the witness entertains on comparing the writing in question with an exemplar in his mind derived from some previous knowledge" (a).

Stamps on Instruments.]-Before concluding all which space admits respecting documentary evidence, it may be laid down as a general rule, at least for the purpose of all those instruments that are likely to come in question before a court of session of the peace, that whenever an instrument becomes in any way the direct subject of a prosecution, it cannot be given in evidence, unless it have the proper stamp, because, by the stamp acts, it cannot be read as a genuine instrument unless stamped according to their provisions. Such an instrument, however, being without a stamp, or having an improper stamp, is admissible as evidence for collateral purposes. Thus, though in a prosecution for stealing an unstamped instrument sent in a letter, which to give it any value must have a stamp, it cannot be produced in evidence against a letter carrier to prove the stealing of the instrument itself; yet it may be produced merely as a piece of paper which can be identified, in order to prove the purloining of the letter (b).

(a) Per Patteson, J., 5 Ad. & E. 730. The court of queen's bench first held, in Doe d. Perry v. Newton, 5 Ad. & E. 514, that no writing irrelevant to the issues joined, can be handed to a jury to enable them to institute a comparison with the disputed signature, (except in the case of ancient documents, where the age of the handwriting is a pure question of skill, see 2 Phill. Ev. 9th ed. 258, &c.). They next decided that a paper purporting to be signed by the defendant, but not being part of the proofs in the cause, could not be placed in a witness's hand in order to ask his opinion whether it was the defendant's signature Griffits v. Ivory, 11 Ad. & E. 322. But in Younge v. Honner, 1 C. & Kir. 51, it was held by Alderson, B., after consulting the other barons, that where a witness denies the signature in dispute, to be in a party's handwriting, he may have another writing put in his hand, and be asked if that is the signature of the party; and if he answers that it is, may be asked, Does the signature in this paper, which you say is genuine, contain or want the same peculiarities which you have before stated as your reason that the signature in dispute is not genuine? Alderson, B., has since stated the question to be, does it not enable

the jury to appreciate the testimony given by the witness; see 8 M. & W. 125. In Bromley v. Spurrier, Parke, B., at nisi prius acted on Younge v. Honner, saying, the thing to be judged of by the jury in deciding on the issue is, whether the opinion and belief of the witness on the question is of value or not. A new trial is pending on other grounds.

In Doe d. Mudd v. Suckermore, 5 Ad. & E. 703, the judges of Q. B. differed in opinion whether a witness [an inspector of handwriting from the bank of England] who had before his appearance at the trial seen the signatures on the depositions, and the detached signatures, and who had thus, as he said, acquired a knowledge of the character of the handwriting, might be asked, Whether he believed the signature on the disputed will to be the handwriting of the person who wrote the other signatures which he had seen; see 2 Phill. Ev. 9th ed. 262.

The opinion of a witness as to the handwriting of a paper not in evidence in the cause cannot be contradicted, for it raises a collateral issue, Hughes v. Rogers, 8 M. & W. 123.

(b) R. v. Pooley, 3 B. & P. 317; see 10 M. & W. 308.

But when an agreement on a paper proved to have been unstamped at the time it was signed, had been destroyed, parol evidence of its contents was not allowed to be given, even though it appeared that it had been so destroyed by the wrongful act of the party who took the objection (c); but in the absence of evidence of the fact that it was unstamped when destroyed, no presumption of the want of stamp arises (d). When an instrument is offered in evidence without the stamp required by law, the opposite counsel should ask to see it, and object immediately; for as the defect, e. g. the absence, or too small amount, of the stamp, appears on the face of it, it will be too late to do so after it has been put in and read (e), even if that has happened from accidental neglect of the counsel, after having asked to see it (ƒ).

SECTION XI.

OF THE COMPETENCY OF WITNESSES.

What Persons are Competent.]-Since the act of 6 & 7 Vict. c. 85, it may be said that nearly all the parties who are disqualified from giving evidence are those who, from tender age or defect of intellect, are incable of understanding the obligation of an oath, and those who, from a total and admitted want of religious belief, are incapable of feeling its obligations, or those who, from their intimate connexion of husband and wife are, in the eye of the law, identified; for after much previous legislation in a like direction (g), that

(c) Rippiner v. Wright, 2 B. & Ald. 478. See R. v. Castle Morton, 3 B. & Ald. 558; Williams v. Stoughton, 2 Stark. C. N. P. 292. The reason is, to prevent fraud on the revenue: per Parke, B., Giles v. Smith, 5 Tyr. 18.

