A prisoner is not entitled to a copy of his examination. A prisoner must be held to bail or trial to be entitled to a copy of the depositions. A prisoner is not entitled under the Act to a copy of his own examination, taken before the committing magistrate, which has been returned with the depositions, but only to a copy of the depositions of the witnesses against him. (q) This decision, observes Mr. Phillipps, (r) is founded on the express language of the Act, which speaks of depositions of witnesses, and says nothing of the examinations of prisoners. Yet it may in some cases be as necessary for the full defence of the prisoner that he should be furnished with a copy of his own statement taken in writing before the magistrate, as it is to have a copy of the depositions, especially where a part of the case for the prosecution consists of evidence intended to disprove or contradict the prisoner's statement. In such a case, if it were necessary for the ends of justice, the judge, by virtue of his judicial authority, might allow the prisoner to inspect his written examination. (s) It was held that a prisoner was not entitled, under the 6 & 7 Will. 4, c. 114, s. 3, to copies of the depositions until he was committed for finally committed or held to bail for the purpose of trial, and therefore he was not so entitled on being committed for further examination, (t) and it has also been held that a prisoner is not entitled, under the 11 & 12 Vict. c. 43, s. 27, to such copies, unless he has either been committed to prison to take his trial at a particular time, or has been admitted to bail to make his appearance at a certain time, for the purpose of being tried; and therefore a person committed till the next sessions for want of sureties to keep the peace, and then do what should be enjoined him by the court, is not entitled to copies of the depositions taken against him. (u) Additional evidence. Depositions against another. Before a coroner. Where additional evidence has been obtained after the committal, but no depositions containing such evidence taken, the court has no authority to order a copy of such evidence. (v) Where the prisoner was committed for receiving iron, knowing it to have been stolen, and a person, who had been committed as having stolen the iron, was admitted as a witness for the Crown, Patteson, J., allowed the prisoner's counsel to inspect the depositions which had been returned against the person charged as the thief. (w) Where a true bill was found against a prisoner for the murder v. Gardner; but Byles, J., said, 'I am of of England from exercising it.' C. G. S. (q) Reg. v. Aylett, 8 C. & P. 669, Littledale, J., and Parke, B. (r) 2 Phill. Ev. 181. (s) See per Coleridge, J., in Ex parte Greenacre, note (x), infra. (t) Reg. v. Mayor of London, 5 Q. B. 555. (u) Ex parte Humphrys, 4 Sess. C. 179, Coleridge, J., who seemed also clearly of opinion that a prisoner would have no right to a copy of the depositions after he had been tried. (v) Reg. v. Connor, 1 Cox, C. C. 233, Patteson, J.. (w) Reg. v. Walford, 8 C. & P. 767. The report does not state whether these depositions were taken in the presence or absence of the prisoner. of a person, on the investigation of whose death the coroner's jury returned a verdict of Wilful murder against some person or persons unknown,' and the depositions taken before the coroner were in the possession of the officer of the court before whom the prisoner was to be tried; it was held that, although the coroner could not have been compelled to return the depositions under the 7 Geo. 4, c. 64, s. 4, yet the judges had power by their general authority as a court of justice, if they thought it essential to the interests of justice, to order a copy of them to be given to the prisoner. (x) Where a prisoner was indicted for obtaining money by falsely Letters. pretending that a parcel contained a number of letters, and those letters had been seized under a search-warrant, and were in the possession of the prosecutrix, who had written and sent them to the prisoner, an order was made by the Central Criminal Court for an inspection of the letters, but not for copies. (y) Where civil rights are depending, a party has a right to inspect, Inspection of and take copies of such books, &c., as are of a public nature, public books. wherein he has an interest; (2) but a rule for inspecting a public writing is never granted, where the party who has them in his custody would, by producing them for inspection, expose himself to a criminal prosecution; for in criminal cases a party is never compelled to furnish evidence against himself. (a) documents. 2ndly. Of the proof of private documents. Before the 28 & 29 Vict. 2. Of the proof c. 18, the execution of all written instruments which were attested; of private whether under seal or not, must have been proved by the subscribing witness, if he could be produced, and was capable of being examined. (b) And this although he had become blind, as he might, from his recollection of the transaction, give most important evidence respecting it. (c) But where the attesting witness was dead, (d) or insane, (e) or absent in a foreign country, or not amenable to the process of the superior courts, (f) as where he was in Ireland, (g) or where he could not be found after diligent inquiry, (h) evidence of the witness's handwriting was admissible. (i) In these cases the proof of the subscribing witness's handwriting was evidence of the execution of the instrument