the action was on a policy of insurance on the plaint-❘ iff's wife's life, the defense fraud. The wife's declarations as to the state of her health were held receivable. Lord Ellenborough said: "What were the complaints, what the symptoms, what the conduct of the parties themselves at the time, are always received in evidence upon such inquiries, and must be resorted to from the very nature of the thing."

In Chapin v. Marlborough, 9 Gray, 244, the statement of the plaintiff to his physician, several months after the injury, of the cause of injury and that he then suffered pain, was excluded as evidence of the fact of the injury. The court said: "Any thing in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally accompany and furnish evidence of a present existing malady." Citing Bacon v. Charlton, 7 Cush. 586. In the latter case the complaints were three or four days after the accident.

In Kennard v. Burton, 25 Me. 39, the complaints were made while on the way home after the injury. The court said: "By the time in question is not intended the time of injury, but the time when it is material to prove a condition of bodily or mental suffering. And that may be material for weeks and perhaps months after an injury has been inflicted." To the same effect Gray v. McLaughlin, 26 Iowa, 279. And in Illinois Cent. R. R. Co. v. Sutton, 42 Ill. 438, the court said: "Not only the opinion of the expert, founded in part upon such data, is receivable in evidence, but he may state what his pa

"But

court said: "It is natural evidence upon those points, as her appearance, seeming agony of body, and other physical exhibitions would be." the account given by her as to previous symptoms and their origin and duration would not influence the mind of the physician upon the question as one of science, but would be acted upon by him only in proportion to his belief of its truth, either from his confidence in the narrator or from its coincidence with his judgment on that point, formed from the existing stage of the malady." Exactly the same doctrine was declared in Rogers v. Crain, 30 Tex. 284; and in Wilson v. Town of Granby, 47 Conn.

The conclusion, therefore, is: First. That the complaints and statements of the injured party at the very time of the occurrence, not only as to bodily suffering but as to the circumstances of the occurrence, are admissible as res gesta. Second. That the statements of the injured party subsequently and not substantially at the time of the occurrence, as to the circumstances of the occurrence, are not admissible, whether made to a physician or to a non-expert. Third. Complaints and statements of the injured party as to his present physical condition, although subsequently to the occurrence and indeed after suit is brought for the injuries, are admissible, whether made to a physician or to one who is not an expert.

EXPERTS AND EXPERT TESTIMONY.*

BY JOHN B. CHAPIN, M. D.

under circumstances which free it from all suspicion of being spoken with reference to future litigation and give it the character of res gestœ.”

In Denton v. State, 1 Swan, 279, it was held that the statements of a wounded man, when his wounds were being examined, in explanation of the character and extent of his injury, being part of that transaction, so far as they are necessary to communicate information upon the subject, are admissible in evidence in a prosecution growing out of the conflict in which the wound was given, but the statement of the name of the person who inflicted the injury, or as to the instrument with which it was done, constitutes no part of that information, and is not admissible.

In A Miss Goodwin v. Harrison, 1 Port. 80, an action for giving her a dose in some toddy to intoxicate and inflame her passions, her complaints to her mother the next morning were admitted "as being an exception from the general rule, founded upon the necessity of the case." This was disapproved, Brady, J., dissenting, in Spatz v. Lyons, 55 Barb. 476.

In Lush v. McDaniel, 13 Ired. L. 485, it was held that the declarations of a sick person to a physician at any particular time of his sufferings and condition are evidence so far as they refer to the time at which they are made, but not so far as they refer to their state and condition at any past time. The

this paper it is not the intention to attempt to clear away the difficulties which are conceded to surround it. It is the purpose to offer for your consideration some propositions which may promote discussion, and an interchange of views, which will in the end solve the recurring problem, viz.: The conditions which are essential to enable a witness, called into court in the capacity of an expert, to appear in such a manner that his independent judgment may be secured, and that it may be presented free from bias, or the suspicion of its existence.

