The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-01-22


the statements in Perry's evidence were false and
paper was marked as an exhibit In the case
THE THE LAW OF EVIDENCE ON ANCIENT DOCUMENTS.
Inc deiendant's counsel was about Offering some
evidence as TO comparison Of the handwriting OF
MAJOR Reuben Ballou, by comparing the signature
o. dnat person with his signature on some ancient
+, Mr. Chatheld made a short argument contend
ing mat there was nothing In the law OF the State
OF New York to justify this description Of testi-
mony. He cited some authorities to the Court.
Mr. OConor said that II this were ever to
States that Court would net tie themselves down
to the decisions OF states on this question, which
seemed to vary considerably. u this State there
experts as to handwriting, founded upon the very
good reason that an intelligent jury was quite
could they dor Ancient documents, presumably
authentic, brought not from private source, but
they proposed to submit them to comparison be-
fore the jury. The papers were dated, and the
presumption OF truth rather than alsehood allowed
them to be brought into evidence. 1t seemed to
him that 1t would be cruel to reject them espe-
cay as there could be no expert evidence. II these
ancient papers, offered for the purpose OF COMPARE
son, were rejected, the defendant could have no
defence on this point.
Mr.. Carter followed on the same side with Mr..
O'Conor and centended that In England, under
the common law, In the case OF ancient documents
IL r was tae constant uniform and unquestioned
handwriting, other documents proved to the Salts
faction Of the Court to be in the handwriting of the
proved by comparison. The learned counsel then
cited to the Court case in fifth Adophus and
Ellis, page 514, to support his argument.
Mr. Hoar replied, stating that they could not
prove one contested fact by another. Where an
ancient document was put in without any proofs
not allow them to presume 1t was a test by which
comparison as to handwriting could be made un-
less there was no living witness by which the hand
writing could be proved.
Mr.. Chatfeld said that in order to qualify party
to put In this class OF evidence the first thing
OF comparison should be genuine writing.
Judge shipman said he believed that, in the
nized the distinction In favor Of ancient docu-
ments.
case IN this State favoring the admission OF this
class OF evidence nor did he believe there was one
Mr. O'Conor supposed the law TO be there. II this
case went to the Supreme Court that Court would
decide this question on the law OF the State of New
Mr.. OConor-They will not make half dozen de-
cisions on common law rule of evidence.
Mr.. Chatfeld-I think you will find they have
done So
Mr.. Carter-Not on question as to q common
Judge Shipman said his impression was after
careful ana dllgent examination OF this case, that
there was distinction, even in the State of New
York, in favor OF admitting ancient documents for
the purpose OF comparison. BY getting proper
materials they could, by comparison Of hands,
1t was said that the documents proposed to be put
In were not ancient writings. 1t was NOW seventy
died. That was lapse of time during which no
person could have seen this individual write and
in all essential particulars he must regard the pa
pers as ancient documents. The most embarrass-
ing feature OF this case was the statement of de-
fendant's counsel that he did not propose to call
any experts. But he Judge Shipman) wished to
say that book had been recently published in
England IN which 1t was laid down the law that
not only should ancient documents be received for
the purpose of proving handwriting by COMPARE
son. but that the examination experts would fol-
low as necessary consequence. He would admit
the evidence
Counsel for plaintiff excepted.
Mr.. Carter then proceeded to put in evidence the
ing the signatures OF Major Reuben Baou. who is
claimed to be the father OF George Washington
Bowen by Betsy Bowen, and they are admitted for
the purpose OF comparing the signatures Of Major
Balou, as they appear thereon, with the alleged
signature OF the same person to the entry in the
king Henry Book" recording the birth Of George
Washington. The defendant claims that this last
named entry Is forgery, and the opposite is main
All these papers were submitted to the inspection
OF the jury, who closely examined them.
Mr. Hoar-We have powerful mic oscope, and
snail 0er 1t to the jury they think IL Will aid them
In the examination and inspection OF these papers.
>, Mr.. O'Conor-By all means, sir, let the jury have
The microscope was handed to the jury, and,
with It's ald they put the signatures to the papers
TESTIMONY OF EFFINGHAM W. wALLaRovE.
Efingham W. Walgrove sworn-l reside in this
city; am iorty-eieht years OF age; am q native
OF New York; l am an attorney and counsellor at
law; was acquainted with the late Hon. William
lnglis once Judge Of the Court OF Common Pleas:
he died in May, 1868; studied law with him when
was boy: remained with him to the end Of his
lie; his papers came into my possession; resided
In the same house with him Tor time was &C
quanted with the handwriting OF Mr.. lngis.
paper shown witness, and he was asked in whose |
handwriting it was
end as going to prove declarations. He supposed
1t was intended to show that this was in reference
to one OF the wills Of Madame Jumel, by which the
delendant Claimed there was negative evidence to
the effect that Madame Jumel never made any pro-
vision for the plaintiff and he Supposed upon that
ground an inference might be drawn by the de-
1endant that Madame Jume had no interest in the
plaintiff Such testimony was, in his opinion, irrel-
evant.
Mr.. O'Conor said the evidence was offered for the
purpose OF showing utter and absolute non recog-
milton OF the palntin by Madame Jumel. This would
not be In the way OF declaration on the part Of
Madame Jumel; but was in conformity with all the |
acts Of her life for she had never recognized this
spoke OF George W. Bowen. She never did any act
to recognize him In any way, and the words OF the
WIN only came in as declarations taken in connec-
tons lacked the not0rety OF facts, Tor facts could
not be denied. Formerly piece OF land might be |
conveyed to another by word OF mouth, but there
was something more than that required. 1t would |
not do for party to say to another. ~ enieon you
show what was intended; and so it had been the
custom to give possession OF land by handing over
twig and q piece OF the soil to the party taking
possession. This was something done that gave |
notoriety TO the act. And so, with regard to
Madame Jumel's Wills; it was notorious that she
mad never IN any OF them, made the slightest allu-
sion to the plaintiff, Bowen.
Mr.. Hoar replied that they would save great |
deal of time If he would admit as he now did, that
Madame Jumel never left any property, by will or
otherwise, to Bowen, the plaintiff, and, SO far as
this went, &c amounted only to a negative declara-
ton that she had no such son. This was not q
contradiction OF anything that the plaintiff had
been allowed to put in. II the other side was al
lowed to put In those wills they might be taken as
declarations against the plaintiff who was party
to the wills, and who was never consulted In rela-
ton to them.
The Judge said that he had excluded evidence
respecting the declarations OF Madame JumeL But
she had made Will, and the making OF a will was
an act a very solemn act OF ones life. Ii Madame
Jume had taken the plaintiff to her home and edu.
Gated him; If she had purchased an estate for him
at Providence and gwen it to him IL would be
competent to prove that act. He must admit the
evidence
Mr.. Wallgrove then, In reply to Mr.. O'Conor's
questions, recognized several papers purporting
to be wills or drafts OF wills OF Madame Jumel,