in court, the first question is, whether they are really the writings. they purport to be. But ancient deeds, maps, and histories are usually admitted as such without question, on account of their antiquity. Also, the returns of sheriffs and other officers of court, and the notarial acts of notaries public, usually pass unquestioned, because of their official character. But these are exceptions to the general rule, which is, that whenever a writing is offered in evidence, its genuineness or identity must first be proved. If there be a subscribing witness, he must be called; if he cannot be had, his absence must be accounted for, and then his handwriting may be proved, which will be taken as proof of the execution of the writing. If there be no subscribing witness, the handwriting of the maker must be proved. Our statute dispenses with the proof of the execution of bonds, bills, and notes, as we have seen, unless denied under oath. When a witness is offered to prove handwriting, the general rule is, that he must have seen the person write. The only exception is where he has become acquainted with the handwriting by a correspondence with the person. It is not allowable to submit to the jury an admitted specimen of handwriting, that they may compare it with the one in dispute. The farthest that courts have gone in the comparison of handwritings, is to call experts or men of skill to examine them, and let their opinion go to the jury. But in more recent decisions even this has been denied, unless the persons of skill have seen the person in question write. (a) I have thus far supposed the writing to be in the possession of the party offering it. If proved to have been lost or destroyed, its contents may be proved by parol. (b) If in the hands of a third person, he may be required to produce it, by notice to that effect in the subpoena, which is thence called a subpana duces tecum; if in the hands of the opposite party, notice must be given him to produce it, and on refusal, the contents may be proved. If the interest of a party require the actual production of books and papers in the possession of the opposite party, our statute empowers the courts of law to enforce their production, whenever a court of chancery would do so. For this purpose, ten days' notice must be given, particularly describing the books or and if he refuses without good reason, he must pay the expense of proof. So either party may demand the inspection or copy of any writing in the possession of the other, and if refused without good reason, may have it excluded on the trial, or if he wishes it as evidence, his affidavit of its contents may be received. This includes all books, papers, or documents. § 359–61. See act of March 6, 1857, amending § 360 of the Code. As to handwriting, see 1 Greenl. Ev. § 576-81, where the subject is exhausted. As to who are experts, see same book. § 440. Perhaps the best definition is, persons professionally or scientifically acquainted with the subject. And see Hicks v. Person, 19 Ohio, 426; Clark v. The State, 12 id. 483.

(a) The testimony of experts is admissible, though they have never seen the person in question write, and have no previous knowledge of his handwriting, but found their opinion upon the comparison of the disputed paper with other papers already in the case, and admitted or proved to have been written by the person claimed to have written the disputed paper. Calkins v. The State, 14 Ohio State, 222. And see Rogers v. Ritter, 12 Wall. 317.

(b) As to lost deeds, see Allen v. Parish, 3 Ohio, 107; Blackburn v. Blackburn, 8 id. 81; Armstrong v. M’Coy, 8 id. 128; Starke v. Smith, 5 id. 455.

papers required; at the expiration of which a motion may be made for an order that they be produced. If the order be granted upon the plaintiff and he fail to comply, a judgment of nonsuit may be entered against him; if upon the defendant, and he fail, a judgment by default. When a writing is thus made evidence, its effect upon the issue is to be gathered from its contents; and this is partly a question of law for the court and partly a question of fact for the jury. The general rule is, that no extrinsic or parol evidence can be admitted to explain any ambiguity in its contents, or supply any deficiency. But a distinction is made between latent and patent ambiguities. A patent ambiguity, is one apparent upon the face of the writing, and discoverable on the mere perusal. This cannot be explained by parol evidence, to show the actual meaning, because there would be danger of thus making a writing different from that which was intended. But a latent ambiguity, being discoverable only by reference to extrinsic facts, may be explained by extrinsic evidence. Thus if a writing name one person, and there happen to be two of the same name, the one actually meant may be ascertained by parol evidence.

Personal Testimony. (a) Personal testimony is that which is

(a) The Code has greatly modified the law as to the competency of witnesses. Neither interest in the event, nor being a party, nor conviction of a crime, is any longer a disqualification, but goes only to the credibility. Each party may testify for himself, and compel his adversary to testify. Nor is color or want of religious belief any longer a criterion of competency. But those who are still incompetent include persons of unsound mind; infants under ten years who appear incapable of testifying intelligently; husband and wife for or against each other, or concerning any communication made by one to the other during the marriage, whether called while the relation subsists, or afterwards; attorneys, as to any professional communication, without the consent of the client; and priests as to confessions made in the course of church discipline, without the consent of the person confessing. § 310-5. The act of April 18, 1870 (67 Ohio Laws, 113), amending the 314th section of the Code, provides, "The following persons shall be incompetent to testify: 1. Persons who are of unsound mind at the time of their production for examination. 2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. 3. An attor ney concerning any communication made to him by his client in that relation or his advice thereon, without the client's express consent, or a physician concerning any communication made to him by his patients in that relation, or his advice thereon, without his patients' consent. 4. A clergyman or priest at any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs. 5. No person who would, if a party, be incompetent to testify under the provision of section 113, shall become competent by reason of an assignment of his claim. 6. Nor shall any person who would be incompetent to testify under the provisions of said section, in an action between himself and any person named therein, become competent by reason of a sale or transfer of any property by said executor, administrator, guardian, trustee, heir, or devisee, concerning which property said action is brought, or in which action the title to the same is involved. 7. Husband or wife concerning any communication made by one to the other during coverture, or any act done by either in the presence of the other during coverture, unless such communication was made or such act was done within the known presence, hearing, or knowledge of a third person competent of being a witness, whether the husband or wife be called as a witness while that relation subsists or afterwards. By the provisions of the act of July 2, 1864, and of the amendatory act of March 3, 1865, parties may now testify in the courts of the United States, with few exceptions, in civil actions. These provisions apply also to cases in which the United States is a party. Green v. The United States, Wall. 655. At common law it has been held in Ohio that a woman, who has been divorced, is not a competent witness against