The practice of the courts is to admit the testimony of a class of witnesses who are not supposed to have personal knowledge of any facts or circumstances bearing upon a pending case, but on the assumption that they are able from their special training and experience to apply scientific tests and present to the court and jury the import aud value of such evidence as may appear, which laymen could not be expected to comprehend and properly estimate. The expert witness may be said to be tolerated by the courtesy, and usages of the practice, of tho courts. He cannot have any other standing. That he can be compelled to furnish any testimony against his inclination is not yet clearly established. He has nothing to offer but his opinions or scientific deductions which may, or may not, in the estimation of tho court and jury, have an appreciable value.

According to the statutes and the common law, a person of unsound mind is not in a fit state for punishment, to enter upon his defense, or responsible for his acts. The opinion the medical expert offers has reference to the quality or quantity of mind at the time of

Read before tho Association of Superintendents of American Asylums for the Insane, May, 1880.

the commission of a crime, or when some transaction took place about which a question may arise. The opinion which is presented can hardly be said to have been formed from a circumstantial knowledge of the occurrence, or as the result, in all cases, of a personal examination.

The true mental condition of the party involved is a question of fact, like other facts pertaining to the guilt or innocence of a person charged with crime, to be determined by the verdict of a jury. This method must stand until some other process of adjudication shall be accepted. To this tribunal the medical witness offers his opinion, not as he may have formed it from the whole of the evidence adduced, but upon an assumed or a hypothetical case embracing as much of it, and omitting as much, as may serve the purpose of the examiner. Courts are not disposed to remit to other tribunals the determination of issues of fact, for there" would be nothing left for the jury to determine." So carefully guarded do the courts seek to preserve the sacred province of the jury, that the medical expert, in cases where the issue is the mental condition of the party involved, is only permitted to express an opinion upon a hypothetical question, or an assumed case.

In the language of a learned judge, "a question of this character to be admissible must always be an hypothetical one, based either upon the truth of all the evidence given in the case, or upon an hypothesis specially framed of certain facts assumed to be proven for the purpose of the inquiry. Such a question leaves it for the jury to decide in the first case whether the evidence in whole or in part is true or not, and in the second case whether the particular facts assumed are or are not proved." *

Assuming this dictum to be the settled practice in conducting judicial inquiries of this nature, hypothetical questions to be propounded to medical witnesses are prepared by counsel representing opposite theories of the case, and calculated to elicit replies entirely different. Counsel confer beforehand with medical men summoned in the interests of their clients in the preparation of the questions. By a process of ingenious aggregation, or elimination of symptoms, answers favorable to either view of the case are elicited, or such a congregation of circumstances presented so deficient in essentials, that the witness is unable to express any opinion.

While the courts are disposed to insist that the basis of the hypothetical question shall embrace conditions that have been developed in the course of the investigation, there is a radical defect permitted in their formation in this respect, that the hypothesis does not embody all the medical history, neither is the medical witness allowed to frame a case which will embrace a complete history of it. The witness is present to answer questions, and not, as he may be informed, to deliver a disquisition on medical science.

The hypothesis which is presented contains just so much of the case as will elicit an answer or opinion favorable to the party in whose interest it is framed. The courts do not insist that it embrace more, but that what it does contain shall have appeared in evidence in the course of the trial. The answer to the question comes, sometimes, with the automatism of a machine. We have known the medical witness, impatient at the tedium of a protracted trial, request that he might record his "aye" and "nay" in response to the hypothetical questions as they might appear, and that he be allowed to depart. If the questions are skillfully framed the experts usually agree in their replies, otherwise they appear ranged on opposite sides offering opinions that are contradictory. The spectacle is presented of the uncertainty of medical judgment and

* Carpenter v. Blake, 2 Lans.

science, as well as of men, who ought with like premises to reach conclusions precisely similar, expressing opinions in conflict with each other.

