post-office clerk, accustomed to inspect franks and detect forgeries, was admitted in Goodtitle v. Braham, 4 T. R. 497, 1792. Hotham B. thought that a post-office witness might, as an expert, give his opinion whether a handwriting was feigned or natural, Cator, 4 Esp. 117, 1802. See Fitzwalter Peer., 10 Cl. & Fin. at 198, 1843; T. s. 1877; and Expert' Witnesses.

Correspondence] If when letters are sent, directed to a particular person, on particular business, an answer is received in due course, it 18 a fair presumption that the answer was written by the person whose handwriting it purports to be': per L. Kenyon, Cary v. Pitt, 2 Peake, N. P. C. 130, 1797. So a witness had never seen Alg. Sidney, at 854, write, but had paid many 'notes' endorsed by him, without being 'called to account for mispayment': see Admissions by Conduct. To prove handwriting, it is necessary that a witness [not an expert?] should have either seen the person write or corresponded regularly with him or acted upon such a correspondence.' J. O'Brien, 7 Cr. A. R. 31, 1911. The farthest extent to which the rule has been carried is to admit a correspondent to prove handwriting, where he has acted on the letters, ib.; Tharpe v. Gilsburne, 2 C. & P. 21, 1825; and even

if the witness has never done any act on them, Doe v. Wallinger, Mann. Digest, 131, 1819. See further, below.

Execution by agent] Where a party to a deed directs another person to write his name for him, and he does so, that is a good execution by the party himself. Inhabs. of Longnor, 4 B. & Ad. 647, 1833. In such cases the subscription of the name by the agent, and his authority to subscribe it, must be proved.

Blackburn J. in Morton, 1873, said that Spelman's definition of deed (factum) was the best: viz.- scriptum solenne quo firmatur donum, concessio, pactum, contractus et huiusmodi' (Glossary).

Attesting witness dispensed with ancient documents] It is not necessary now to call the attesting witness of any instruments to the validity of which attestation is not necessary: 28-9 V. 18, 7. The former incapacity of convicted persons: Jones v. Mason, 2 Str. 833, 1729, was abolished by 6-7 V. 85, 1. When a document [Phips.: ' deeds and wills': T. s. 87] is thirty years old it proves itself and no evidence of its execution is necessary, however, there, by a presumption of law (which see), ought to be some account given of the deed, where found, &c.' B. N. P. 255; Doe v. Burdett, 4 A. & E. 1, 1835: the first case in which thirty years (instead of forty) were accepted was (Phips. 497) Inhabs. of Farringdon, 2 T. R. 466, 1788. And so with regard to a steward's books of account if they come from the proper custody: Wynne v. Tyrwhitt, 4 B. & Ald. 376, 1821; 'very old letters, signed by the head of the family and brought from the muniment room: Bere v. Ward, 2 Phill. Ev. 246, 10th ed. 1821: see below; a will produced from the Ecclesiastical Court: Doe v. Lloyd, 1806, Peake on Ev. App. xli.; a bond: Chelsea W. Co. v. Cooper, 1 Esp. 275, 1795; and other old writings, e.g. receipts, Fry v. Wood, 2 Selw. N. P. 495, 13th ed. 1738; when the adversary has the document and refuses to produce it: Phips. 495, who gives other instances. Even if the attesting witness is alive and capable of being produced, it is unnecessary to call him where the deed is thirty years old. Doe v. Wolley, 8 B. & C. 22, 1828. If there is any erasure or interlineation in an old deed it ought to be proved in the regular manner by the witnesses, if living, or by proof of the handwriting of at least one, and that of the party, if dead. And this ought more especially to be done if the deed import a fraud' (by the alteration): B. N. P. 255; or it should be shown that possession has accompanied it. Gilb. Ev. 6th ed. 89.

Signatures] See that title.

Inadmissible documents, effect of] See that title.

Books consulted] See Professional Works.

Telegrams] See that title.

Mercantile documents] receipts, bank-books, &c. apparently stand on a peculiar footing when the issue is genuine business or not?: see R. Sagar, when they were excluded for the defence: c. q.

Calling for documents] If one side calls for papers, and inspects them, they will be rendered evidence for the opposite side: Wharam v. Routledge, 5 Esp. 235, 1805; Wilson v. Bowie, 1 C. & P. 10, 1823; if it is material to the issue: Phips. 473. Though it is otherwise, if

one side merely calls for papers without inspecting them. Sayer v. Kitchen, 1 Esp. 210, 1794.

