90 Pa. 89 | Pa. | 1879
delivered the opinion of the court,
The rule is within the power of the court to make, and filing an affidavit of defence is not the requisite notice to put a party to proof of execution of the writing. There can be nothing in the allegation that “the construction of the rule by the court; worked injustice to John Reese;” nor was it a favor to Margaret Reese. The first witness called‘by the latter testified that she saw the former sign his name to the note. With that witness present, both parties having knowledge of what she would say, the whole contention would seem to have been to obtain a construction of the rule; and we are not convinced that there was error or hardship in the interpretation. It would be an extreme case which would require reversal, because of error in admitting a writing without preliminary proof of signature, when, in a subsequent stage of the trial, positive evidence was given of its execution: Hannay v. Stewart, 6 Watts 487; Gaskell v. Morris, 7 W. & S. 32.
The last four assignments are to portions of the charge. By themselves, some of these seem erroneous; but are not, taken with the context. For instance, the sentence: “As she was talking to strangers, she was under no obligation to tell them the truth about her business,” is in the midst of remarks of which the judge says: “I only suggest these thoughts; they arise naturally out of the evidence, and must be considered by you in reaching a correct conclusion. They are for you entirely. ' In respect to them the court does not mean to bias your minds in the least.” Again, the subject of the eighth assignment is not “relative to the testimony of experts,” but to the particular testimony of the witness, quoted immediately preceding the alleged erroneous words. The jury were expressly told that it was for them to say what weight should be attached to the testimony of the expert; Mr. Rauch. Although the charge as a whole very decidedly exhibits the learned judge’s opinion in favor of the plaintiff, supported by able argument, it is not assigned that the jury were misled thereby. He submitted every question to the jury, saying in conclusion:.“ The case presents questions of fact only ; they are entirely for you to determine.”
Rauch, while waiting as a witness for John Reese, saw him write several times — he wrote at request of his counsel. From knowledge of Reese’s handwriting, thus acquired, the witness was incompetent to testify his belief as- to the genuineness of the signature in question. It has never been the .practice in Pennsylvania to permit a witness to give an opinion when taught in that manner. In Stranger v. Searle, 1 Esp. 14, the witness had seen the defendant write his name several times, previous to the trial, for the purpose of showing to the witness his true manner of writing; Lord Kenyon rejected the testimony, saying: “The defendant might
The only error appearing is the overruling an offer to prove by an expert whether, in his judgment, the body of the note and signature were written by the same hand. “It was ruled in Fulton v. Hood et al., 10 Casey 365, that the testimony of experts is receivable, in corroboration of positive evidence, to prove that in their opinion the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time. This case indeed is the converse of that, but the principle is undoubtedly the same, whether the evidence is of experts to attack or support the instrument:” per Sharswood, J., Ballentine v. White, 27 P. F. Smith 20. John Reese had previously testified that he did not sign the note. Confessedly, he did not write the body of it. When one party alleges the body and signature were written by the same hand,' and the other the contrary, what can be more clearly admissible than testimony of one so skilled as to be able to determine the point by inspection ? Just here, if anywhere, is the testimony of an expert competent and valuable. It is certainly true that the positive declaration of a witness that she saw the party write his name, if believed, cannot be overcome by the opinion of an expert; nor can it by any other kind of evidence. Peradventure, such declaration may not be credited by the jury, and, therefore, evidence pertinent to the issue, shall not be rejected .by the court.
Judgment reversed, and a venire facias de novo awarded.