It is not a matter of surprise that courts have announced from the bench that medical men might be better employed at home in attendance upon their patients, and that doctors are respectable men in their way, "who are called to administer to our ailments, but we are not bound to believe their opinions unless they are compatible with sound sense; doctors give opinions which are merely speculative. They have their theories and speculations. You (gentlemen of the jury) are not bound to believe the opinion of a doctor unless it comports with your common sense."

It is undoubtedly true that many cases are presented for judicial investigation which are beyond the domain of actual determination-subjects of mere opinion, uncertainty and speculation to be determined only by results. Juries, on the other hand, havo furnished too many unfortunate instances of the extreme assertion of their prerogative in cases, within the knowledge doubtless of many here present, where they have ignored the expression of professional opinions, which were founded on actual experience, and should have been received with all the weight to be attached to the testimony of facts bearing upon the case.

How opinions which are merely speculative and theoretical are to be discriminated from those formed from actual professional experience it may not be easy to determine. It must be admitted that a real difficulty arises at this point. Possibly a recognition of this difficulty may have induced the judge whose language we have quoted to advise the jury, in the dilemma and amidst the conflict of professional opinion in the mazes of which he found himself involved, to adhere to and exercise their common sense.

We have alluded to the fact that the practice of the courts is to admit a class of witnesses known as experts, and that the physicians of asylums and others who have relations with the insane are in a position rendering them liable to be called to give testimony in certain cases. They are also subjected to a line of examination, which, while established by the usages of the courts, is not in harmony with the course of inquiry recognized by medical men and believed by them tho method best calculated to reach a correct opinion. They are not always willing witnesses. Sometimes they attend on request, and again they are present in obedience to the commands of the court.

Such briefly being the practice, it remains to consider some of the results, one of which may be stated to be a growing distrust of the value, and we may say the honesty, of expert testimony. Want of confidence exists not only toward medical experts, but toward experts in sciences reputed to be exact. It is only necessary to point to somo recent trials to assert that the want of confidence and distrust aro confined not wholly to judges and jurors, but to a certain extent pervade the community. This sentiment has its origin in various causes, among which may be mentioned:

1st. The fact that medical experts are usually summoned by counsel, and not by the court, in the interests of their side or clients, and their supposed liability to have a bias arise in the progress of the case-a possible risk that their feelings and sympathies may become enlisted in behalf of the side on which they are called.

2d. The arrangement which is sometimes made for the payment of money, or a retaining fee, to medical experts for their services, by counsel in whose interests they are summoned, the amount of which is not fixed by law, and which may possibly be contingent upon the issue of the case.

3d. The form of submission of the hypothetical ques; tion which is permitted to contain a portion, and noi the whole, of what a physician may deem essential to

the formation of a satisfactory opinion, or so much as may be necessary to bring an answer favorable to the interests of one or the other parties; and,

4th. The general prejudice which exists in the popular mind against the interposition of the plea of insanity in criminal cases.

There may be a difficulty about the adoption of any new rule for the selection of witnesses other than the one in force. It cannot become a question but that under the present practice counsel have a right to summon such, and so many witnesses as may be admissible, or that a person charged with crime may avail himself of any proper line of defense at any stage of the trial, and for this purpose call witnesses. There is no doubt, however, that the results which we have pointed out, are in great part to be attributed to the existing practice. As a profession we have the right of respectful protest, and to ask that a mode of procedure calculated in its operation to bring discredit upon the profession be changed. To effect a change, legislation must be invoked to alter the practice so that the law confer upon judges alone the power to subpoena experts in such cases where their opinions would seem to be desirable. There can be no doubt the power thus conferred would be exercised wisely and result in elevating the standing and character of expert testimony, and what is more important, restore to experts that independence of judgment and respect for their opinions we do not believe they enjoy under the present system. No suspicion of bias could then properly attach to them. They would then assume their appropriate and originally-intended relation to the court that of amicus

curiæ.

It has been urged as a defense of the present system that each party in interest is entitled to have as full an exposition of expert knowledge as can be brought forward to serve the respective interests-that in other words, medical experts should be permitted to say as much as possible in behalf of the cause in which they are engaged, and as little as possible that may serve the opposite party. This course is hardly admissible, as it ignores the true position of the expert and converts him into that of a quasi counsel.

