that character, as to enable him, without immediate comparison, to say whether any other document was or was not in the handwriting of the same person. This evidence being objected to, was rejected by the committee; but when the family solicitor, being called, stated that he had acquired a knowledge of the ancestor's handwriting from having had occasion, at different times, to examine, in the course of business, many deeds and instruments purporting to have been written or signed by him, and which came to the claimant, together with property formerly belonging to that ancestor, the Lords held this witness competent to prove the handwriting of the pedigree.

There is a difference of opinion, also, whether writings, which are not admissible as evidence in the cause, though purporting to be written by the party whose handwriting is disputed, may be put into the witness's hand, to be used for testing his knowledge of the party's writing. In the case of Griffits v. Ivery, 11 Ad. & Ell. 322, upon an issue whether an acceptance on a bill of exchange was signed by the defendant, witnesses acquainted with the defendant's writing being called to prove the negative, the plaintiff's counsel proposed, in crossexamination, to lay before each of the defendant's witnesses a paper purporting to bear the signature of the defendant, and to inquire of each in turn his opinion whether this was the defendant's signature; this they proposed to do, for the purpose of testing their knowledge of the defendant's handwriting, Lord Denman rejected this evidence, and the Court of Queen's Bench decided that as the proposed paper was no part of the proofs in the cause, the inquiry was not allowable. And in Hughes v. Rogers, 8 M. & W. 125, Baron Parke, who had previously adopted a different course at Nisi Prius, afterwards acted in conformity with this decision. But in the subsequent case of Young v. Honner, 2 M. & R. 536, where, in an action against the defendant as acceptor of a bill of exchange, a witness, called on behalf of the defendant, stated that he believed the signature to the bill not to be the handwriting of the defendant-giving, as his reason, that the defendant always signed his name with certain initials, the signature to the bill being at full length-upon cross-examination a paper, which was not in any way relevant to the issue, was put in his hand, which he stated he believed bore the genuine signature of the defendant; it was then proposed to ask him whether the signature was not in the same form as that upon the bill, namely, at full length; and upon this being objected to, Baron Alderson, after consulting the full court, stated that they were unanimously of opinion that the cross-examination, as far as it had been pursued, was regular, and that the question objected to might be properly put; his lordship added, that they could not subscribe to the decision of the Court of Queen's Bench in Griffits v. Ivery.

The ground on which the exclusion of other writings as a medium of comparison is said to rest is, that this species of evidence might cause inconvenience by raising collateral issues, and come by surprise upon the party to be affected by it. Another reason assigned is, that the party interested would select such writings only as would best serve his purpose, and that they would not be likely, therefore to exhibit a fair specimen of the hand-writing, and might be liable to the imputation of contrivance.

These reasons do not appear to us to outweigh the advantage of admitting the evidence. It cannot be supposed that collateral issues would often arise. The entire value of such evidence would depend on

the writings with which the comparison is to be made being admitted by the opposite party to be genuine documents, therefore, the authenticity of which is indisputable, would alone be likely to be brought forward for such a purpose.

Then, as to the suggestion of selection: if the writings are genuine, there would seem to be but little opportunity for selection; certainly not so much as is at present afforded to an interested party in bringing forward only those witnesses whose opinion of the handwriting happens to suit the purpose required.

It seems to us indefensible in principle to allow a witness to institute a comparison with the recollection of writings which he may have seen long ago, and of which but a faint trace may remain on his mind, and yet to prohibit a fresh comparison with genuine writings, more especially, when, for the purpose of trying the accuracy of the witness, it is proposed to apply the test of requiring his judgment on writing which is not disputed. Still less defensible in our view is it to leave the jury to act on the judgment of a witness who, after all, can only form that judgment on a comparison of the disputed writing with others, and yet to deny the jury the opportunity of forming their own judgment on the same materials.

It appears to us, that comparison of a disputed writing with writings acknowledged to be genuine (and when used by the party in whose handwriting they are, if written ante litem motam,) should be permitted to be made by witnesses, and that such writings should be submitted to the jury as evidence as to the genuineness of the writings in dispute.

Objections on the Stamp Laws.