by the party therein named, whose signature the instrument purported to bear; and for the purpose of proving the execution, that is, that the instrument was executed by the party so named, it was not necessary to prove the handwriting of the party. (j) (x) Ex parte Greenacre, 8 C. & P. 32, Littledale, J., and Coleridge, J., and per Coleridge, J., 'Supposing these depositions had been against some other person tried a year ago for an offence with which this particular prisoner had nothing to do, yet if we had them, have we not authority as a court of justice, if we think it essential to the interests of justice, to order a copy of them to be given to him? I think that we have.' (y) Reg. v. Colucci, 3 F. & F. 103. Quare whether these letters were not the property of the prisoner; and quære the right to issue a search-warrant for them. C. S. G. of bankers' books under the Bankers' (b) Doe v. Durnford, 2 M. & S. 62. (c) Cronk v. Frith, 9 C. & P. 197, (e) Currie v. Child, 3 Campb. 283. (h) Cunliffe v. Sefton, 2 East, 183. FF Where proof by attesting witness is unnecessary. Lost instrument. Evidence of identity. But now by the 28 & 29 Vict. c. 18, s. 7, 'it shall not be necessary to prove by the attesting witness any instrument, to the validity of which attestation is not requisite, and such instrument may be proved as if there had been no attesting witness.' Where an instrument is lost the execution by the parties may be proved. (k) It seems that in a case where attestation was requisite where the attesting witness to a lost instrument is dead, it is unnecessary to prove his handwriting, unless it be necessary for the purpose of proving his identity. (1) Under particular circumstances an instrument signed by one prisoner and attested by another prisoner was held to be admissible against both upon proof of their signatures. (m) Where, before the above Act, the attesting witness to a promissory note was in Canada, and his handwriting was proved by his nephew, who did not know where either the defendant or the plaintiff lived, or anything about the defendant, or about his making his mark to the note, the Court of Exchequer held that this was insufficient; for although proof of the attestation would be evidence of everything on the face of the instrument, viz., of everything he as attesting witness asserted, yet by his attestation he does not assert that this defendant signed the note; but that some F. M. did; that F. M. is left unidentified and unconnected with the person sued; but the issue to be proved is that this F. M. executed. (n) So where an attesting witness to a promissory note proved that the signature Hugh Jones was written on the note in his presence by a Hugh Jones who kept a public-house at a particular place in Anglesea, but he had not seen him since the date of the note, and the name was a very common one in Anglesea ; it was held, on the authority of the preceding case, that there was no sufficient evidence to go to the jury of the identity of the person who had signed the note with the defendant, against whom the action was brought upon the note. (0) But where a bill of exchange was directed to Charles Banner Crawford, East India House,' and a witness proved that the handwriting of the acceptance, 'C. B. Crawford,' was that of a clerk of that name in the East India House, who had left it five years ago, but he did not know whether he was the defendant in the action; it was held that there was sufficient evidence of the identity. (p) So where three bills of exchange were accepted in the name of Henry Thomas (k) Keeling v. Ball, Peake, Ev. App. xxxii. (2) Reg. v. St. Giles, 1 E. & B. 642. (n) Reg. v. Marsh, 1 Den. C. C. 505. see this case the instrument was put in evidence as part of the fraud charged against both prisoners. (n) Whitlock v. Musgrave, 3 Tyrw. 541, C. & M. 521. (0) Jones v. Jones, 9 M. & W. 75. Parke, B., 'The plaintiff might have called the defendant's attorney to say whether the person who employed him was the Hugh Jones who kept the public house.' Lord Abinger, C. B., said, 'The argument for the plaintiff might be correct, if the case had not introduced the existence of many Hugh Joneses in the neighbourhood where the note was made.' (p) Greenshields r. Crawford, 9 M. & W. 314. Ryde, and made payable at the Regent Street branch of the London and Westminster Bank, and the cashier of that bank proved that he knew the handwriting of Henry Thomas Ryde, and that the acceptances were in his writing, that he had kept an account at the Regent Street branch, but his only means of knowledge as to the handwriting consisted in his having as cashier paid cheques drawn in the name of Henry Thomas Ryde, whom he did not know and had never seen write; it was held that there was sufficient evidence of identity of the person who had accepted the bills with Henry Thomas Ryde, the defendant in an action brought upon those bills. (q) So where a witness proved that he saw a person of the name of William Seal Evans write a letter about five years ago, which letter was produced, and established a case against the defendant, William Seal Evans, for goods sold and delivered, if the identity of the writer and the defendant were shown, but the witness had not seen the person since, and did not know whether he was the defendant; it was held that there was sufficient evidence of the identity. (r) Evidence that the defendant was present when the instrument was prepared, (s) or that he had made acknowledgments respecting