The physician by study and actual experience acquires knowledge and matured judgment which is peculiarly his own property and capital, the independent use and enjoyment of which ought to be as fully assured to him as if the avails of his life-work were invested in goods and land. His goods and land cannot be taken from him without his consent or some process of law, and his proprietary right to his professional experience ought to be as sacredly guarded, and secured to him.

If the knowledge and experience of the expert is a necessity, and if the principles laid down above are correct, he should unquestionably be paid for the service he renders. Ought the compensation to be the subject of a private bargain between the expert and parties interested in his testimony, or be fixed in a manner authorized and provided by law? Certainly, whatever plan will elevate the expert witness above all suspicion of bias, and conduce to his independence, would seem the more desirable one indeed the best. The witness appears before the court and jury to submit his opinion on a hypothesis the elements of which are made up from evidence already adduced. He is not a juror, but a quasi juror. Extreme caution is taken that jurors themselves shall have no pecuniary relations with parties interested in the result of the trial, and penalties are imposed for a violation of a rule intended to preserve the purity of the jury box. It would therefore seem to be the proper and obvious course to authorize and direct the court in all cases where experts appear, to fix and determine their compensation, in its discretion, and if deemed necessary to go further, prohibit by positive enactment the recep

tion of any gift or compensation for expert services directly from parties interested.

The composition of the hypothetical question and the time of its submission have been alluded to as causes tending to bring discredit upon expert testimony. They are believed to exert a decided influence in that direction. The expert testimony is introduced at successive stages of a trial, and if the question is so framed as to include generally what has been produced in evidence to a certain period of the trial it necessarily embraces but a portion of the whole case. The consequence is that at one stage of the trial a hypothesis will admit of one answer by an expert, and at a subsequent stage another hypothesis framed from additional evidence warrants another, and exactly opposite answer. There is presented an apparent conflict of professional opinion between "two trained bands of witnesses in battle array against each other," with the possible and probable result of lowering, in the estimation of the court and jury, the value of the whole expert testimony. We know of no remedy for this except it may be found by changing the rule and permitting experts to express an opinion on a hypothetical question which embraces, in the judgment of the medical expert, all the points bearing on the question of insanity, where this is involved. A medical opinion formed after hearing one side of a case is deserving of no more respect, and has no more value, than a verdict of a jury formed in a similar manner, or the opinion of a high court of appeal, the judges of which are in a sense experts in law, rendered after argument on one side only.

The frequency with which expert testimony has been introduced in judicial proceedings leads to the conclusion that it is destined in the future to bear a still more important part. The influence which it will exert upon the issues of trials, and the respect in which it will be held, will depend greatly upon the independence of the witness, and his absolute freedom from circumstances calculated to produce a bias or even the suspicion of its existence. Whatever may conduce to these results. to the elevation of the standard and character of the medical expert, it should be our highest duty to promote. Notwithstanding the respect we may have for the usages and established traditions of the law, however willingly the medical witness may feel disposed to assume grave responsibilities which are imposed, and not coveted, we still believe the right of respectful protest should be vigorously exercised against practices which tend so frequently to depreciate the estimation in which he and his opinions ought to be held.

VALIDITY OF FOREIGN MARRIAGE-PROOF OF HANDWRITING-PROOF OF FOR

EIGN LAW-PRESUMPTIONS.

NEW YORK COURT OF APPEALS, SEPTEMBER 21, 1880.

HYNES V. MCDERMOTT et al., appellants.

Where enough took place upon a vessel crossing the English channel and afterward in France between a man and woman to sustain the finding of a jury that there was a marriage between them if such transactions had taken place in the State of New York, held, that such a finding would be sustained, there being no proof as to the law of France in relation to marriage, nor of the nationality of the vessel upon which the parties mentioned crossed the channel.

