ticity of handwriting is in question, the testimony of an expert upon the subject is admissible. The following may be stated to be the rules as to the value of testimony with regard to manuscripts, signatures, etc. I. The best evidence as to the writer of the manuscript, is the evidence of one who has seen him write. II. Second in value is the evidence of one who has carried on a correspondence with the person whose writing is in dispute. III. The third in value is that obtained by the comparison of handwritings, the testimony of the caligraphic expert. Let me, before proceeding farther in the discussion of this field of expert evidence, quote somewhat at length, from an anonymous article, that appeared in 2 Criminal Law Magazine, 139. "That a man's handwriting is anything but the product of his will is a proposition familiar enough. Thus, a man may will or wish to write a round copper-plate hand, or an angular foreign hand, without being able to do it. If a man could regulate his penmanship by his will, of course there would be the end of caligraphic experts. The forgery, which now and then is once successful, would travel on indefinitely, deceiving the very elect, instead, as the rule is, of depending for its success-if success it have at all— upon a single slip of the paying teller. But that he cannnot, imitate as skillfully as he will, divest himself of his own natural characteristic, has now come to be demonstrated. The accomplished expert has only to study his man. The hand of a writer is beyond the power of that writer's will or that writer's eye. The will is absorbed by the subject-matter. The eye watches the paper, keeps the hand running in lines, prevents the line gliding over the edge, etc. But once in motion the hand will acquire the nervous;motion which, as surely as it moves at all, writes down itself, its very self and no other. An effort to make a single letter would be an unusual movement, perhaps, for any but a writing master, but when rapidly advancing from letter to letter and from word to word, lifting itself slightly every instant to skip the place between the words, the hand will measure off from parts of letters to the next succeeding part and from one word to another until it is taken up, a sort of gauge, running like a machine, and, whether regular or uniformly irregular, this gauge will be not the least reliable feature of the characteristic." As to the introduction and reception of the testimony of a caligraphic expert, the rules that govern the testimony of an expert in any of the various branches as to which such testimony is admissible are to be applied. Once let it be settled that the case is of such a nature that the skill of one thoroughly versed in the science of caligraphy must be adduced before the average man can fairly decide as to its merits, then the testimony of an expert in the matter must be admitted. As to the qualifications of an expert the general rule again ap

reasoning upon which it is based is then entitled to the full weight usually accorded to the testimony of an expert in any of the other branches of the sciences, trades and arts. But on the question of expert testimony in the matter of handwritings there remains another point to be considered. A man may have become, through the course of events, an expert as to the handwriting of some one particular person. Thus, the genuineness of B's signature may be in question and the opinion of A, who has carried on a long correspondence with the supposed signer, is sought to be introduced. If A can satisfactorily establish the fact that he has received numerous letters which were signed by B and is familiar with B's signature by reason of having seen him write, then A, although not being a witness as to the fact of B's having executed the disputed signature, nor yet claiming for his testimony the weight accorded to that of a general caligraphic expert, becomes, as it were, a special expert as to this precise question and his testimony is undoubtedly admissible.

The Medical Expert.-There is probably no branch of expert testimony so frequently adduced as that represented by the medical expert. In point of time one of the first witnesses that was permitted to give testimony that was mere opinion and not based upon actual facts, his appearance has been growing more and more frequent until to-day scarcely a criminal trial of any importance is conducted without the presence of one or more experts skilled in the various branches of medical science. It is useless to regard this species of testimony with contempt, to impress upon juries that, because of the divergence of opinions evidenced by the experts called, the entire system is worthless, or, at its best, of little value. The practice of admitting medical expert testimony has practically grown up with the common law, and like the latter has varied with the time and customs of the country. As to the admission of the testimony of medical experts, Mr. Wharton24 says, "so jurisprudence does not say to a surgeon or physician called to testify whether a wound or a poison was fatal, 'you must have a particular diploma or belong to a particular professional school;' but it says, 'If you have become familiar with such laws of your profession as bear upon this issue, then you can testify how the issue is affected by such laws.'""25 This familiarity may be gained from study rather than from practice, 26 though it is clear that the knowledge is equally valuable if acquired from practice merely or from both practice and particular study. It must depend upon the particular state of facts as to whether the testimony of a physician is admissible. The following are a

24 1 Wharton's Ev. Sec. 441.