(d) Wheatley and another v. Williams, Tyr. & Gr. 1048; 1 M. & W. 553, S. C.

(e) Field and another v. Woods, 7 Ad. & E. 114; 2 Nev. & P. 117. Secus, if as in the case of a check on a banker, drawn out of distance or post dated, the defect requires extrinsic evidence to establish it; in which case the party affected by it may, after it has been read, prove it to be post dated, &c.

(f) Foss v. Wagner, 7 Ad. & E. 116, n.

(g) Parishioners, Parish Officers, &c. how made Witnesses before 1843.]

The inhabitants of parishes, &c. were formerly not admissible witnesses to prove the commission of offences within their parishes, &c. for which pecuniary penalties were inflicted, applicable to the use of their poor.

But it was provided in 1787, 27 G. III. c. 29, that the "inhabitants of every parish should be deemed competent witnesses for the purpose of proving the commission of any offence within the limits of their parish, notwithstanding the penalty incurred by such offence, or any part thereof, may be given to the poor of such parish, or otherwise, for the benefit or use or in aid or exoneration of such parish; so as the penalty to be recovered shall not exceed the sum of 201." And this exception to the general rule of incompetency from interest was further extended in 1814, 54 G. III. c.

act (h) has opened the witness-box to by far the greater mass of the persons hitherto incompetent from infamy or interest, the weight of their evidence being of course estimated accordingly (h).

Persons incompetent from Defect of Understanding, or Ignorance, as children, lunatics, idiots, and ignorant adults. Mere youth, however tender, although a proper ground for cautious investigation as to the understanding of a child, is never in itself a reason for rejecting its testimony. Upon this subject, experience shows that no certain rule as to age could be adopted with propriety; if the child, of how tender age soever, comprehends the difference between truth and falsehood, and believes that falsehood is a crime, and will be punished by God in a future state, he may be sworn and examined; whereas if he has no such sense, though of an age when such knowledge might reasonably

The same rule applies to persons

be expected, he cannot be sworn (¿). who are surmised to be insane or idiots; the court is to be satisfied by its own examination of the state of their intellects, and will admit or exclude their testimony as may seem best to its discretion. A person with a mere organic defect, as one who is deaf and dumb, is not, on that account, incompetent, provided it appears from the examination of those who are acquainted with his habits that he has a sense of the obligation of an oath on the conscience and a power of understanding and answering questions (k). In this case, some person acquainted with the signs by which he is accustomed to convey his meaning must be sworn truly to interpret between the court and the witness; and being so sworn (1), must first interpret and explain to him the oath, and inform the court that he understands and accepts it; and then must interpret to him the questions asked, and return his answers as he gives them; and if, after the jury are charged, the witness, though adult and of sufficient intellect, appears to have no idea of a future state of rewards and punishments, an acquittal should be directed (m). In cases of great importance, where a child, who is a necessary witness to support the charge, is found unfit to give evidence from the mere absence of instruction, a judge will sometimes postpone the trial till the next assizes, in order that the child may be properly taught in the interval; but this course can scarcely be called for by any case likely to occur at sessions (n).

2. Persons incompetent from Want of Religious Belief.]-The second class of persons incompetent are those who deny all religious sanctions of every kind, and who, therefore, understand no peculiar sanctity in an appeal to heaven. It is not, however, necessary that the party should believe in the Old or New Testament; nor is it any objection that his belief is of the wildest or most superstitious kind; if he believes in a superior intelligence, the punisher of falsehood in a future state, he is a competent witness (o). Jews, Mahometans, Gentoos, and Deists, may, therefore, be sworn in such manner as, according to their own apprehension, is binding on their consciences, and if they are guilty of perjury are liable to prosecution for perjury (p). It has been some

() 1 Stark. Ev. 2nd ed. 93; 2 id. 407; 1 Leach, 237, Brazier's case. (k) R. v. Ruston, 1 Leach, 408. (See form of oath, ante, p. 498, n. (m) R. v. Wade, 1 Mood. C. C. R.

(n) See note to R. v. White, 1 Leach, 480.

(0) Omichund v. Barker, Willes, 549; S. C. 1 Atk. 45; 1 Wils. 84.

(p) Robeley v. Langston, 2 Keb. 314.