tioned document, and large photographs properly made often disclose much as to whether or not the writing in question was performed in the ordinary way. The photograph may show fairly well certain strokes of the pen that the person writing the document or writing his own name would not have made, but that were evidently made for the purpose of making the simulated writing or signature more perfect. A careful examination of the paper, too, by watermark or otherwise, may disclose that the paper was of a manufacture subsequent to the date of the document, or that the paper was of a kind that the person never used, or like facts about it. The expert to-day carefully measures the disputed signature to see if its measurements betray any peculiarities that will help solve the mystery. The ink is carefully examined, because it may appear that the ink is of a kind never used by the person in question, or of a kind not manufactured until long after the signature came into existence. So, too, although the document purports to be an ancient one and has been given that appearance by exposing it to dust, dampness, acids, or other agents, chemical tests of the ink may make it clear beyond all question that in fact the document was recently written despite the ancient appearance. Because the ink is partly absorbed in the paper, is evaporated in part, and gradually hardens, as it grows older it more and more strongly resists certain acids, and the chemist is able to determine with approximate certainty whether the document is comparatively new or the ancient document that it appears to be on its face. So, too, after the chemist has subjected the document to acids, the microscope will come into play, and its magnifying power may disclose peculiarities found or not found in genuine signatures. The microscope may show, after ink has been subjected to acid tests, that the document is in truth an old one, or it may corroborate the chemical test and show it is not an old one. The literature that will help the practitioner solve the problems is not yet abundant, but in such works as Osborn on Questioned Documents the lawyer finds help when he has questions of this character to solve.

For a long time the law refused to receive in evidence genuine documents of the person in question, that they might be compared with the questioned document to determine whether or not it was

genuine. The result was that the trial lawyer was compelled to find some pretext or other that would sustain him in offering in evidence one or more letters or documents having little, if any, bearing on the real merits of the case, for the purpose of afterwards enabling his expert to compare those documents in the genuine handwriting of the person with the document or signature of the person in question. Ultimately England changed this rule by statute. New York and most if not all of the other states of this country did the same. In substance, the statutory change permitted either party to offer in evidence genuine documents or signatures of the person in question for the very purpose of enabling experts or the court or jury to compare such genuine documents or signatures with those in dispute. These statutory changes are more than a quarter of a century old in most of our states, and the statute is hardly looked at in preparing for trial, so settled has become the practice in cases of this character. Indeed, the profession of the present day has almost forgotten, if it ever knew, that the old rule existed. A striking illustration of this fact was recently disclosed.

A Miss DeWitt of Easton, Pa., was placed on trial before Judge Macpherson in the federal court, charged with sending scurrilous letters to a clergyman. She pleaded not guilty. The United States attorney was backed up by able experts who were prepared to testify that the scurrilous letters were in the handwriting of the accused. In due time genuine letters of the accused were offered in evidence to enable the experts to compare them with the letters in question. The genuine letters were objected to on the ground that the criminal law of evidence of the United States, which existed when the Constitution was adopted in 1789, applied, and, therefore, that such evidence was not admissible. The court thus decided the case:

"You have made an excellent argument, Mr. Swartley, but I am compelled to rule the document out. In criminal cases the United States courts are working under the laws passed more than a century ago, the origin of which dates so far back that the reason for them must have long since disappeared. Personally I believe that the evidence should be admitted; under the state law it would be. I have no sympathy with the ruling, but I am bound by it until Congress sees fit to make a change."

The result was that Miss DeWitt was acquitted.1 Had that case been a civil case the result would have been different, because a test of competency would have been the test applied in civil cases at the same place; for such is the federal statute of evidence as amended June 29, 1906.2

The importance of permitting genuine handwriting to be introduced for the purpose of comparison by expert or court or jury can hardly be overestimated. For instance, the Rice will case, involving millions of dollars in property and the question of whether or not Patrick had committed forgery and murder, was practically determined on the result of the comparison of Rice's genuine signatures with his disputed signatures to the will. Patrick, his lawyer, had abundant opportunities to obtain specimens of his genuine signature and cause his signature to his will to be traced from a good specimen of the genuine signature of Rice. Rice was an old man, somewhat illiterate, and his signatures frequently differed not a little from each other; in fact his signature was seldom twice alike. To make assurance doubly sure, Rice's name was signed at the bottom of each page of his will. When the experts came to compare these signatures to the different pages of the will they found that they measured the same, looked the same and were the same to all intents and purposes. They compared them with genuine signatures in their possession and found that all four of them resembled each other more than any one of the eighty-odd genuine signatures resembled any other one. The experts could find no two genuine signatures of Rice that came anywhere near fitting each other, whereas the whole four signatures to the different pages of the will fitted each other perfectly. Not once in millions of times would such a result occur. The court therefore said:

"The name of William M. Rice appears four times upon the alleged will of 1900, and upon critical examination of these four signatures it will be found that they correspond almost exactly, a coincidence which could not possibly happen in the case of four genuine signatures of a person upwards of eighty years of age; and for this reason it does not need the testimony of experts to demonstrate that these signatures were not genuine but tracings." 3

1 2 Journal of Criminal Law, etc., 909, 910; 2 Rose, Code of Federal Procedure, § 1760.

