now delivered the judgment of the Court, as follows.
In the course of the trial of this cause it was proved that a sheet of paper was found in the prisoner’s chest, upon which were written several bank checks, signed with the names “ Ati*357uood & Quincy.” It was also proved by the confession of the prisoner, that the body and signature of each of those checks was in his handwriting, and that they were all lost or destroyed, so that they could not be produced on the trial; — and Charles Fox, who had carefully examined those checks and their signatures, was permitted to testify to the similitude between those signatures and that of the forged check, and to his belief that the signature of that check was in the handwriting of the prisoner. Was this proof admissible? If not, the verdict must be set aside; — otherwise, sentence must follow.
Whatever doubts were formerly entertained, it is now perfectly settled that the same rule of evidence upon this subject js equally applicable to civil and criminal cases. 1 Phillips’ Evid. 371. The King v. Calor, 4 Esp. Rep. 117. 2 McNally’s Evid. 394, 417. Note to The King v. Cator, 4 Esp. Rep. 273, a. Phillips, page 372, says — “ It is an established rule “ of evidence that handwriting cannot be proved by corns “ paring the paper in dispute with any other paper acknowb “ edged to be genuine.” This rule is not in force in this State, or in Massachusetts, with the same strictness and to the same extent as in England. Homer v. Wallis, 11 Mass. 312. But it appears by many cases that a witness may testify that the signature in question is the handwriting of the person attempted tq be charged, from his acquaintance with such person’s hand; which acquaintance may have been gained by having seen such person write, — having received letters from him, —or having seen writing acknowledged or proved to be such person’s handwriting. — The case at bar falls within this last rule.
Proof of this kind waa admitted in Sidney’s case, 3 St. Tr. 802 — and in Ld. Preston’s case, 4 St. Tr. 446 — 7. The same principle was admitted and established in the case of Ld. Ferrer’s v. Shirley, Fitzgibbon’s Rep. 195, There, in order to prove the handwriting of Cottington, a subscribing witness to a pretended deed of the Earl, a person was produced and was ready to testify that he had seen letters which his master told him had been, written by Cottington. This witness, so. offered, was rejected by the Court, because he could not testify, nor was it proved, that such letters were in fact Tnrilten by. Cottington. It appears, that ho would l\ave been admitted, if this fapt had beea *36established, — and even without producing the letters, or shewing that they could not be produced. Phillips, page 369, commenting on this case, says, “ The rule to be deduced is — that a “ witness may be admitted to speak to a person’s handwriting, if he has seen letters which can be proved to have been written by V him.”"3 He intimates that it would be reasonable that the opposite party should be allowed to call for the production of the letters for examination ; — but this principle,'if well founded, cannot apply to papers which have been lost or destroyed without fraud or fault.
The same principle is recognized-and the same kind of proof was admitted in Layer’s case 6 St. Tr. 275. In the trial of the Seven Bishops the same kind of proof was admitted as to several of them; and though the Court were divided in opinion, yet it was considered legal and proper in civil causes; but as the distinction between civil and criminal causes touching this point no longer exists, the case is an authority in support of the admission of Fox’s testimony. The case of The King v. Cator, is different from the case at bar. But even there, Baron Hotham in giving his opinion says, “ I do not know how that gen- “ tleman [the inspector of franks,] could speak to the handwrit- “ ing, unless he could say he had seen the party write, or unless “ he had been in the habit of correspondence 'with him, excepting “ that he is called to speak as a man of science to an abstract “ question.” This knowledge of the party’s handwriting, gained by correspondence, seems not to be more certain than that gained from seeing papers or letters expressly acknowledged to be his writing. If the case of The King v. Cator be considered as variant from those above cited, and tending to shew the inadmissibility of the testimony of Fox, it may be remarked that Baron Hotham considered it directly and completely a “ com- “ parison of hand,” — andón that sense in which the rule in England in some respects differs from the rule in Massachusetts and in this State. In the case of Smith v. Fenner, 1 Gal. 170, Mr. Justice Story admitted a wótness who swore to the handwriting of the scribe who wrote the will then in question, and produced certain deeds in his possession, and was permitted to swear to certain peculiarities of resemblance in the writing;— the Court observing that such was “not a mere comparison of hands.”
*37On these authorities, and for these reasons, we are all of opinion that according to the principles of law as now settled, understood, and reduced to practice, the proof objected to was properly admitted; and of course the motion to set aside the. verdict is overruled.