it, (t) would be sufficient to connect him with the instrument. And if an instrument describes a party on the face of it by name, place of abode, and trade (as F. M. of R. in the county of Y., carpenter), the cases establish that proof of the handwriting of the subscribing witness would be sufficient to show that it was signed by a person truly described as being of that name and place; but still the plaintiff must show that the defendant corresponds with that description. (u) So where in an action against James Roberts, as a petitioning creditor, it appeared from the proceedings in the Bankruptcy that the petitioning creditor was James Roberts; it was held that this was sufficient prima facie evidence of identity. (v) So where a genuine licence was proved under the seal of the Apothecaries' Company, which granted a right to practise and dispense medicines as an apothecary to a person of the same Christian and surname as the (9) Roden v. Ryde, 4 Q. B. 626. If (r) Sewell v. Evans, 4 Q. B. 626. This and the preceding case were decided at the same time. The grounds of the decision seem to have been, that where no particular circumstance tends to raise a question as to the party being the same, even identity of name is something from which an inference may be drawn. the name were one of very frequent occurrence, there might not be much ground for drawing the conclusion; but where a name is not so common, the inference would be different. The supposition that the right man has been sued is reasonable, because, if not, he might so easily prove that he was not the person, and on account of the danger a party would incur if he served process on a wrong party intentionally. In a criminal case it seems that in general the mere fact that a person of the same name as the prisoner signed a document or the like would not be considered sufficient evidence of identity. See Logan v. Alder, 3 Tyrw. 557, where Bolland, B., said, Suppose a person to be tried for forging (s) Nelson v. Whittall, 1 B. & A. 19. (v) Hamber v. Roberts, 7 C. B. 861. 435 Handwriting how proved. plaintiff, who had acted as an apothecary, prescribing and dispensing medicines to his patients; it was held that there was ample evidence to go to the jury of the identity of the plaintiff with the person named in the licence. (vv) So where in an action against a pilot for negligence in the management of a vessel, it was objected that no evidence had been given that the defendant was the pilot, whereon the plaintiff's counsel called out Mr. Henderson, intending to call the defendant's son as a witness to prove that fact, when a person answered him and said, 'I am the pilot ;' he was not sworn, but was proved to have been acting as pilot at the time of the accident; it was held that there was some evidence of identity, as the name and calling resembled those of the defendant. (w) In Doe d. Mudd v. Suckermore, 5 Ad. & E. p. 730, Patteson, J., is reported to have said, ‘All evidence of handwriting, except where the witness sees the document written, is in its nature comparison. It is the belief which a witness entertains upon comparing the writing in question with an exemplar in his mind derived from some previous knowledge. That knowledge may have been acquired, either by seeing the party write, in which case it will be stronger or weaker, according to the number of times and the periods, and other circumstances under which the witness has seen the party write, but it will be sufficient knowledge to admit the evidence of the witness (however little weight may be attached to it in such cases), even if he has seen him write but once, and then merely signing his surname; Garrells v. Alexander (c), Powell v. Ford, (y) Lewis v. Sapio; (2) or the knowledge may have been acquired by the witness having seen letters or other documents professing to be the handwriting of the party, and having afterwards communicated personally with the party upon the contents of those letters or documents, or having otherwise acted upon them by written answers, producing further correspondence, or acquiescence by the party in some matter to which they relate, or by the witness transacting with the party some business to which they relate, or by any other mode of communication between the party and the witness which, in the ordinary course of the transactions of life, induces a reasonable presumption that the letters or documents were the handwriting of the party. Lord Ferrers v. Shirley, (a) Buller's Nisi Prius, 236, Carey v. Pitt, (b) Thorpe v. Gisburne, (e) Harrington v. Fry, (d) evidence of the identity of the party being of course added aliunde, if the witness be not personally acquainted with him. These are the only modes of acquiring a knowledge of handwriting, which have hitherto, as far as I have been able to discover, in our law been considered sufficient to entitle a witness to speak as to his belief in a question of handwriting In both the witness acquires his knowledge by his own observations upon facts coming under his own eye, and as to which he does not rely (vv) Simpson v. Dismore, 9 M. & W. 47, and see Russell v. Smyth, 9 M. & W. 810, where the same Christian and surname, profession, residence, and age of a person named in a suit as those of the defendant were held sufficient evidence of identity of the party named in the suit with the defendant. (w) Smith v. Henderson, 9 M. & W.978. (y) 2 Stark. N. P. C. 164. (a) Fitzg. 195. (b) Peake, Add. Ca. 130. (c) 2 C. & P. 21. (d) R. & M. 90. |