given under an oath or affirmation. It is either given orally in court, or by depositions. But in either case the first question is, who are competent to testify? and the law holds the following persons incompetent: 1. For want of requisite understanding, idiots and lunatics are always excluded; and infants are excluded whenever, from express interrogation by the court, they are found not to comprehend the nature of an oath. 2. On the ground of interest, all persons are excluded who have the least direct pecuniary interest in the event of that particular suit; but not those who have an indirect interest, however great, in the question of fact therein disputed. When we reflect that, with the single exception of husband and wife, the nearest friends and relations of the parties are allowed to testify, notwithstanding the strong bias of affection, this absolute exclusion, for any merely pecuniary interest, would seem to be of doubtful expediency, to say the least, yet so the law stands, and the only exceptions made by our statutes, are those of legatees in a will to which they are subscribing witnesses; persons testifying to their own accounts of not more than eighteen months' standing; and mothers of illegitimate children, as to who is the father. 3. On account of infamy, all persons are

her late husband to prove a contract made by him during coverture. Cook v. Grange, 18 Ohio, 526. But a widow is a competent witness against her husband's administrator when her testimony is not a disclosure of her husband's conversations or admissions, or a violation of his confidence or prejudicial to his reputation. Stober v. McCarter, 4 Ohio State, 513. The act of March 3, 1860, section 1, takes the place of section 313 of the Code. It excludes the testimony of a party where the adverse party is a guardian, executor, or administrator, except in certain specified cases in which such testimony is admissible. But the section as amended April 15, 1867, does not prevent the administrator from testifying, where he is plaintiff, as to facts occurring prior to the death of his intestate. Doughman's Adm'r v. Doughman, 21 Ohio State, 658. A party to a suit is incompetent to testify as against parties claiming through a deceased person, as to facts occurring before the death of such deceased, though his evidence would be admissible against other parties to the suit. If the case be one in which several judgments may be rendered, the testimony may be received as to those against whom it is competent, and excluded from consideration as to the others. Hubbell v. Hubbell, 22 Ohio State, 208. It provides also that where the deposition of a party is taken, the notice must state that the deposition to be taken is that of a party. See Myers v. Walker, 9 Ohio State, 558. As to the competency of the evidence of husband and wife for or against each other under section 314, see Bird v. Hueston, 10 Ohio State, 418; Nuser v. Beach, 15 Ohio State, 172. A court, so far from requiring an attorney to disclose the communications of his client, will not permit him to do so without his client's consent. But where a party offers himself as a witness, he, under section 315 of the Code, consents to the examination of his attorney. King v. Barrett, 11 Ohio State, 261. Section 313 of the Code is in the nature of a statute against frauds and perjuries. The testimony of a party is excluded where it relates to transactions between him and a deceased person whose estate is affected by the suit. It was considered that there would be a temptation in such a case to fraud and perjury against which protection should be given by excluding the testimony. Stevens v. Hartley, 13 Ohio State, 525. See also Hoover v. Jennings, 11 Ohio State, 624.

The form of the oath is as follows: You solemnly swear in the presence of Almighty God [or on the Holy Evangelists], that you will testify the truth, the whole truth, and nothing but the truth, in the case now pending, wherein is plaintiff and is defendant; and this you do as you shall answer to God. The affirmation begins: You do solemnly declare and affirm that, &c.; and concludes: And this you do under the pains and penalties of perjury.

It has been doubted whether the phrase," the whole truth," ought not to be omitted, because the witness may not be interrogated to that extent.