There can be no comparison of handwriting by an expert unless the pieces of writing by which comparison is made are properly in evidence in the case for some purpose other than that of being compared.

A comparison of a signature in dispute with photographic copies of other writings for the purpose of allowing an opinion of an expert as to the character of the signa

ture, when the writings from which the copies were made are not before the court, ought not to be permitted. While to enable a witness to give his opinion as to hand

writing, he need not have seen the person write, it being sufficient if he has seen handwriting under such circumstances as to put it beyond doubt that it was genuine, when such witness has, while in the employ of a party as a detective, to obtain testimony in a case, gained his knowledge of the writing of the other party by the admission of such party that two pieces of writing the witness saw were genuine, held, that his testimony as to the character of the writing was properly excluded.

A witness was shown for the first time in court three volumes, purporting to contain the statute law of France. They were issued with notes by a private author and had no official authentication. The witness testified that he had been a practicing lawyer in France from 1837 until 1862, and left that country in 1863, that the volumes (two dated in 1859 and one in 1877) constituted a printed copy of the statutes of France as they existed when he practiced there; that they were commonly received in the judicial tribunals of France as evidence of the existing laws thereof; that he had no doubt they were an exact copy of the French statutes, but that he had not looked into the books save at the title page. Held, that the exclusion of this evidence as proof of the statute law of France in 1871 would not be considered error. It does not appear to be the law that a vessel sailing from an English port is presumed to sail under the English flag.

J. H. Choate and W. H. Secor, for respondents. FOLGER, C. J. This is an action of ejectment, brought to recover possession of lands once of William R. Hynes, now deceased. He died intestate. The plaintiffs claim to be his widow and his sons, respectively. If that be fact, the right to maintain the action cannot be denied. Whether it be the fact depends upon the validity as a marriage contract of what took place in his life-time between the intestate and the plaintiff who now claims to be his widow, and at times before the birth of the other plaintiffs. Enough took place at those times, if it had been done in the territory of this State, to have made a valid contract of marriage. Enough took place afterward to furnish a presumption, under the laws of this State, of a prior legally formed and subsisting marriage relation. By the law of this State a man and a woman who are competent to marry each other, without going before a minister or magistrate, without the presence of any person as a witness, with no previous public notice given, with no form or ceremony, civil or religious, and with no record or written evidence of the act kept, and merely by words of present contract between them, may take upon themselves the relation of husband and wife, and be bound to themselves, to the State and to society as such, and if after that the marriage is denied, proof of actual cohabitation as husband and wife, acknowledgment and recognition of each other to friends and acquaintances and the public as such, and the general reputation thereof, will enable a court to presume that there was in the beginning an actual and bona fide marriage. Brinkley v. Brinkley, 50 N. Y. 184, and cases there cited.

But what passed between the intestate and the adult plaintiff took place out of the territory of this State Part of it took place upon English soil, and it is conceded that it did not make a lawful marriage according to the laws of England. Part of it took place upon the sea, in a vessel coming from an English port and crossing the channel to a French port. Part of it took place in France.

In some state of the case here might come in the question, whether, if the acts which would make a

valid marriage when done in this State are done outside its bounds, and not in accordance with the law of the place where done, they will make a relation which will be upheld as a valid marriage by the laws of this State.

But this question we need not decide. There is no proof of what is the law of marriage in France, and we will not presume that it is different from that of this State. Monroe v. Douglas, 5 N. Y. 447; Savage v. O'Neill, 44 id. 298. There is no proof of the nationality of the vessel in which the parties crossed the channel, and we will not presume that it was that of a country whose law of marriage has been proved in this case to be different from that of this State, even if we are required to hold that a vessel on the seas has with it the law of marriage of the nation whose flag it flies. There was enough in the testimony of what took place between the parties at sea and between them, their friends, acquaintances and the public, while they were in France, to sustain the verdict of the jury, that they were husband and wife in accordance with the law of this State. U. S. Trust Co. v. Harris, 2 Bosw. 75.

