It is laid down generally, as a rule, in the law of evidence, that it is not allowable to prove the hand-writing of a party by a mere comparison of the disputed paper, with a writing admitted or proved to be genuine. A witness required to testify upon the subject, must possess a previous knowledge, acquired by having seen the party write, or in some other legal manner. This rule has been relaxed where the writings are so ancient that they cannot be proved by living witnesses, and yet are not of such antiquity as to prove themselves. [See Greenl. on Ev. 611 to 616; 2 Starkie on Ev. 375, 6th Am. ed.; 1 Phil. Ev. 4 Am. ed. 490; 3 Phil. Ev. C. & H’s notes, 1326 to 1331.]
In the case before us, the witnesses did not testify from any knowledge they had of the defendant’s hand-writing, that the note alleged to have been forged, was written in whole, or in part, by him. But comparing the note with the recommendation, which with the exception of the name of Walker, was admitted to have been written by the defendant; they are of opinion, either that the signatures to the note were written by the same hand, or bear a similitude to it. This evidence, according to the rule stated, was th,e result of a mere comparison, without having an exemplar jn the mind, derived from previous knowledge, to which, as a test, they could refer the note; and was consequently improperly admitted.
*755But the error in the admission of this evidence, we think was cured by instructing the jury, that it was illegal and should be disregarded by them. 'We have repeatedly held, that a party in a civil cause may withdraw from the jury evidence he has adduced, and thus deprive his adversary of the benefit of an exception; and why the same indulgence should not be extended in a criminal cause, we are unable to discover. The withdrawal of improper testimony, is not to be regarded as the privilege of the party merely; it is not only a right but the duty of the court, upon becoming convinced, pending the tidal, that it has sanctioned the admission of illegal evidence, so to inform the jury, and direct them to discard it. A defendant can never be prejudiced by such a course, as it is calculated to expedite justice, and if perchance, the improper evidence has exerted an undue influence on the minds of the jury, the court should accord to' the defendant another trial.
Whether it is competent for the jury to assist their judgment by a comparison of writings, is a question about which the authorities do, by no means agree. One class maintains that the jury cannot determine whether a writing be genuine or false, merely by comparing it with another; a second, that they may compare writings for the purpose of settling a question of doubt where the evidence of the witnesses is contradictory; a third, that they may compare two papers, when properly in evidence, and from such comparison form an opinion of the hand-writing; and some of the American cases determine that any papers are admissible, whether relevant to the issue or not, for the purpose of comparison.
■ In Myers v. Toscan, [3 N. Hamp. Rep. 47,] the court say it cannot be left to the jury to determine whether a signature is genuine or not, by merely comparing it with other signatures proved to be genuine. But when witnesses, acquainted with the hand-writing have been called and examined, other signatures proved to be genuine, may be submitted to the jury to corrobate or weaken the testimony of such witnesses. So in Rowt’s adm’x v. Kile’s adm’r. [1 Leigh’s Rep. 216,] it was determined, that proved specimens of a party’s hand-writing could not be laid before the jury, that they might judge by a comparison thereof whether the disputed writing be genuine. [See also Boman v. Plunkett, 3 McC. Rep. 518.]