66

excluded, in this State, who have been convicted of any penitentiary offence, except manslaughter, and duelling, unless afterwards pardoned. If this exclusion proceeds upon the ground that these persons would perjure themselves, and that the jury could not detect their falsehood, it seems unreasonable; and if this be not the ground, it is difficult to conjecture what is, or how a pardon would help the matter. 4. On account of color, in this State, all black and mulatto persons" are excluded from testifying in cases where either party is white. This rule, to say the least, approaches the verge of inhumanity; and hence our courts have decided that they will construe the provision strictly, and admit all persons above the shade of half black, which is the meaning of mulatto. (a) 5. For want of religious belief, (b) it has been the rule to exclude all persons who do not believe in the existence of a Supreme Being, and in a future state of retribution. But when our constitution declares "that no human authority can, in any case whatever, control or interfere with the rights of conscience," it may well be doubted whether this inquiry can properly be made of a witness, to say nothing of the absurdity implied in questioning a witness as to his belief, for the purpose of showing that he is not worthy of belief. Besides, the oath of an atheist, though it wants the religious obligation which belongs to the oath of the believer, has yet the same temporal obligation resulting from the pains and penalties of perjury. For these reasons it would seem that the want of religious belief ought not to render a witness incompetent, though the jury may properly take it into consideration in weighing his credibility. These five classes of persons, together with husband and wife, where either is interested, comprehend all the persons who are excluded from testifying on the score of incompetency; and the only persons who are privileged from testifying, are attorneys, with reference to all matters professionally confided to them by their clients. Efforts have sometimes been made to obtain this privilege for clergymen and physicians, with respect to matters communicated to them in professional confidence; but without success. (c) I have often felt a doubt whether the question of competency had not better be altogether dispensed with. From the statements just made, you will readily perceive how often it must happen, that those who know most about the matter before the jury, cannot be heard

(a) See Medway v. Natick, 7 Mass. 88; Gray v. Ohio, 4 Ohio, 353. This had ceased to be ground of exclusion before the Code.

(b) Hunscom v. Hunscom, 15 Mass. 117; Wakefield v. Ross, 5 Mason, 16; Kisor v. Stanriper, Wright, 323; Easterday v. Kilborn, id. 343. The new constitution declares this to be no ground of exclusion.

(c) Duchess of Kingston's case, 11 State Trials, 243; Du Barre's case, Peake's Cases, 78; 1 M'Nally, 254. But see the case of The People v. Phillips, decided in New York in 1813, by the court of sessions, specially reported by Counsellor Sampand abridged in I Western Law Journal, 109, in which it was held that a Catholic priest was privileged from testifying. De Witt Clinton delivered the opinion. See also a work upon this subject by Anstey, referred to in 5 Law Reporter, 237. The Code privileges clergymen and physicians.

son,

at all, because incompetent. It is not pretended that all persons are equally entitled to belief; but the question is, whether, with all the sanctions in favor of truth, and all the means of detecting falsehood, which the law so abundantly furnishes, we might not safely hear testimony from every quarter, and credit that which would seem worthy of credit. Equity does not hesitate to receive the testimony of the parties themselves; and why should courts of law be more scrupulous? The question presents a choice of evils. By admitting all persons to testify, we should more frequently have false testimony, which sometimes would escape detection. By excluding certain classes of persons altogether, we often deprive ourselves of the only testimony which could develop the truth. Is not the latter evil the greater? (a)

Attendance and Examination of Witnesses. Every litigant has a right to the personal attendance of witnesses, who are within the jurisdiction of the court, upon tendering the legal fees, if demanded. The first process is a writ of subpoena, which in form commands the witnesses to appear and testify under a penalty for disobedience; but which in fact is nothing more than a notice. If the witness thus notified refuses to appear, he may then be attached and brought in by force, to answer for his contempt of the process of the court. He is, likewise, answerable in damages to a party who should lose his cause for want of such attendance. When presented at the stand, he may be examined on the voir dire, which is a preliminary oath, to answer all questions touching his competency. If no objection be made on this ground, the regular oath or affirmation is administered by the clerk. The party who calls him, first examines him; and this is called the examination-in-chief. During this examination no leading questions can be asked; that is, no questions so framed as to indicate the answer desired; but the witness may refresh his memory as

(a) By the Code, a witness cannot be compelled to go out of his county, either to testify in court or to give his deposition. At the time of service he may demand his travelling fees, and one day's attendance, and at the commencement of each day after the first, his fee for that day. If he consent to go into another county, he is not liable to be sued therein by being served with process. Prisoners may be produced as witnesses by order of court, or their depositions may be taken in prison. § 316331. [the witness]. We command you, that laying aside all manner of business or excuse, you appear before the court of the [name the day and hour], then and there to testify in a certain action wherein is plaintiff and is defendant; and this do under penalty of the law.

Form of a Subpæna. To

on

In a subpoena duces tecum, add: And also that you bring with you a certain [describe the writing or document required].

Sometimes the subpoena is addressed to the sheriff, commanding him to summon the witness; but the above is according to the Code. If the witness has been personally served, and does not appear, a peremptory attachment may be had to bring him in; but if by a copy left at his residence, the practice is to grant a rule in the first instance to show cause why he should not be attached.

The form of the writ of attachment is as follows: We command you that without delay you attach —, so that you have him before our court of

to answer

touching a contempt which he has committed against said court, as is alleged, and further to abide such order as shall be made in this behalf.