25 Livingston's Case, 14 Grat. 592; New Orleans

few of the many instances in which the testimony of the medical expert is admissible-the nature and effects of a disease.28 The likelihood that a certain disease would produce death.29 A surgeon may be permitted to prove the nature of a wound and its probable cause and effects.30 It is to be noted that in no case is a witness permitted to usurp the functions of the jury, although a witness may be asked his opinion upon a similar state of facts, hypothetically stated, an arrangement that in many cases amounts to practically the same thing.

32

The Hypothetical Question.-It is the usual rule that where an expert witness has no actual knowledge of the facts in the case, that the statement of facts already proved should be summed up in the form of a hypothetical case and the witness asked what would be his professional opinion on the subject-matter of his testimony, if such facts were actually true. But it must be noted that if the facts upon which the hypothesis is based fall, then the answer falls also.34 Nor can an expert be asked a hypothetical question upon facts not proven in the case. This, however, is not the rule in New York and in several other States. In those States the hypothetical question may be based upon any possible or probable range of the evidence in the case. But, as a rule, it is nowhere necessary that the hypothetical question should be based upon the exact reproduction of the evidence, or an accurate presentation of what has been proved; it will be sufficient if it be in accordance with any reasonable theory of the effect of the evidence.37 Where there is, however, absolutely no foundation in the case for the facts assumed, the hypothetical question based upon such facts is properly excluded.88 This hypothetical question, like almost every other element that constitutes a part of expert testimony, has been subjected, at times, to the most severe criticism and, perhaps, with some degree of justice. The wider the latitude permitted in propounding the question the more evil the result. That the admission of this species of question is not accompanied by certain undeniable merits will be readily admitted, but it must be acknowledged that it has certain marked disadvantages. Among the many minor questions involved in the discussion of the testimony of experts, and, more particularly, 28 In re Vananken, 10 N. J. Eq. 186.

29 State v. Smith, 32 Me. 329; Mathson v. Ry. Co., 35 N. Y. 487.

30 Rumsey v. People, 19 N. Y. 41; Com. v. Piper, 120 Mass. 186.

81 Rex v. Wright, Russ. & R. 456; Sills v. Brown, 9 Car. & Payne, 601.

of medical experts, is that of the right to demand compensation for testifying. It is clearly inequitable to class such men with the ordinary witness, the skill and labor which an expert is expected to employ involves an expenditure, of time, labor and preparation not expected of the witness who testifies to facts alone. There can be no doubt that, if the case be one of public nature, a witness might be compelled to give an opinion as an expert without compensation. But as to the ordinary class of cases the rule as laid down by Greenleaf on Evidence (Sec. 310, n. ) prevails. That author says, and his statement is supported by the weight of authority, "there is a distinction between a witness to facts, and a witness selected by a party to give his opinion on the subject with which he is peculiarly conversant, from his employment in life. The former is bound as a matter of public duty to testify as to facts within his knowledge, the latter is under no such obligation; and the party who selects him must pay him for his time before he will be compelled to testify.'*89 This rule also prevails in England." But the rule is by no means universal in the United States. In some States, as for example Rhode Island and Iowa2 the compensation of experts is provided for by statute, while in Indiana,43 an expert may be compelled to testify without extra compensation. Another question that is of no small importance arises as to the admission of scientific treatises and writings as evidence. It will be at once clear that books upon scientific subjects that yearly expand and become developed should not be admitted to prove the facts they set forth. This is otherwise in Iowa by statute, and the contrary practice prevails in several other States.46 It is true that an expert witness may cite authorities to show that the general consensus of opinion in his profession agrees with his testimony and may even refresh his memory by turning to standard authors in the domain of his specialty.47 But witnesses may never read extracts from such works as primary proof in their departments.48 Where a scientific witness has cited authorities to sustain his position it is generally permitted to put such works in evidence to discredit and contradict him. This is permitted in California under the code.

45

39 People v. Montgomery, 13 Abb. Pr. (N. S.) 207. Le Mere v. McHale, 30 Minn. 410.

40 Parkinson v. Atkinson, 31 L. J. C. P. (N. S.) 199; Turner v. Turner, 5 Jurist (N. S.), 839." 41 Stat. 1882, p. 733, Sec. 15.

42 40 Iowa, 646.