*756Mr. Greenleaf, in his work on evidence says, that a comparison may be made by the jury where other writings admitted to be genuine, are already in the case. The reason assigned for this is, that as the jury are entitled to look at such writings for one purpose, it is better to permit them under the advice and direction of the court to examine them for all purposes, than to embarrass them with impracticable distinctions, to the peril of the cause, [p. SIS.] But the learned author says, that documents irrelevant to the issues on the record, cannot, according to the modem English decisions, bé received in evidence to enable the jury to institute a compaiison of hands. “For this,” says he, two reasons have been assigned, namely: first, the danger of fraud in the selection of the writings offered as specimens for the occasion; and secondly, that if admitted, the genuineness of these specimens may be contested, and others successively introduced, to the inSnite multiplication of collateral issues and the subversion of justice. To which may be added the danger of surprise upon the other party, who may not know what documents are to be produced, and therefore may not be prepared to meet the inferences drawn from them.” [Id. 615.] The American cases on this point are by no means uniform, as we have already seen. In New York, Yirginia and North Carolina, the English rule has been adopted; while in Massachusetts, Maine and Connecticut, it seems that any papers whether relevant to the issue or not, are admitted for the purpose of comparison of the handwriting. [Id. 616, note 1, and cases there cited; Russell on Cr. 3d Am. ed. 727, note 2.] In the Farmers’ Bank of Lancaster v. Whitehill, [10 Serg. & R. Rep. 110,] it was decided, that other evidence being adduced to the point, writings admitted to be genuine will be allowed to go to the jury in a civil case, for the purpose of enabling them to determine by a comparison of hands, whether the paper in question, was written by the party who is sought to be charged with it. [See also McCorkle v. Binns, 5 Binn. Rep. 340.] And in the later case of Callan v. Gaylord, [3 Watt’s Rep. 321,] the court say, that in this respect, there is no distinction between civil and criminal cases. See further, [3 Phil. Ev. 1326 to 1331, C. &H’s notes,] where the law touching comparison ofhand-writing, is largely considered with reference to the English and American decisions.
But there is also a decision of this court, which is pertinent to *757the question. In Little, adm’r, &c. v. Beazley, [2 Ala. Rep. N. S. 703,] it was said that comparision of hand-writing, by submitting different writings having no connection with the matter in issue, is not permitted by law.” In the first and second counts of the indictment the defendant is charged with the forgery of a promissory note, which is set out literally; the recommendation is copied into the indictment, but there is no allegation in regard to it. Under these counts the recommendation would not be admissible, because it could have no influence in determining whether the defendant was guilty of the offence charged; and according to the case cited, being irrelevant to the issue on these counts, it could not upon proof, that the defendant admitted its genuineness, be laid before the jury, that by a comparison of the note with it, they might say whether they were both written by the same hand.
The question submitted under the third and fourth counts was; whether the defendant falsely made, &c., the recommendation of the note. To make out this issue, the recommendation, if in existence and within the reach of the prosecutor, was indispensable evidence. Under these counts it may be regarded as having been properly befoi'e the jury. The inquiry then arises, whether under such circumstances, the forgery of the note could be proved by comparing it with the recommendation. Whether a comparison by the jury is not permissible, where evidence, other than the genuine and disputed paper has been adduced, we need not ■consider; for in the present case, no direct proof of the forgery of the note was laid before the jury, but they were directed to determine that question by comparing the note with the recommendation. The law on this point, we have seen, is greatly embarrassed by contradictory decisions, and we' will not undertake to lay down with exactness, what is believed to be the true rule -*”on the subject; but we think that mere comparison of papers- by a jury, is not allowable in the absence of all other proof, for the purpose of determining whether that, about which there is a controversy, is true or false. Where there is other evidence, and the jury are in doubt, it is perhaps proper, that they should, for the purpose of satisfying their minds, refer to writings which have been offered as proof in the cause. But whether or not it be correct to do so, in the nature of things it would seem impracticable *758to prevent it, as the jury are not bound to disclose the grounds on which they attained a conclusion.
No evidence having been given independently of the writings, tending to show that the note was forged by the defendant, it follows that the instructions of the court to the jury, that this question might be determined by a mere comparison of hand-writing, was incorrect.
