that defen dant was party to the as agent, would not have been a sufficient proof of his being invested 2dly. Proof with that authority; and when it has been proved that A. is agent of B., whatever A. does or says, or writes, in the making of a contract, as agent of B., is admissible in evidence, because it is part of the contract bill, &c. which he makes for B., and which therefore binds him, but it is not admissible as the agent's account of what passes.' In an action against several acceptors of a bill, or makers of a note, the hand-writing of each must be proved; (one of whom is competent to prove the hand-writing of the others;") or it must be shown that a partnership existed at the date of the instrument, and that the partnership name was written by one of the partners or their agent. If the partnership be established, then it will suffice to prove an admission by one of the defendants of the hand-writing of one of the partners to the acceptance in the name of the firm; and it will not be necessary [ 382 ] to prove that the defendants were of the christian names stated in the declaration. And this doctrine has been carried so far, that in an action against three persons as drawers of a bill of exchange, purporting to have been drawn by an agent of the firm upon one of the partners, it was held, that the acceptance by the drawee was evidence against the three partners of the bill having been regularly drawn and rendered it unnecessary * Johnson v. Ward, 6 Esp. Rep. 48. Phil. Evid. 3d edit. 79. f Per Gibbs, J. in Langhorn v. Allnutt, 4 Taunt. 519. Phil. Evid. 3d edit. 78. 8 Gray v. Palmer and another, 1 Esp. Rep. 135. Per Lawrence, J. in Sheriff v. Wilks, 1 East, 52. Gray and others v. Palmer and Hodgson, 1 Esp. Rep. 135. Assumpsit by the plaintiffs as indorsees of a promissory note against the defendants as the drawers. The note was a joint and several one, signed by James and John Palmer, and Edward Hodgson. The declaration was against them jointly in the common form, viz. that the said James and John Palmer, and Edward Hodgson, made their certain note in writing, commonly called a promissory note, their proper hands-writing being thereto subscribed, &c. Hodgson, one of the defendants, had pleaded a sham plea of judgment recovered, to which there was the usual replication of nul tiel record, and demurrer, in which state the pleadings then stood as to him; the two other defendants James and John Palmer severally pleaded non-assumpsit, and these were the issues in the cause on the record. The counsel for the plaintiff proved the hands-writing of James and John Palmer, and there rested their case. The counsel for the defendants insisted that this alone was not sufficient; for that it was also necessary to prove the hand-writing of Hodgson the other defendant, inasmuch as the plaintiffs had declared on a joint contract against the three defendants. It was answered, that Hodgson had by his plea admitted the note to be his; and it was therefore only necessary to prove in against those parties who had by their pleas denied it to be theirs, and that being 16. h York v. Blott, 5 M. & S. 71. Thwaites v. Richardson, Peake Rep. k Id. ibid. Phil. Evid. 3d ed. 75.Hodenpyl v. Vingerhoed and another. Hodenpylv. Vingerhoed and another, tian names: and that in a conversation with Id. ibid. dant was bill, &c. 2dly. Proof to prove the authority of the agent. So the admission by one partner of that defen- his partnership with the co-defendants, who were sued with him, as party to the acceptors of a bill of exchange, and who had been outlawed, has been received as proof against him of a joint promise by all." The rule has even been extended in actions so far as to admit the declarations of one partner to be evidence against another, concerning joint contracts and their joint interest, although the person who has made such declarations is not a party to the suit; as where in an action by a creditor against some of the partnership firm, the answer of another partner to a bill filed by other creditors was received in evidence against the defendants, not indeed to prove the partnership, but that being established, as an admission against those who are as one person with him in interest. And the admission of a partner, though not a party to the suit, is evidence as to joint contracts against any other partner, as well after the determination of the partnership as during its continuance." So we have seen that the admission of one of several drawers of a [383] promissory note is sufficient to take the case out of the Statute of Limitations, in a separate action against the others. But in a joint action against three persons as acceptors of a bill of exchange, as a joint lia bility must be proved, the circumstance of two of the defendants having been outlawed will not dispense with proof of their joint liability, although the defendant who alone pleaded to the action was in justice liable to pay the debt. So in an action against two persons, as makers of a note, if one of them suffer judgment by default, his signature must nevertheless be proved on the trial against the other. A declaration of an agent can only be evidence against the principal where it accompanies the transaction about which he is employed, and if made at another time it is not admissible.t In an action against the acceptor of a bill, payable after sight, it is in general necessary to prove the date or time of the acceptance; but if his signature as