43 Rev. Stat. 1894, p. 175, Sec. 512.

44 Washburn v. Cuddihy, 8 Gray, 430: Com. v.

The Legal Expert.-The court of the place of trial will not, of itself, take cognizance of foreign laws. These must be offered and proved in evidence, and, though this may, as a rule, be accomplished by offering statutes under the seal of the foreign sovereign, or, as is customary in the United States, by presenting the statute laws of such foreign State in such a form as they are officially issued by that [States (the matter in these last two States, being provided for by statutes), nevertheless, it is the more general custom to prove foreign laws, whenever possible, by the testimony of experts.52 But a certificate of a foreign expert will never suffice. The witness himself must be examined under oath.53 In all other relations of their profession the testimony of lawyers, not necessarily experts, is admissible, for example as to the practice of the courts.54 But in order to render a witness competent to testify as to foreign law he must be either a professional man, or, at least hold some official situation which presupposes the knowledge of the laws of the country, as to which he is called upon to give an expert's testimony.5 This rule has been broadened in the United States, to include such persons, whom, as from the nature of their business, are likely to be acquainted with the laws of the foreign country in question.56 But the rule does not extend so as to include such persons as have derived their knowledge of the law in question from a mere course of study. A very broad rule prevails in New Hampshire and one not without a great deal of merit. In that State the court has laid it down as a rule that any person who appears to the court to be well informed as to foreign laws may give expert evidence thereon whether he be a professional lawyer or not.58 It is however, better to increase the qualifications necessary to admit a witness as an expert in the many broad fields of the law of foreign States and countries, rather than to decrease them. Since the court is presumed 'to be unacquainted with the subject in discussion it might prove rather a difficult task to discover whether the witness offered as an expert upon such an important topic was possessed of any higher legal attainments than an ability to convince the court that he was well informed. Where it becomes necessary to admit such testimony, it will be readily seen that its accuracy is all important, it were better then, by increasing the necessary qualifications, to re

51 Pease v. Peck, 18 How. (U. S.) 595; Mullen v. Morris, 2 Pa. St. 85; Stewart v. Swanzy, 23 Miss. 502; Pac. Gas Co. v. Wheelock, 85 N. Y. 278; Wilt v. Cutler, 38 Mich. 189.

HnhboPÉ 2 Cranch 197. Ennis V

duce the number of those fitted to present it and so insure a greater accuracy.

Experts in the Mechanical Sciences, Trades, etc. It is never necessary, to constitute a man an expert, that he should necessarily follow the trade, art, or profession relative to which his testimony is adduced, his competency or incompetency hinges alone upon the extent of his knowledge of such particular topic. So any person, familiar with a trade may testify as to the meaning of particular words or phrases used in such trade.59 There are no rules particular to these minor branches of expert testimony. The main question being, in such cases, “Is this case one in which expert testimony may properly be introduced?" or, that being answered, "is the witness an expert within the meaning of the term?" It then is only necessary to examine several of the more important heads under which these questions or either of them, have been raised.

Architects. After a witness has testified to facts showing that he has some knowledge of the cost or value of buildings, acquired as a dealer, builder or architect, his testimony as to the value of a building is competent. But it is never allowable to admit the testimony of an expert no matter how well qualified to prove the existence of a custom or usage merely,61 since a custom to be recognized in the law, must be sufficiently well known as to require no such proof.

Mechanics.-A machinist is always competent to give an opinion as an expert in relation to the construction of machinery.62 And he may even given evidence that a machine was not constructed in a workman-like manner without specifying the particulars in which the machine was defective.63

64

Insurance Experts.-If we leave out of consideration the professions, there are few branches of the subject of expert testimony that are of more importance than that represented by the insurance expert. Probably one of the most familiar, as well as one of the most important cases under this head is that of the Milwaukee & St. Paul Ry. Co. v. Kellog. In this case an exception was taken. because of the refusal of the lower court to permit the defendant to show by witnesses who were experts in the business of fire insurance, that, owing to the distance between a mill and a pile of lumber, the mill would not, in case of fire insurance, be considered in measuring the hazard of the lumber, or vice versa. Mr. Justice Strong, delivering his opinion of the court, said: "This exception is quite unsustainable. The subject of the proposed inquiry was a matter of common observation, upon which the lay or uneducated

speak their conclusions. In questions of science their opinions are received, for n such questions scientific men have superior knowledge, and generally think alike." But, in an action upon a policy of fire insurance providing against any increase of risk, the testimony of experts is competent upon the question as to the materiality of circumstances effecting the risk, especially where its determination calls for a degree of knowledge not likely to be possessed by an ordinary jury.65 In order, however, to make the testimony of an expert competent, it must be based upon facts and not upon mere conjecture. He is not, however, necessarily confined to his own observations but may give testimony upon a hypothetical statement of facts presented to him while upon the witness stand.66

