Page:Federal Reporter, 1st Series, Volume 3.djvu/49

 e3 FEDEBAIi B£FOBTEB. �fully executed neîther party was bound. The libellant pro- duces a paper signed by Captain Gardner, to which bis naine, also, appears. That this is his signature, or that he author- ized it to be put there, however, is not shown. The paper was returned to Hager & Co., from New York, with the libel- lant's name upon it. But this does not even tend to prove that he put it there, nor does the deposition of Mr. Pew tend to prove it. He signed a paper, he says, of which he attaches a eopyio his deposition. This 'copy' is found, on comparison, to be similar to the paper in controversy, except in certain im- portant erasures and alterations, which the latter shows, and the 'copy' does not. But, even if we overlook this serious difference, how can it be affirmed that the paper in contro- versy is the original, signed by Mr. Pew, and not itself a copy, also ? The testimony is but secondary evidence of the fact involved, and is therefore incompetent. If it were showu that the original is lost, or beyond the libellant's reach, tha evidence would be admissible and sufficient ; but in the ab- sence of this it cannot be listened to. Had the paper in con- troversy been exhibited to Mr. Pew, and his signature thus proved, the difBculty would have been avoided." �On the case going baok the paper was exhibited to Mr. Pew, and he testifies to the genuineness of his signature. But it now appears that when the paper came to hixE, exe- cuted by captain Gardner, the important alteration before referred to had not been made, but that it was made before the paper left Mr. Pew's hands, (for his agent's hands were his,) in advance of • delivery ; and I find no evidence that the respondents assented to this alteration, or were ever in- formed of it. The libellant's oounsel say : "There is no direct testimony as to whether the alteration was assented to byany of the owners, but ail the circumstances show, and ail tha witnesses say, that it must have been assented to, though owing to the lapse of time — about five years — ^they could not remember." I do not, however, find any suoh such circum- fltances ; and the expressions of the witnesses, referred to, fall far short of the necessary proof. The purpose in reducing «ontracts to writing is to secure the most satisfactory evidence ����