While treating of documentary evidence, we think it necessary to observe upon the extent to which the exclusion of documents is occacasioned by the operation of the stamp laws. From confidence in one another, or from a belief that a document will never be required in a court of justice, or from ignorance that the document is one which requires a stamp, parties often omit to cause instruments within the provisions of the stamp laws to be stamped. Sometimes from inadvertence, or ignorance of the precise legal character of the instrument, the stamp affixed is of too low an amount or of a wrong denomination. On such an instrument being offered in evidence, the opposite party objects to its admissibility, though himself equally to blame for the omission, and thus profits by an irregularity to which he himself is a party. The result is often a defeat of justice. It is true that by the stamp acts the omission of the stamp may (with the exception of certain specified instruments) be cured by the payment of a penalty, whereupon the stamp is allowed to be affixed. Where it is known beforehand that the instrument will be required in evidence, and that it is necessary it should be stamped, the mischief may thus be avoided. But it sometimes happens that a document is produced at the trial by a third party, and that it is then for the first time discovered that a stamp is wanting; frequently, it is only on the objection being taken that the necessity for a stamp, or for a stamp of a higher denomination, is made manifest. But it is then too late, more especially if the trial takes place in the eountry (as the penalty for stamping an instrument can only be paid and the stamp affixed at the Stamp-office in London), to take necessary steps to make the instrument admissible.

D

These stamp objections are often the occasion of very grievous injustice. As far as the administration of justice is concerned, it would be highly desirable that a stamp should not be the condition of the admissibility of an instrument; but so long as the stamp duties form a portion of the public revenue it would no doubt be in vain to propose that the absence of the stamp should not be a ground of objection. All that can be done is to endeavour to reconcile the claims of justice with the interests of the revenue. With this view we recommend that the officer of the court at Nisi Prius should be empowered to affix the necessary stamp on payment of the penalty and duty, as the same may now be done at the Stamp-office in London. We are aware that it may be objected that if this were allowed, the objection to the want of a stamp never would be taken, inasmuch as, if the stamp could at once be affixed and the instrument so rendered admissible, the party against whom it is produced would have no interest to object. To meet this, we propose that it shall be the duty of the officer of the court, on the production of an instrument or agreement, to call the attention of the judge to any omission or insufficiency of the stamp, and that if, thereupon, the judge shall be of opinon that the instrument, if unstamped, requires a stamp, or, if stamped, a higher stamp, the instrument shall not be received until the penalty has been paid, and the necessary stamp affixed.

There is a certain class of documents, such as bills of exchange and receipts, upon which, if not stamped at the time of their execution, the stamp acts do not allow the stamp to be afterwards affixed on payment of a penalty. This proceeds on the belief that these instruments, if they could be stamped when the necessity arose, would not in the great majority of instances be stamped at all. We do not propose to interfere with these. Our only purpose is to enable instruments which may be stamped on payment of the penalty, where the necessity has been foreseen, to be stamped in like manner at the trial, when an unforeseen necessity arises. As an inducement to parties not to attempt to evade the law, it might, if deemed necessary, be provided that the penalty, if paid at the trial, should be somewhat higher than if paid at the Stampoffice.

SPECIAL VERDICT AND SPECIAL CASE.

As we have already stated, the jury are bound, on a question compounded of law and fact, to take the law from the judge. It sometimes happens, however, that the jury, notwithstanding the assistance of the judge, are unable, though agreed on the facts, to come to a satisfactory conclusion as to the combined question of law and fact. In such case it is competent to the jury to find the facts specially, or, as it is called, a special verdict, leaving the application of the law to the court out of which the record issued.

Sometimes, when the facts are not really in dispute, this course is adopted by arrangement, or by consent of parties at the suggestion of the judge. Upon the judgment of the court pronounced on the special verdict, error may be brought.

Another course, frequently resorted to, where the facts are agreed on, is to allow a general verdict to be found for the plaintiff, subject to a special case, that is, a case specially stating the facts, upon which the court will afterwards determine the law as applicable thereto. This mode of proceeding has been found so convenient, that a statutory pro

vision of the 3 & 4 Will. 4, c. 42, s. 25, enabled parties, if agreed upon the facts, to frame a special case immediately after issue joined, and to bring it at once before the court for its decision, thereby avoiding the expense and delay of a trial altogether, and by a provision of the Common Law Procedure Act of last session, parties may now, by consent, immediately after writ issued, by order of a judge, state any question or questions of law in a special case for the opinion of the court, without any pleadings whatsoever,

There can be no doubt of the great convenience of this mode of proceeding, but there is at present a drawback attached to it which materially interferes with its general adoption. The judgment on a special case, unlike the judgment on a special verdict, cannot be taken to a court of error; and as it is for the most part on questions of legal difficulty that it becomes necessary to resort to this proceeding, parties are unwilling to debar themselves of the opportunity of appealing against an adverse decision.