Railroad Experts.-Another class of cases in which the testimony of the expert is frequently a necessity, is that arising from railroad accidents, and in such cases, where the' question involved is one requiring some peculiar knowledge of mechanics beyond that acquired by the average layman, the expert skilled in such lines is alone qualified to speak.67 Thus it is competent to show by an experienced engineer the rate of speed that is usually considered safe when an engine is running backward. And a person who has acted continuously for more than seven years as a railroad conductor has been permitted to give expert evidence as to the means of stopping railroad trains.69

Patent Experts.-Here, too, we find displayed the animosity that all too frequently marks the admission of the testimony of the expert.70 In In re Taggart, it is said: Good experts are especially valuable for the skill with which they assist their client and badger, befog, and bewilder the enemy. No wise judge would dare to put his trust implicitly in such witnesses; and, very frequently, the care which is necessary to unravel their sophistries, and avoid the influence of their obvious bias, would be much more profitably employed in an examination of the case without their aid." The rule as to "who is an expert" is, in this class of cases, very clearly defined. The patent act contemplates two classes of persons as peculiarly appropriate witnesses: 1. The practical mechanic to determine the sufficiency of the specifications as to the mode of constructing, compounding and using the patent. 2. Scientific and theoretic mechanics to determine whether the patented article is substantially new in its structure and mode of operation, or simply a mere change of equivalents, and this class Mr.

whether the modes of operation were new or old, were identical or the reverse." It must, however, be noted, and this fact is common to all classes of cases where it is sought to introduce the testimony of an expert, that the court cannot be compelled to receive an expert's testimony." As to the weight an expert's testimony is entitled to, the rule here is the same as in every other class of this kind of evidence. The knowledge of the witness, his fairness, the ability he evinces, his peculiar advantages for observation, study and research must all be weighed and considered, and upon them the value of his testimony in a court of law must rest.78 But the necessity for the admission of the testimony of an expert is one to be decided by the court n each particular instance.74 No rule can be authoritatively laid down to cover every case. The questions concerning expert testimony are of growing importance, little by little the necessity for its introduction has increased, step by step it has grown and developed. until to-day, when scarcely a murder trial of note comes before our tribunals without bringing in its train a small army of experts, representing the one side or the other, it has become impossible to listen, for the weeks that this kind of testimony frequently consumes and to pass it all by as "of little value," or "entitled to put little weight." It is much to be regretted that this kind of testimony should prove, in many cases, so entirely contradictory, and yet the matter is not irremediable. In his monograph upon experts and expert testimony, Mr. Moak says: "As to a remedy in a case where expert testimony is admissible, I can see none, except for counsel, and for the court to inform themselves as fully as possible upon the subject so as to be able to detect and to expose a false or a fallacious statement or conclusion;" and this is indeed the best, and the only remedy. Such preparation would sift down the number of supposed experts who, fearful of an exposure in open court, would hesitate to take the stand; whereas the true expert, confident in his own knowledge and skill, would take the severe test of the witness stand as a mere increase of his own reputation, and thereby doubly enhance his value as an expert witness. Newark, N. J. GORDON C. HAMILTON.

71 Allen v. Blunt, 3 Story, 742.

72 Winans v. N. Y. & Erie Co., 21 How. 88. 73 Johnson v. Root, 1 Fischer, 351; Morris v. Barret, 1 Fischer, 461.

74 Howard v. City of Providence, 6 R. I. 516.

the deed of the lot that the premises are to be used for "dwelling purposes only."

2. The provision in a deed of part of a tract in a residence portion of a city that the premises are to be used for dwelling purposes only will be enforced against one purchasing from the grantee with notice thereof, unless it is made clear beyond the possibility of a doubt that the remainder of the tract will not be damaged by its violation.

