souri, and New York prior to legislative enactment already noted,2 and North Carolina.3

(3) According to the third theory, experts are permitted to express an opinion, based not merely on a comparison of writings conceded to be genuine, but on writings, the genuineness of which has been proved on the trial for the express purpose of comparison. Such testimony has been received in Connecticut, Maine, Massachusetts, Mississippi, New Hampshire, and Ohio.9 California (§ 1944 Code Civ. Pro.)

§ 300. Effect and Value of Expert Testimony. - The jury are to judge of the weight of expert testimony, and by applying the same tests as in the case of ordinary witnesses.10 In

1 Corby v. Weddle, 57 Mo. 452; State v. Clinton, 67 Mo. 380; State v. Tompkins, 71 Mo. 616; Pourcelly . Lewis, 8 Mo. App. 593.

2 Dubois v. Baker, 30 N. Y. 355. 3 Yates v. Yates, 76 N. C. 142; McLeod v. Bullard, 84 N. C. 515.

Tyler v. Todd, 36 Conn. 222; Lyon r. Lyman, 9 Conn. 59, 60.

5 Sweetserv. Lowell, 33 Me. 446; Woodman v. Dana, 52 Me. 9; Page v. Homans, 14 Mc. 478.

6 Moody v. Rowell, 17 Pick. 490; Richardson v. Newcomb, 21 Pick. 315; King v. Donahue, 110 Mass. 155, 156; Martin e. Wallis, 11 Mass. 309, 312; Martin e. Maguire, 7 Gray, 177. 7 Wilson v. Beauchamp, 50 Miss.

24.

8 State v. Hastings, 53 N. H. 452. 9 Pavey v. Pavey, 30 Ohio St. 600; Bragg . Colwell, 19 Ohio St. 412; Calkins r. State, 14 Ohio St. 222; Hicks r. Person, 19 Ohio, 426.

As to the objections which may be raised to the introduction of specimens of writing not admitted to be genuine, or in the case for some other purpose, the Supreme Court of Kansas say: "The principal, if not the only, objections urged against this kind of evidence are as follows: 1st. The writings offered in evidence as specimens, may be manufactured for the occasion. 2d. Fraud may be practised in the selection of the writings. 3d. The other party may be surprised; he may not know what

documents are to be produced, and therefore he may not be prepared to meet the inferences sought to be drawn from them. 4th. The handwriting of a person may be changed by age, health, habits, state of mind, position, haste, penmanship, and writing materials. 5th. The genuineness of the specimens of handwriting offered in evidence may be contested, and others successively introduced, to the infinite multiplication of collateral issues, and the subversion of justice. 6th. Juries are too illiterate, and are not competent to judge of this kind of evidence." Macomber v. Scott, 10 Kan. 339.

10 Carter v. Baker, 1 Sawy. (U. S.) 512; Mitchell v. State, 58 Ala. 418; Tatum . Mohr, 21 Ark. 354; Forgery v. First Nat. Bank, 66 Ind. 123; Johnson v. Thompson, 72 Ind. 167; State r. Secrist, 80 N. C. 450; Parnell v. Com., 86 Pa. St. 260; Howard r. Providence, 6 R. I. 516; Pratt v. Rawson, 40 Vt. 183.

"There is no rule of law that requires jurors to surrender their judg ments implicitly to, or even to give a controlling influence to the opiniors of scientific witnesses, however learned or accomplished they may be, and however they may speak with conceded intelligence and authority, aided by the accumulated results of a long experience." Brehm v. Gt. Western R. R. Co. 34 Barb. (N. Y.) 256, 272.

speaking of this kind of testimony the Supreme Court of Kansas say: "It must have its legitimate influence by enlightening, convincing, and governing the judgment of the jury, and must be of such a character as to outweigh, by its intrinsic force and probability, all conflicting testimony. The jury cannot be required by the court to accept, as matter of law, the conclusions of the witnesses instead of their own." They may exercise their own independent judg ment.? The value of this sort of testimony must in the nature of things depend very much upon the peculiar circumstances of the particular case, and of these the jury are the judges. The court, in charging them, may comment upon the evidence given, if in so doing the jury are left to the guidance of their own convictions.3 The evidence of experts, being merely the expression of opinions, is always exposed to a reasonable degree of suspicion. They are apt to be biassed

1 Anthony v. Stinson, 4 Kan. 221. 2 Head v. Hargrave, 14 Cent. L. J. 388, 389; s. c., 105 U. S. 45, where Mr. Justice Field thus lays down the law upon this subject: "It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services. To direct them to find the value of the services from the testimony of the experts alone, was to say to them that the issue should be determined by the opinions of the attorneys, and not by the exercise of their own judgment of the facts on which those opinions were given. The evidence of experts as to the value of professional services does not differ, in principle, from such evidence as to the value of labor in other departments of business, or as to the value of property. So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence, in determining the weight to be given to the opinions expressed; and it was

only in that way that they could arrive at a just conclusion. While they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and, to act intelligently, they must judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry. If, for example, the question were as to the damages sustained by a plaintiff from a fracture of his leg by the carelessness of a defendant, the jury would ill perform their duty, and probably come to a wrong conclusion, if controlled by the testimony of the surgeons, not merely as to the injury inflicted, but as to the damages sustained, they should ignore their own knowledge and experience of the value of a sound limb.

.. They should not have been instructed to accept the conclusions of the professional witnesses in place of their own, however much that testimony may have been entitled to consideration. The judgment of witnesses, as a matter of law, is in no case to be substituted for that of the jurors."

in favor of the party calling them, and their evidence should be received by the jury with caution, and subjected to careful scrutiny. An instruction to such effect is not improper.1

PART V.

ATTENDANCE AND COMPENSATION.