acceptor is proved, the date of the acceptance appearing over it, although in a different hand-writing, will be presumed to have been written by his authority." In an action against the drawer or indorser of a bill or note, the handwriting of the defendant, or a signature by his agent, having power to bind him, must be established in evidence, in like manner as in an action Po:thouse Parker and others, 1 Porthouse v. Parker and others, 1 dant was against the acceptor of a bill; and if an indorsement on a promissory 2dly. Proof note purports to have been attested by a subscribing witness, such that defenwitness must be called ; but if the defendant pay money into court generally, or upon the count on the instrument, the signature and its bill, &c. validity is admitted, and need not be proved, and the only question to be tried will then be the quantum.z b party to the The mode of proving that the defendant was a party to the bill or Mode of note has already been partially considered; one of several acceptors is proof. competent to prove the hand-writing of the others. In an action against the acceptor, his acceptance, if by parol, must be proved by the witness who heard him accept; and if the answer, which it is insisted, amounted to an acceptance, was given by a clerk, or third person, that person must be subpoenaed; and it has been held, that proof of an answer given [ 384 ] at the house of the drawee, that the bill would be taken up when due, is not sufficient proof of an acceptance, but it must be shown that the answer was given by the drawee, or by his authority. If the acceptance was in writing, it must be produced, and the signature proved. In an action against the drawer or indorser of a bill or note, his signature must also be proved. The signature may be established by a witness, who can swear to the hand-writing, or to an admission of it by the party sued. The simplest and most obvious proof of hand-writing is the testimony of a witness who saw the defendant subscribe the bill or note; but (unless there was a subscribing witness, who, we have seen, musť be subpoenaed,) this evidence is not essential, and it will suffice to call a witness who is acquainted with the defendant, and who, from seeing him write, or from correspondence with him, has acquired a knowledge of his hand-writing, and can swear to his belief, that the subscription is the defendant's; and in an action on a foreign bill to prove the hand-writing of the defendant, it is evidence to go to a jury that a person who saw him write once, thinks the hand-writing alike, though he has no belief on the subject. This suffices, because in Sayer v. Kitchen, 1 Esp. Rep. 209. Assumpsit against acceptor of a bill, drawn upon him by one Holland, and also a further sum for goods sold and delivered. The plaintiff was unable to prove the hand-writing of the defendant subscribed to the bill by any witness who was acquainted with it, but offered the following as an admission by him, tantamount to proof of his acceptance. This evidence was, that of a clerk of the banking-house into which the bill in question had been paid, and who had brought the bill to the defendant's house for acceptance. The defendant was not then at home; but the clerk received for answer at the house, that the bill would be taken up when due. Mingay, for the plaintiff, contended, that this answer so received at the house of the defenCHITTY ON BILLS. dant to a bill, upon which his name appeared d Ante, 379. 383. Garellis v. Alexander, 4 Esp. Rep. 37. Assumpsit on a foreign bill of exchange. To prove the hand-writing of the defendant, the plaintiff called the clerk of the defendant's attorney. His evidence was, that he had seen the defendant sign the bail bond in the cause, but had never seen him write on any other occasion. Being asked whether he believed the acceptance to be the hand-writing of the defendant, he said he could form no belief on the subject; it was like the hand-writing in which the bail bond was subscribed, and he was about to compare them together. Lord Kenyon told him, he must form a Y y dant was bill, &c. 2dly. Proof every person's manner of writing there is a certain distinct prevailing that defen- character, which may be easily discovered by observation, and when party to the once known, may be afterwards applied as a standard to try any other species of writing whose genuineness is disputed. A witness may therefore be called and asked whether he has seen the defendant write, and afterwards whether he believes the signature to the bill or note to be the defendant's hand-writing; but it is reported to have been decided at Nisi Prius, that a person who has only seen a party write his surname, is not competent to prove his hand-writing to the christian as well as surname to an acceptance. The usual course is to subpoena a witness who can swear he knows the defendant, and that he has seen him write frequently, or has frequently addressed letters to him, and receives answers in return; and that from the knowledge he has thus acquired of his hand-writing, he believes the particular signature to be the defendant's hand-writing. A knowledge of the hand-writing acquired by a witness in the course of correspondence with the defendant, is sufficient to enable him to swear to his belief of the hand-writing ; but barely having seen letters, purporting to have been franked, by him, or other papers, which he has no authentic information are of the defendant's hand-writing, is