(Kirk v. Eaton, for the use of Coleman.)

And that the defendant had actual notice of the time of meeting, but did not think proper to attend, or to make any objection at the time. These things would have no weight, if restitution was a matter of strict right, demandable by the defendant at this time, and in this form. But if that be not the law, as I take it not to be, then it will be doing justice to both parties, if the money be brought into court, there to remain, till it be decided to whom it belongs. And this decision may soon be had, by the plaintiff's suing out another scire facias in the court of Common Pleas. I am of opinion therefore, that the judgment should be reversed, and the money which the defendant received of the sheriff, brought into court to await their future order. As to the money which has been paid to other persons, who are not now before the court, nothing at present can be said concerning it.

Judgment reversed, and the money which the plaintiff received to be brought into court to await future order,

[LANCASTER, June 14, 1823.] PANCAKE against HARRIS.

IN ERROR.

An action of debt on the act of assembly is improper in a foreign attachment, and is erroneous.

The garnishee is not liable in scire facias on a foreign attachment, where the narr is in assumpsit, till the plaintiff has executed a writ of inquiry: and this defect it seems, may be taken advantage of on the plea of nulla dona.

Pancake issued a foreign attachment in the Court of Common Pleas of Dauphin county, against Hiland H. Parker, in debt by assumption, which was levied on money in the hands of Harris, the garnishee. A declaration was afterwards filed, which in the commencement stated, that Parker was attached to answer Pancake in a plea, that he render unto him the sum of 90 dollars, which he owes to and unjustly detains from him, and then went on to state that the defendant was indebted in that sum for a horse and merchandize, sold and delivered at the special instance and request of said Parker, in consideration whereof he undertook to pay, with the common conclusion in assumpsit. Judgment was afterwards entered, and a scire facias issued againt the garnishee Harris, who pleaded nulla bona and issue being joined, the cause went to trial.

On the trial the court below charged the jury, that the plaintiff was not entitled to a verdict against the garnishee, till the amount due by Parker was ascertained by writ of inquiry, and that the narr against Parker was in assumpsit.

To this opinion the plaintiff excepted. The jury found a verdict for the defendant, Harris, and judgment was entered thereon,

(Pancake v. Harris.)

Douglass, for the plaintiff in error.

Shoch and Elder, contra.

Per Curiam. In the attachment against Parker the action is debt on the act of assembly; which is erroneous: the act is inapplicable to attachments. At present however, the declaration is the principal subject of consideration. This in its commencement pursues the form of a declaration in debt, but the body and conclusion are strictly in the form of a declaration in assumpsit for goods sold and delivered. The judgment in the attachment therefore not being for a liquidated sum, the plaintiff could recover nothing from the garnishee without having executed a writ of inquiry of damages; and the court was right in so directing the jury. The bill of exceptions to evidence not being sustained the judgment is affirmed. Judgment affirmed.

[LANCASTER, JULY, 1823.]

Farmer's Bank of Lancaster against WHITEHILL.

IN ERROR.

Comparison of hands is evidence in civil cases, where it goes in corroboration of other evidence tending strongly to support the fact disputed.

THIS cause was removed by writ of error from the Court of Common Pleas of Lancaster county, in which it was an action brought by the Farmer's Bank of Lancaster, as indorsees, against James Whitehill, indorser of a promissory note drawn by J. Nichols. To prove the handwriting of Whitehill, the plaintiff called as a witness, Joseph J. Mathiot, who stated, that he could not tell whether the signature was Whitehill's or not. He had seen him write once, and had some of his writing, namely, a signature to a receipt, which he had seen him write. Comparing the two together, he believed the signature to the note to be his handwriting. The plaintiff then called James McClure, who testified, that he knew the defendant, and had seen him write two or three times. He could not swear that the signature on the note was the defendant's handwriting, but it was very like it. He believed it to be the defendant's handwriting. The plaintiff then produced in evidence au original administration account settled by the defendant and his mother, respecting the estate of his father, and proved by the register of wills, that it was signed by the defendant and his mother, and sworn to by them. It was also admitted by the defendant, on the trial, to be his handwriting. The plaintiff offered the account to the jury, that they might compare the signature of the defendant thereto with the handwriting on the note. This evidence the defendant objected to and

(Farmer's Bank of Lancaster v. Whitehill.)

the court rejected it, and sealed a bill of exceptions. The jury found a verdict for the defendant.

Hopkins, for the plaintiffs in error, now contended that the court below erred in rejecting the evidence offered by the plaintiff, because comparison of handwriting is evidence in civil cases, Gilb. Ev. 54. B. N. P. 236. 1 Dall. 14; especially where it is offered in corroboration of other evidence. M'Corkle v. Binns, 5 Binn. 349. 1 Esp. N. P. C. 453.

Buchanan, contra, urged that such evidence was in no case admissible, and cited 2 Bac. Ab. 664. Peake's Cas. 20. 1 Phill. Ev. 371. Peake's Ev. 273, a. Whart. Dig. 245. 7 Johns. 155.

The opinion of the court was delivered by

DUNCAN, J. I do not perceive the force of the objection to the order of time in which the rejected evidence was offered. The plaintiff had given some evidence, sufficient to entitle him to read the note to the jury, and to put it into their hands, but he might continue to strengthen his case by other evidence. He might consider it the safest course to prove as fully as he could, the execution of the note, before he delivered it to the jury. If the administration account rendered by the defendant, with his acknowledged signature, was competent for the purpose for which it was offered, to compare the signature of the note with the conceded signature of the account, he might first give in evidence the account and then deliver over both papers to the jury, to compare and judge of. So that the only question is, was comparison of hands legal evidence either of itself, or to corroborate other evidence given in

the cause.