The sixth section of the act of 1836, enacts «that if any person, or persons, shall falsify, make, alter, forge or counterfeit, or cause or procurcc to be falsely made, altered, forged or counter-fieted, or shall aid or assist in the false making, altering, forging or counterfeiting any letters patent, gift, grant, covenant, bond, writing obligatory, note of any bank of any of the United States, or of any bank established by law, in any one of the said States, or branch of any territory of the United States, or any bill or order, or acceptance of such bill or order, cotton receipt, receipt for the payment of money or other articles of value, promissory note, bill of exchange or accceptance thereof, will, indenture or deed, or any instrument of writing whatever, to secure the payment or delivery of money, or other article of value, or in discharge of any debt or demand, with intention to defraud any person or perspns, or any corporation, or body politic, or shall either put off or offer, or cause to be offered in payment, exchange, pledge, or for sale, any such false, forged altered or counterfeited bond, writing obligatory, note of any one of the United States, or of any bank established by law in any one of the said States, or bank of any territory in the United States, or any bill or order, or acceptance of such bill or order, cotton receipt, or receipt for the payment of money, or any article of value, promissory note, bill of exchange, or acceptance thereof, will, indenture or deed, or any instrument of writing, or obligation whatever, to secure the payment or delivery of money, or any other article of value, in dicharge of any debt or demand, with intention to de-frand any person or persons, corporation or body politic, knowing thé same to be false, Altered, forged or counterfeited, and shall be thereof convicted, &c.” The paper which the defendant is charged in the third and fourth counts with having falsely made, is nothing more than an affirmation that the makers of the note to which it refers were able to pay it. It is a written expression of opinion, and cannot according to the rules of construction be *759embraced by the statute cited. This point is .too plain to require argument; it is clearly shown by a comparison of the recommendation with the terms employed by the legislature.
Forgery, at common law, has been defined to be “ the fraudulent making or alteration of a writing to the prejudice of another man’s rights” or “a false making, a making malo animo, of any written instrument, for the purpose of fraud and deceit.” [2 Russ, on Cr. 3d Am. ed. 317.] There are also many cheats and frauds which are punishable at common law; whether the procuring of money upon the note by means of a false and fraudulent affirmation in respect to it, constitutes either of these offences, is a question not necessary to be now determined.
Lord Coke once said, “ that forgery is properly taken when the act is done i?i the name of another person.” But eleven of the English Judges were clearly of opinion in 1754, that the use of a fictitious name was within the letter and meaning of the statute of 2 Geo. II ch. 25, which, in describing the offence of forgery, speaks only of a false deed, &c., and does not say that it must be made in the name of any person, or of another. [2 East’s Crown L. 957; see also 1 Leach, C. L. 97,206; 2 Russell on Cr. 328,9.] And in Rex v. Marshall, [1 Eng. Cr. cases, 74,] it‘was held, that where one professing to indorse a bill in his own name, indorsed a fictitious name, and thus negotiated it with an intention to defraud the indorsee, he was guilty of forgery. Our statute does not require that the false and fraudulent writing should be made in the name of a person having a real existence, and the construction placed upon the English act, applies with all force to a case arising here; and consequently if the intention to defraud is manifest, it is immaterial whether the names employed indicate real persons or not.
Our statute, it will'have been observed, requires, that the forgery shall be committed with intention to defraud some person, corporation or body politic. A mere name is not a person, and it is a solecism to say that one can intend to cheat or injure a nonentity. This proposition seems to us to be axiomatic. The books which treat on forgery all concur that it is an indispensable constituent of the offence that it should have been committed to the prejudice of another’s right. Such purpose or intent to defraud, must be stated in the indictment, and pointed at the particular person or persons, against whom it is meditated. [2 Rus-*760Bell on Ci-. 353,367.] If then, the ostensible makers of the note were mere imaginary persons, there could be no intent to defraud them, and it will follow that the first count does not charge the offence in a legal manner, and the defendant could not be convicted under it.
If the second count be good (and its sufficiency has not been questioned,) the defendant might be found'guilty by proof ofits allegations in respect to the note, without any evidence relating to the recommendation. There is no charge whatever, founded upon the recommendation, and though it is set out in the count it will not be treated as an essential part of it, but rather as something superfluous from which no legal consequences follow.
If the defendant was guilty upon either one or more of the counts, but the proof did not warrant his conviction upon the others, the jury could not with propriety find a verdict against him generally; but they should particularise by their finding, which of the counts were established by proof. The instruction prayed by the defendant’s counsel on this point was, thus to direct the jury to perform their duty, and should have been given.
The record presents some one or more points on which our opinion is asked, but the questions answered, we think will lead to a correct determination of the cause, so far as the law is concerned. We have no desire to extend our opinion beyond what is strictly necessary, in this important, and in some of its facts, most extraordinary case.
The consequence of what we have said, is, that the judgment of the circuit court is reversed, and the cause remanded, that the defendant may be proceeded against according to law; and in the meantime, he is ordered to remain in legal custody, unless he shall be regularly discharged.