We see no sufficient reason why the proceeding by special case should not, in this respect, be placed on the same footing as the proceeding by special verdict, except where the parties agree to be bound by the decision of the court of first instance. We are aware it has been objected that, as it is sometimes provided in a special case that the court may draw such conclusions from the facts stated in the case, as a jury ought to do if the case were tried, the court of error might thus be called upon to deal with conclusions of fact. We see no inconvenience in such a result; but if there be any, it may easily be obviated by making the decision of the court below the final upon everything except mere matter of law. We recommend that it shall be provided that error shall lie in a proceeding on a special case as in that on a special verdict, unless the special case contain an agreement to the contrary.

VERDICT DIRECTED BY JUDGE.

The facts of the case being ascertained, the judge in the exercise of his authority to direct the jury in point of law, frequently directs a nonsuit or a verdict to be entered according to his view of the law, as applicable to the case. In such case, if the party in whose favour he rules consents (and such consent is in practice usually conceded, as, should the judge prove to be wrong, a new trial is hereby avoided), he may reserve leave to the party against whom he rules to move the court to set a side the nonsuit or verdict, and to enter a verdict or nonsuit in his favour, as the case may be.

BILLS OF EXCEPTIONS, AND NEW TRIAL.

In the event of the improper rejection or admission of evidence by the judge, or of erroneous direction in point of law, the party prejudiced thereby may either tender a bill of exceptions, which must be done before verdict, or waiving that right, may apply to the court out of which the record issued for a new trial. There is also a third course, that of demurring to evidence at the trial; but this proceeding is unusual and obsolete in practice. The material difference between proceeding by bill of exceptions and applying to the court for a new trial is that, upon a bill of exceptions, the appeal from the judge goes at once to the Court of Error, without any intermediate decision of the court out of which the record comes; whereas on an application for a new trial

the decision of the latter court is conclusive, as no appeal to the court of error can be brought thereupon. This difference appears to us to involve an anomaly moreover we think there are imperfections in both modes of proceeding, which require amendment.

Bill of Exceptions.

As regards the bill of exceptions. This mode of proceeding is open in the first place to this objection, that the Court of Error are compelled in case of the erroneous admission or reception of evidence to award a venire de novo, in effect a new trial, although the error may have been unimportant, and the verdict would have been the same if the ruling had been otherwise, and though the court below would in the exercise of its discretion have refused to grant a new trial. And though it is true that the courts have acted on an analogous principle in granting or refusing new trials, on the ground that otherwise they would only drive parties to the more expensive and dilatory process of a bill of exceptions; yet there has lately been a tendency to modify the strict rule by refusing a new trial for the improper admission of evidence of a fact which was otherwise established, or the improper rejection of evidence in a case where, if it had been admitted, a verdict for the complaining party would be set aside against the weight of evidence.

Another objection to this proceeding is that it is altogether inapplicable to the case of a verdict directed by the judge with leave reserved to move to enter an opposite verdict or a nonsuit, which latter course is, as we have already observed, a very convenient one, as, if the ruling of the judge be wrong, it saves the necessity of a second trial. If the party to whom leave is so reserved in the course of the cause desire to have the decision of a Court of Error, he must waive the leave. If he moves in the court below upon the leave, the decision of the court is final.

Lastly, the bill of exceptions must, in strictness, be tendered at the trial before the verdict is given; and though in practice a short abstract only of the grounds of exception is delivered at the trial, yet sufficient opportunity for consideration in cases of nicety and difficulty is hardly afforded by this course.

Motion for New Trial.

We will now point out the objections which suggest themselves to the proceeding by motion for a new trial, or to enter a verdict on leave reserved.

When this course is adopted, if the judge before whom the trial took place is a judge of the court out of which the record issued, this peculiarity arises, namely, that the judge whose decision is appealed against forms, at the least, one fourth part of the Court of Appeal, and in the event of another of the members of the court agreeing with him, whereby the court is equally divided, the verdict will stand, and judgment must be pronounced thereon. At the same time, it must be admitted to be expedient in practice that the judge who presided at the trial at Nisi Prius should be present at the discussion of the rule for a new trial; a check is hereby imposed on any misapprehension as to the proceedings at the trial.

In the next case, as we have already pointed out, the decision of the