not sufficient. In forming this belief it has been observed, that a witness therefore, when called to speak of the identity of the defendant's hand-writing, ought to judge solely from the impression which the hand-writing itself makes upon his mind, without taking any extrinsic circumstance into his consideration and therefore where a witness said, that looking at the hand-writing he should have thought it to have been that of the [586 party whose name it bore, but from his knowledge of him, he thought he could not have signed such a paper, it was held that this was prima facie evidence of the hand-writing and on the same principle where it was contended that the paper produced was the forgery of a third person, evidence that such third person had forged the defendant's name to other instruments of a similar nature, was held to be inadmissible, and even in one case which came before the court, the party who m judgment without such comparison of hands. Lord Kenyon. write; I therefore think that it is evidence to go to the jury. But it has been holden, that a witness who has only seen the drawee write his name, pending the action for the purpose of showing the witness his usual mode of writing his acceptance, is not an admissible witness for such drawer to disprove his hand-writing to the bill, on which he is sued, because the defendant might write differently before the witness purposely to establish a defence. Stranger r. Searle, 1 Esp. Rep. 14, 15. Peake's Evid. 4th edit. 109, 110.-Phil. Evid. 3d edit. 422. Powell v. Ford, 2 Stark. 264. h See Phil. Evid. 3d edit. 422, 23, 24. 427, 28. Peake's Evid. 4th edit. 110. Cary v. Pitt, Peake's Evid 4th edit 110. Peake's Evid. 4th edit. 110. Da Costa v. Pym, Sittings at Guildhall, after Trin. Term, 37 Geo. 3. Peake's Evid 4th edit. Appendix, 85. Balcetti v. Serani, Peake's Ni. Pri dant was party to the contended that the hand-writing was a forgery, was only permitted, 2dly. Proof after a great deal of other evidence, to examine a clerk at the post- that defenoffice, whose businees it is to inspect franks and detect forgeries, to prove that from the appearance of the hand-writing it was, in his opin- bill, &c. ion, a forgery, and not genuine hand-writing; and in a subsequent case, Lord Kenyon said, that such evidence was wholly inadmissible, and observed, that though in Revet v. Braham it was admitted, yet that in his direction to the jury he had laid no stress at all upon it. It has been observed, that the analogies of law appear strongly to support the admissibility of this evidence, for opinion founded on observation and experience is received in most questions of a similar nature. There is a certain freedom of character in that which is original, which imitation seldom attains, and the want of that freedom is more likely to be detected by one whose attention has been directed to the subject than by another who has never given his mind to such pursuits. It does not therefore seem too much to say that such evidence is in all cases inadmissible, though it certainly ought to be received with great caution, and meet with little attention, unless as corroborating other and stronger evidence. 0 The true distinction as to the inadmissibility of such evidence seems to have been taken by Mr. Baron Hotham on the trial of The King v. Cator, where the defendant being indicted for publishing a written libel, and a person from the post-office who had never seen bim write being called as a witness, that Judge permitted the witness to give general evidence that the writing appeared to be in a feigned hand; but when the witness was asked whether, on comparing such hand-writing with papers proved by others to be the genuine hand-writing of the defendant, he could say it was the disguised hand of the same person, his Lordship rejected the evidence attempted to be introduced by such examination, because it arose only from comparision of hands. The 387] case of Revet v. Braham, may therefore still be considered as an existing authority to show, that for the purpose of proving generally and in the abstract that a hand-writing is not genuine, such evidence is admissible, though deserving of little attention for the want of freedom in the hand-writing. And the painting of the letters, as it was called by the witness in that case, may arise from the infirmity of the writer, or his not having formed a fixed character, or many other causes which a person unacquainted with the genuine hand-writing cannot take into his consideration. A tradesman who is daily making entries to his books, will acquire a more free and steady character than an illiterate person who can but just write his name; and a man whose habits of life lead him to write much oftener and with less care, will still get more of a peculiar character in his hand-writing, all which circumstances should. certainly be taken into the consideration of a jury before they give weight to such evidence. It has been well observed, that inasmuch as the mind arrives at the belief of hand-writing merely by recollection of the general character from an acquaintance by frequently seeing it, and not from the formation of particular letters or a single inspection, courts of justice have wisely rejected all evidence from bare comparison of hands unsupport 142. Graft . Lord Brownlow Bertie, Sittings at Westminster, after Trin. Term, 1777. MS. Peake's Evid. 4th edit. 110. " Cary v. Pitt, Peake's Evid. 4th edit, 110. 4 Esp. Rep. 117, |