Though they cohabited in England before crossing the channel, the testimony, while it does not prove a marriage in accord with English law, shows enough for a jury to find therefrom that there was the purpose and form of marriage, that there was a refusal on the part of the woman to commence a meretricious cohabitation, and yielding on the part of the intestate to her demand for marriage before cohabitation should be had.

A marriage having been thus found on proof enough to sustain the verdict, the legitimacy of the minor plaintiffs as the sons of the intestate is beyond dispute in the case at this time. The judgment for the plaintiffs is to be sustained, unless error is shown by some of the other points made by the defendants.

First. The defendants contend that the General Term declined to use the power it had to set aside the verdict and grant a new trial. We are not able from the record to discover that it did so; if we turn to the opinious delivered, we find that matter discussed and a conclusion reached. We cannot disturb the judgment on that ground.

Second. It is claimed that the judgment for the entire mesne profits had been taken against two of the defendants, without proof of the possession by them, or either of them, of the entire premises recovered. We do not find in the record that this point was brought to the attention of the trial court. The motion to dismiss the complaint was general-that the plaintiffs had failed to make a cause of action against the defendants. The motion to direct a verdict was the same. The requests to charge do not mention it. One exception to the charge speaks of the direction to the jury to find the rental value, but it does not bring to the attention of the court the specific objection now made.

Third. It is claimed that the charge was erroneous in saying to the jury that it was essential to find whether the alleged marriage in Cleveland street was entered into by the intestate with the intention of effecting a marriage under the laws of the State of New York, and with the intention of returning to this State with the adult plaintiff as his wife. The error set up in the points is that there was no evidence in the case on which the jury could rest that finding. Without going into details, we think that there was testimony. How strong it was, we need not say.

Fourth. The court did not allow the witness Loader to testify that the handwriting of the signature to the lease of the premises in Leverton street was that of the adult plaintiff. The witness had never seen her write; he had no knowledge of her handwriting, save that got by looking upon two writings other than the

signature to the lease, which other writings she had acknowledged in his presence, and with the writings then before them, to have been penned by her. Those other writings were two signatures of names of persons and one written name of a place of residence as shown by a signature book kept by a bank at which she had opened two accounts of money deposited by her. These writings were not in evidence in the case -that is, they were not produced before the jury, and kept in court throughout the trial. The witness who controlled them was examined beyond the seas on commission. He produced them before the commissioner, but refused to part with them. Copies were taken in manuscript by the commissioner, and annexed to the deposition of the witness. The witness Loader was presented to the court as doubly competent to speak on an issue as to the genuineness of handwriting as an expert and as having personal knowledge of the handwriting of the adult plaintiff.

It does not appear from the case that the trial court determined whether he was qualified to speak as an expert. We will assume that he was, and that had the trial court thought it needful to pass upon the questiou it would have held that he was; yet, in our judgment, it was not proper to receive his testimony as that of an expert and by a comparison of handwritings. An expert in handwriting, when speaking as a witness, only for a comparison of handwriting—that is, with two pieces of it in juxtaposition under his eye-should have before him in court the writing to which he testifies and the writings from which he testifies, else there can be no intelligent examination of him either in chief or cross, nor can there be any means of meeting his testimony by that of other witnesses. This requirement is included in the rule that there can be no comparison of handwriting, unless the pieces of writing by which comparison is made are properly in evidence in the case for some purpose other than that of being compared. Randolph v. Loughlin, 51 N. Y. 456; Dubois v. Baker, 30 id. 355; Miles v. Loomis, 75 id. 288.