Inspection of documents] Where letters necessary for the defence had been seized under a search-warrant, Keating J. made an order in favour of defendant for an inspection of them (but not for copies). Collucci, 3 F. & F. 103, 1861.

Stamps] By 54-5 V. 39, 14 (4):-'Save, as aforesaid [i.e., in civil proceedings], an instrument executed in any part of the United Kingdom [which includes Ireland], or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done in any part of the United Kingdom, shall not, except in criminal proceedings, be given in evidence or be available for any purpose whatever unless it is duly stamped in accordance with the law in force at the time when it was first executed.' See under Secondary Evidence.

Letters] For the effect of a correspondence, see above; see under this title under Treason; cf. Horne Tooke, below. For complaint by female, see under Hearsay. For old letters, see Bere v. Ward, above, which was followed in Doe d. Thomas v. Beynon, 2 A. & E. 1840, where letters were admitted from a testator, written, in 1796-1800 to a niece, in whose possession they were found when she died in 1837. The normal proof of a letter is by calling the writer or one of the writers: p. 3, where the alternatives are enumerated.

For privileged documents, see that title. Though a witness may be privileged not to produce letters to his firm (and copies), their correspondent may not be so privileged; hence, in Forbes v. Samuel, ib., the firm's letters to a correspondent were produced on subpoena from the latter: K. B. 719.

In Fisher, 5 Cr. A. R. 174, 1910 (obtaining by false pretences), the representation was made to an agent who wrote it to his principal: it was held that this letter was rightly put in, though defendant had never seen it: he knew he was dealing with an agent and authorised the transmission of his statements to the principal. In A. E. Stone, 1910: incest, a letter from defendant admitting that he asked the girl to have connection with him was properly admitted, but his denial therein of the act charged was suppressed: c. q., the C. C. A. disapproving of this suppression.

A letter to defendant was properly excluded, but the judge used part of it against him, but omitted the part which was materially in his favour': c. q. J. Gray, 1911.

Letters not from or to defendant] These are specially relevant in Conspiracy, which see.

Cross-examination] See that title, Co-defendants, Banks, 1916, and Seham Yousry; the fact that defendant has seen a letter to a third person charging him with theft, does not make the contents admissible; nor was his silence on hearing it an admission, and the jury ought to have been cautioned on this point: c. q. Brooks, 1911. On a charge of sending a letter giving information to the enemy, the defence being that the transaction was innocent, the crown crossexamined defendant on three others, written by him to X. partly in German, by merely asking him if he wrote them; the C. C. A. (five judges) thought they might have been put in in chief.

Posting] For proof in the case of certain documents, see under Lunatics.

6

So

Documents found on or in possession of defendant] The papers ought to be read as being his papers which he once had in his possession, if nothing else had been the case': per Pratt C.J. in Layer, at 205, citing L. Preston (or R. Grahme), 12 St. Tr. 740, 1691: per Holt C.J.; so at 296, if that be so [that a witness has sworn truthfully that a paper is in defendant's writing], then all is well, and it ought to be read, not only as a paper that was in his possession, but as a paper that was writ by him': previously, at 211, he had allowed receipts from J[ames] R[ex], found on defendant, to be read: They are not read as if proved, the hand is not proved, bus as papers found on him' [in his possession?]: cf. ib. 192. Eyre C.J.: all papers found in the possession of a man are primâ facie evidence against him if the contents of them have application to the 'issue; 'it is always a very considerable explanation that nothing appears to have been done in consequence': e.g. no answer. Horne Tooke, at 620-1. See also ib. 733. But the documents must be proved to have been in defendant's possession with his knowledge: Huet (forgery), where twelve judges thought that a (very compromising) letter delivered at defendant's house after his arrest, though he had at first acknowledged that he recognised the writing, ought not to have been admitted. Horne Tooke, above, was cited, and, perhaps,

ib. 127-8.

When, on arrest, a directed letter was found in the room in his brother's house where defendant was, and the latter said to the policeman that it had nothing to do with the present business, nothing being proved about the handwriting, Parke B. allowed it to be read against him on the ground of his statement showing his cognisance of the contents, which raises the presumption that it was written by his direction: Barratt, 9 C. & P. 391, 1840.

Inspection by defendant] See Collucci.

iii. Interpretation of documents] When the issue of false pretences depended on the meaning of a circular, it ought to have been left to the jury, as there is an exception to the general rule that the judge construes writings when the writing forms the subject of an indictment . . . and guilt or innocence . depends upon the popular meaning of the language employed': Rosenson, 12 Or. A. R. 235, 1917. See Evidence under False Pretences.