The opinion of the court was delivered by
Rogers, J.The evidence preliminary to the introduction of the alleged libel was sufficiently strong to justify the court in submitting the paper to the inspection of the jury. The ordinary proof of the opinion of the witness was given, and under these circumstances the question, whether it was the handwriting of the defendant, was for the jury, who are the ultimate judges of the genuineness of the paper. There is nothing in the. first exception.. The second exception was properly abandoned: but it is insisted that there is error in permitting the plaintiff to give in evidence the papers, as specified in the third exception.
The doctrine in this state is, that mere unaided comparison of hands is not in general admissible. But in corroboration of testimony previously given, such testimony may be received. In M‘ Corkle v. Binns, (5 Bran. 340,) it is ruled that evidence from comparison of handwriting, supported by other circumstances, is admissible, And on the same principle from a comparison of the types, devices, &c. of two newspapers, one of which is. clearly proved, and the other imperfectly, the jury may be. authorised to infer that both were printed by the same person. After evidence has been given in support of a writing, it may be corroborated by comparing the writing in question, with a writing, concerning which there is no doubt. The same principle is affirmed in Vickroy v. Kelly, (14 Serg. & Rawle,. 372.) Callan v. Gaylord, (3 Watts, 321.) Lodge v. Pipher, (11 Serg. & Rawle, 333.) Farmer’s Bank v. Whitehill, (10 Serg. & Rawle, 110.) Bank v. Jacobs, (1 Penn. Rep, 161)
But the. objection is not to the general principle; but it is contended there is no adequate proof the genuineness of the papers which are intended as the,standards of comparison. And on this point I am not aware of any direct decision;. although in several cases it is plainly indicated that no doubt must remain as to the handwriting of the test paper. Thus in M‘Corkle v. Binns the chief justice says, the paper must be identified beyond all doubt. And again., in the same case, he says, it may be compared with the writing concerning which there is no doubt. The Farmer’s Bank v. Whitehill, was an original administration account, settled by the defendant and his *292mother, respecting the estate of the defendant’s father, and i‘t was proved by the register of wills, that it was signed by the defendant and his mother, and s worn to by them. It was also admitted on the trial that it was his handwriting. Here nothing was left to conjecture or doubt. In the Bank v. Jacobs, the test paper was admitted to be genuine; and Mr. Justice Smith says, that when a witness has seen a person write, and declares he knows his writing, he may compare it with writings which he has seen the person write, or which it is admitted he wrote. Callan v. Gaylord is supposed to have a strong bearing on the point, because, in the argument, a distinction is attempted between papers admitted that it is said may go to the jury in corroboration, but not papers proved. But it must be remarked that this practice is not noticed by the court; and, in truth, there is no such distinction; for there can be no doubt that papers proved may be admitted for purposes of comparison. The dirhculty is not as to the character of the proof, but the manner of the proof. The court, ruled the broad principle, that comparison of hands is evidence in corroboration of other evidence which tends strongly to prove that a libel is in the handwriting of' the defendant. The chief justice takes it for granted that the book, which was offered in corroboration, was, in fact, written by the defendant. It does not appear to have been denied that the entries in the plaintiff’s book were in the handwriting of the defendant; and this, in truth, could not be done, as he had been in his employment as his book-keeper.
Mr. Justice ■ Shaw, in Moody v. Rowell, (17 Pick. 495,) seems to intimate that proof of the genuineness of the standard offered for comparison, must be directed to the fact of its having been written by the party, by one who saw him write it. See also Richardson v. Newcombe, (21 Pick. 317.)
We conceive it to be very material that strict proof of the genuine or test paper should be first given; that no reasonable doubt should remain on that point; and nothing short of evidence of a person who saw him write the paper, or an admission of being genuine, or evidence of equal certainty, should be received for that purpose. Any other rule would lay ’the doctrine open to Mr. Starkie’s principal objection to the general principle, who, speaking as to the receipt of evidence as to comparison of hands, says, that, perhaps, after all, the most satisfactory reason for its exclusion is, that if such comparisons were allowed, it would open the door to the admission of a great deal of collateral evidence, which would go to a very inconvenient length. For in every case it would be necessary to go into distinct evidence to prove each specimen produced to be genuine; and even in support of a particular specimen evidence of comparison would be receivable, in order to establish the specimen, and so the evidence might branch out to an indefinite extent. 2 Stark. Ev. 375. This inconvenience is in a measure avoided by exacting preliminary proof which leaves no reasonable doubt as to the genuine*293ness of the standard or test paper. This ryould seem to be reasonable from the very nature of a standard or test, which should itself be certain and fixed.
The preliminary evidence which was given, was an opinion of the principal witness on whom the plaintiff rested this part of his" case, with the aid to be derived from the opinion of another witness, who says that the papers No. 1, 2, 3, and 4, are his, that is, the deT fendant’s. It is, however, nothing more than his believing at last, as it is not pretended he saw him write them, nor is it any where said that the defendant acknowledged the writing to be his. There is rather stronger evidence that the specimen is not his hand-writing, than of the authenticity of the alleged libel, as we have the opinion of one more witness of the one than of the other. It is very plain that without the restrictions which have been indicated, evidence of comparison of hands, would very 'often be used ‘for very oppressive and pernicious purposes. As the party who offered them would have the selection of the criterion or test specimen, it would very frequently happen that it would be out of the power of the adverse party to disprove the allegation that the writing was his. In the case at bar, the libel is as much a test of the authenticity of the standard of comparison, or nearly so, as the latter is of the authenticity of the former.
As this cause goes down for another trial, we refrain from expressing an opinion on the six last errors. If the declaration be defective in any respect, as alleged, it may be amended before or on the trial.
Judgment reversed, and venire de novo awarded.