The nearest approach to having before the witness at the trial writings by which comparison had been or was to be made, was the bringing of the photographic copies. There was no proof of the details of the process by which they were taken, nor as to the accuracy of the work. We think that a comparison of a signature in dispute with such photographic copies of other writings, for the purpose of allowing an opinion from an expert as to the character of the signature as real or feigned, when the originals from which the copies are made are not brought before the jury, and may not be shown to other witnesses, ought not to be permitted. Photographs that have been taken of persons found dead have been admitted in evidence in this State in aid of other proofs of identity, but not alone. They were characterized as slight evidence in addition to other and more reliable testimony. Ruloff v. People, 45 N. Y. 213. A photographic picture was more unreservedly admitted as evidence upon the question of identity of person in Udderzook v. Commonwealth, 76 Penn. St. 340, and in another case, when the genuine signature and the disputed signature were both brought into court, magnified photographic copies of each, together with the originals, were submitted to the inspection of the jury, and it was held not to have been error (Marcy v. Barnes, 16 Gray, 162); but copies of letters in a letter book, produced by impress or by a machine, have been rejected. Conner v. Eastman, 1 Cush. 189.

It would be carrying the matter much further to permit an expert to compare photographic copies of signatures, and therefrom to testify as to the genuineness of a disputed signature. We may recognize that the photographic process is ruled by general laws that are uniform in their operation, and that almost without ex

ception, a likeness is brought forth of the object set before the camera. Still somewhat for exact likeness will depend upon the adjustment of the machinery, upon the atmospheric conditions and the skill of the manipulator, and is so delicate a matter as the reaching of judicial results by the comparison of writings through the testimony of experts, it ought to be required that the witness should exercise his acumen upon the thing itself which is to be the basis of his judgment; and still more, that the thing itself should be at hand to be put under the eye of other witnesses for the trial upon it of their skill. The certainty of expert testimony in these cases is not so well assured as that we can afford to let in the hazard of error or differences in copying, though it be done by howsoever scientific a process; besides as before said, there was no proof here of the manner and exactness of the photographic method used. It was not right to receive Loader's evidence as that of an expert.

The witness was also offered as one having acquaintance with the handwriting of the adult plaintiff. All his means of knowledge have been stated. The testimony was finally rejected after the objection made to it that it was a collateral fact whether the lease was signed by the plaintiff, and that the defendants had proved by her that she had not signed it. The objection is not well put in, claiming that the defendants proved by the plaintiff that she did not sign the lease. At one time she said she did not recognize the signature to it as hers, but she would not say it was not hers, while she would not admit that it was. At another time she was explicit in denial; but her testimony on this head was not conclusive. Neither can we assent that the fact sought to be proved was a collateral fact in a sense that precluded the defendants from offering any other testimony upon it than that of the plaintiff herself. She was the witness of the defendants, to be sure, and they could not impeach her. But if she was mistaken in her testimony, or forgetful so that she could not speak as to a matter, the defendants were not shut out from proving the fact, if material by other witnesses. It was material if this plaintiff, during the time that as she now claims she was the wife of Hynes and entitled and bound to bear his name, was entering into written contracts in another name, which was that of the wife or widow still unmarried of another The testimony offered tended to prove that; we think therefore that that objection was not good. The prior objection was in effect that Loader had not shown that he was acquainted with the signature of the plaintiff. Testimony as to handwriting is testimony of opinion. Any person acquainted with it may be permitted to give his opinion of it. The acquaintance need not come from having seen the person write. It may be formed from seeing writing under such circumstances as put it beyond doubt that it was a true signature. In this case the witness Loader had seen writing admitted by the plaintiff to be hers; thus he had seen her genuine handwriting. If the case was not so confined as that the correctness of the holding at the Circuit would hang upon whether the view of one piece of genuino handwriting would qualify one to speak as a witness as to tho genuineness of another and a disputed signature, we find authority to show that a holding rejecting the testimony would be incorrect. Hammond v. Varian, 51 N. Y. 398; Gawells v. Alexander, 4 Esp. Cas. 37. The competency of a witness is not determined by the degree of his knowledge. If he has had means of becoming acquainted with the handwriting in question, he is competent to speak, and the weight of his testimony is for the jury.

man.

The objection, however, was broader than that, and covered all the circumstances in which Loader had been placed with regard to this handwriting. It appeared that he was, by calling, a private detective,