2 2 Rose, Code of Federal Procedure, § 1735.

3 Matter of Rice, 81 N. Y. App. Div. 223-229, 81 N. Y. Supp. 68-72, aff'd in 176

Under the statutes permitting comparison many differing decisions in matters of detail have been made.1

In England, where our law of evidence came into being, and where documents were usually kept by the party or his solicitor, visible alterations were looked upon with great suspicion and were fatal to the reception of the document in evidence. So strict was this rule that an immaterial alteration by a stranger was fatal to the document as evidence. In course of time, however, the injustice worked by so strict a rule, and the lack of sound reason to sustain it, became fatal to it. The result was that the law as laid down in Pigot's case 5 was modified and finally overruled. Little by little it came to be settled that an immaterial alteration was not sufficient to shut out the document, and ultimately it was also established that a material alteration by a stranger would not affect the document as evidence."

This doctrine becomes important. For instance: Town bonds were issued to aid the building of a railroad to a town, the law of New York then permitting this to be done, and the constitutional amendment prohibiting anything of the kind not having been then adopted. The statute under which such bonds were then issued contemplated sealed instruments, and the bonds issued contained words in the attestation clause showing that the commissioners had set their hands and seals" thereto. The commissioners signed these bonds opposite scrolls marked " L. S.", but at that time there was not a statute in New York, as there is now, making the "L. S." the equivalent of a seal. The commissioners omitted to put any seals on the bonds, and they were delivered to the railroad company, pursuant to the proceeding, in this condition, without seals upon them. Afterwards, the railroad company sold these bonds to bonâ fide holders for value, in good faith, such purchasers finding seals upon the bonds when they were delivered to them, and being ignorant of the fact that seals were not on the bonds when they were delivered to the rail

N. Y. 570–571, 68 N. E. 1123 (1903); Osborn, Questioned Documents, 111, 274, 298, 299, 300.

4 Jones, Evidence, 2 ed., §§ 551-552.

5 II Coke 26 b.

6

3 Phillips, Evidence, Cowan, Hill & Edward's Notes, 389, and cases cited.

road company. In a suit in equity to cancel the bonds for various other reasons, it was also claimed that they should be canceled because of the material alteration in them which was thus brought to the very doors of the railroad company itself, by the undisputed facts. A very able court held that the form of the statute and the form of the bonds did not carry any authority to the railroad company to affix seals to the bonds; also that treating the addition of the seals as a material alteration, that material alteration, even if it was assumed that it was made by the railroad company as an interested party, would not justify a court of equity in canceling the bonds in the hands of innocent holders, when there was no proof that the seals were added for a fraudulent purpose. The court of equity, therefore, refused to cancel the bonds in the hands of bonâ fide holders for value, on the theory that it would not be equitable to cancel them under the circumstances.7

The court of equity having refused to cancel the bonds, as stated, an action was brought to recover the unpaid interest coupons attached to the bonds. The judgment in the equity action which had determined that the bonds were valid bonds, was put in evidence to sustain the claims of the holders of the coupons, and as being res judicata on the town that the bonds were valid, and, therefore, sufficient evidence upon which to warrant judgment against the town for the interest on the bonds. The town insisted, among other things, that the equity judgment was not conclusive, especially on the issue of alteration. The court discussed that issue on its merits, as well as on the basis of res judicata. As to the merits, it held, in substance, that the court of equity had the power to disregard the alteration, in the absence of any words in the statute making the bonds void if seals were not attached, and that in doing so the court of equity in effect corrected the mistake or misunderstanding in not attaching seals to the bonds, and they thus became valid bonds. At all events, the court was of the opinion that the issue was no longer open, after the question had been passed upon by a court of equity.8

The result in the equity suit reminds one of the suit in equity in Vermont that came before a lay judge of that state at an 7 Town of Solon v. Williamsburgh Savings Bank, 114 N. Y. 122, 21 N. E. 168 (1889). 8 Williamsburgh Savings Bank v. Town of Solon, 136 N. Y. 465, 32 N. E. 1058 (1893).