EMERY, V. C.: The object of this bill is to enforce certain restrictions in relation to the use of land which was conveyed by complainant, Mrs. Cornish, to defendant's grantor, one James R. Schmidt. The deed from complainant to Schmidt conveyed a lot of land in Bloomfield, Essex county, 50 feet front, on Broad street, by 150 feet deep, the conveyance containing the following clause at the end of the description: "The above premises to be used for dwelling house purposes only, with the necessary barn and outbuildings." This deed was dated September 20, 1895, and recorded September 25, 1895. On October 3, 1895, James R. Schmidt and wife, for an expressed consideration of one dollar, and, by deed of bargain and sale, conveyed the premises in question to the defendant Wiessman. In this deed the restrictive clause was omitted. Wiessman has put up a building on the premises, and the front part of the first floor of the building (being all of the front except a hallway) he uses for the purpose of a meat and vegetable market. The upper part of the building and the rear of the first story are used for the purposes of a dwelling by the defendant. A porch, with a wooden awning or roof, and supported by small pillars near the curb line, extends across the whole width of the building over the first story, and across the sidewalk. This porch is sometimes used for displaying or storing the meats. On receiving information of defendant's intention to use part of the building for this purpose, and before its erection, complainant filed her bill to restrain the use of the premises in violation of the restriction, and, upon filing the bill, applied for a preliminary injunction, but this was denied, and the rights of the parties reserved to be determined on final hearing. Pending the hearing, defendant, at his risk, proceeded with the erection of the building according to his plans, and is now carrying on a meat and vegetable market on the first floor of the building, and claims the right to do so notwithstanding the restriction in the deed to Schmidt, his grantor. It is not claimed that he is not chargeable with notice of the restriction in Schmidt's deed, for it is conceded that under the doctrine settled in Brewer v. Marshall, 19 N. J. Eq. 537, and Hayes v. Railroad Co. (1893, McGill, Ch.), 51 N. J. Eq. 345, 349, 27 Atl. Rep. 648, the defendant is chargeable with constructive notice of the restriction in the Schmidt deed, which was one of his muniments of title. Upon the question of notice, moreover, I am satisfied from the evidence in this case that the defendant,

before taking his deed from Schmidt, had actual notice of this restriction in Schmidt's own deed. The general rule in this State in relation to the enforcement of restrictions of this character is thus stated by Chancellor McGill in Hayes v. Railroad Co., 51 N. J. Eq. 348, 27 Atl. Rep. 649: "It is settled by adjudication in this State, as a general rule, that where a grantor, retaining a portion of the land out of which the grant is made, enters into an express written understanding with his grantee, whatever may be its form, whether covenant, condition, reservation, or exception, which restricts the enjoyment of the portion of the land which is conveyed, in order to benefit the portion retained, and the restriction is reasonable and consonant with public policy, whether it runs with the land, and is binding at law, or not, it will be enforced in equity against the grantee and any one subsequently acquiring title to the land with notice of it, at the instance of the grantor or subsequent owner or owners of parts of the remaining land, when its violation results in material detriment to the portion of the remaining land, which the complainant in the suit holds." The lot sold to Schmidt was part of a tract containing over three acres, owned by the complainant. Complainant's residence was near the center of the tract, and the whole tract is situated in the residential part of the town of Bloomfield, and is well adapted for residence purposes. There were but few places of business of any kind in the neighborhood, and the restriction was one which, in view of the situation of the remaining tract, it was within the right of the complainant to impose as a reasonable re-. striction, so that the sole question now is whether she is entitled to have it specifically enforced against the defendant, who purchased with notice.

The defendant' counsel oppose the relief prayed for on two grounds: First, and mainly, because, as he asserts, the building is in fact defendant's dwelling house, and the use of a portion of it as a meat and vegetable store does not violate the covenant. Counsel insist that the house still continues to be a dwelling house, although a portion may be used for a store or market, and treats the case as if the question under the covenant was whether this building may still be considered as legally a dwelling house, although some portion ot it is used for a store or market. Even if the question arose in this shape, I should be inclined to say that, considering the object of the restriction, the building, part of which is occupied as a store, could not be called a dwelling house only. One plain object of such a covenant is to distinguish between the use for dwelling house or residence and the use for purposes of trade. But the covenant in this case reaches directly to the use of the building or any part of it. It is that the premises are to be used for "dwelling house purposes only." As it seems to me, it is impossible to say that a "store" or "market" use or purpose is a dwelling house