I do not, however, deem it proper, to go further than the case requires, and am of opinion that after the evidence given by the plaintiff, it was proper to receive in evidence the handwriting of the defendant to this account rendered by him on oath, and admitted to be his, his name subscribed by himself, to enable the jury to compare the handwriting of the defendant. It is unnecessary, to advert to the English authorities, as we have a common law of our own. Yet I have taken some pains to examine them, and there are very great names, judges distinguished, authors of the highest character, to support the position, that similitude of handwriting, with other Eoncurrent testimony, is in civil cases, evidence that both are of the same handwriting. Lord HOLT, GILBERT, HAWKINS, BLACKSTONE, Lord CAMDEN, BULLER, and Lord KENYON, and all the judges of the King's Bench in Goodtitle ex dem. Revelt v. Braham, and Lord KENYON again in Ashbrook v. Roach, Esp. 451, where the defence to a bill of exchange was forgery, and be allowed the jury to decide on comparison of hands, by comparing the bill in question with other acceptances of the defendant, though he appears afterwards to have been of another opinion. The recent doctrine in Westminster Hall excludes comparison of hands, even in civil ca

(Farmer's Bank of Lancaster v. Whitehill.)

ses, and the reason assigned for the rejection is, that unless a jury could read, they would be unable to institute a comparison, or judge of a supposed resemblance. The foundation fails, for there are few, if any instances, of a jury so illiterate, as to be incapable of reading, and the presumption of law is always, that a jury can read, and can distinguish, for all writings given in evidence are to be taken out with them; and if it were not so, the rule ought not to be a general one, but proceed on a previous inquiry, "can the jury read," and this must be decided, by putting a writing into the hands of the jurors, and a proclamation by the clerk, as in a prayer of benefit of clergy, leget ut clericus. The reason is a bad one, and is so considered by a very able writer on the law of evidence, Phillips, 428, who adds another reason, without approving of it, "that the writings which may be produced as specimens, may be selected by an interested party to serve a present purpose, are open to suspicion, and liable to impeachment of contrivance." But if this were a reason for rejecting evidence, there is constantly evidence open to the same objection. Other specimens might be exhibited by the opposite party. It is in my view, more satisfactory to submit a genuine paper, as a standard, and let the jury compare that with the paper in question, and judge of the similitude, than the evidence continually received of allowing a witness who has seen the party write once, to compare the disputed paper with the feeble impression and transient view the writing may have made in his memory. This is by no means so well calculated to ascertain the truth, the object of all evidence, as to suffer the jury to compare the paper with writings proved to be authentic, present in court, and open for inspection. To show this, there is a remarkable case, Osborne v. Hosier, in 6 Mod. 147. One of the subscribing witnesses on the issue of non est factum, gave full evidence of sealing and delivery. The other swore, it was very like his hand, but not his. The reputation of both was good, and HOLT, C. J. ordered them to write their names, and thereupon left it to the jury, who found for the plaintiff.

But whatever may be the law of England, it is the received and common law of Pennsylvania, to receive such evidence in civil cases, after other evidence has been given in support of the writing, and this was judicially and solemnly determined. M'Corkle v. Binns, 5 Binney, 349. Such is the law of Massachusetts. Mass. 312; and in Connecticut, 1 Root, 467.

11

Other evidence had been given, Mr. Mathiot, who had seen the witness write, and judging from a signature which he had seen him make, swears, that he believes the signature to the note to be his. And so the other witness, M'Clure, who swears he had seen him write two or three times, that he writes such a hand, he believes it to be like his handwriting; it was likely to be his; he believes it might be his handwriting, though he cannot swear that it is his.

Witnesses who are examined to prove handwriting generally,

(Farmer's Bank of Lancaster v. Whitehill.)

speak in this hesitating way, but I do not see how any cautious witness, who had only seen a party write once, could speak with more confidence than Mathiot did. The other witness speaks with more hesitancy, but evidences his belief, "he writes such a hand, he believes it to be like his handwriting, it was likely to be his, he believes it might be his handwriting." On such evidence the fact would go to the jury, and if there was no other evidence, none to create a doubt of the accuracy of the belief of the witnesses, no proof by the defendant, by those acquainted more intimately with his handwriting, I would pause if the jury found for the plaintiff, before I would say, that the verdict was so much against the weight of evidence that the court ought to grant a new trial. There may be particularity in the handwriting, so distinct and convincing as to leave the mind in no doubt on examining that which was admitted to be the genuine handwriting, with the disputed instrument, as to its being authentic or spurious, or the resemblance so weak, as not to satis fy the mind. The jury inspect, examine, they would not be bound to give a verdict according to the opinion of any witness, against their own senses. And if the witnesses are equal in numbers, in charac ter, in intelligence, and means of information, there the jury must decide by their own comparison, trust their own eyes, and draw their own conclusions by comparing the standards, the handwriting acknowledged, with the contested paper, and so it was decided in the case in 6 Mod., and so it only could be decided. This is the strongest case possible to let in this proof. The standard with which the comparison is to be made, is often itself a matter of some doubt. The authenticity of its signature is first to be decided, before the comparison is made. But here the standard in incontestible, and is admitted.

Judgment reversed and venire facias de novo awarded.