
    [Sunbury,
    June 28th, 1824.]
    LODGE and another against PHIPHER and another.
    IN ERROR.
    After a paper has been read to the jury, and evidence given by the opposite side, of declarations of one of the parties to the suit, as to where it was found, that party cannot be examined to prove where the paper was found, in contradiction to his declarations.
    A witness, who, though a man of business and much conversant with writings, had never been employed in detecting fogeries, cannot be asked whether papers, proved tobe in the handwriting of a particular person,and a paper alledged to have been forged, were in his opinion in.the same handwriting.
    
      It seems, that such a question would not be proper, even to an expert in the examination of writings.
    On a writ of error to the Common Pleas of Northumberland county, it appeared that both parties to this ejectment claimed the land in dispute, under Reuben Haines, deceased.' The plaintiffs below, who were also plaintiffs in error, set up a parol contract between the said Reuben Haines and Jonathan Lodge, deceased, in proof of which they gave in evidence, a receipt from the said Reuben to the said Jonathan, in part payment for the land in dispute. The defendants asserted that this receipt was a forgery, and gave evidence of the declarations of Jonathan Lodge, one of the plaintiffs, as to the place where he found it. Upon this, Jonathan, Lodge was offered as a witness, to prove the place in which he found the receipt, in contradiction to the evidence of his declara» tions; The court rejected his testimony, and the plaintiffs except; ed to their opinion.
    For the purpose of proving, that the receipt subscribed with the name of Reuben Haines, had been forged by one William Shaw, deceased, the defendants produced several papers, which they proved were in Shaw’s handwriting. They then called Israel Pleasants, who stated, that he had been long in public offices, where they had a gi’eat variety of papers to examine, but not with a view to detect forgeries: That he was not much of an expert: That he was in an insurance office fourteen years: That ,he liad been in mercantile business twenty four or twenty five years: That he had had an extensive correspondence,and was accustomed to seoa great deal of different writing. The defendants’ counsel then proposed to ask Mr. Pleasants, as an expert, whether the receipt and the papers proved to have been written by Shaw, were in the same handwriting. The question was objected to by the counsel for the defendants, but the court permitted it to be put, and a bill of exceptions was tendered and sealed.
    
      Marr and Greenough, for the plaintiffs in error.
    1. The receipt had been given in evidence, and efforts had been made to throw suspicion upon it; to remove- which, by proof of a collateral fact, such as is usually proved by a party, the witness was called. An interested person is permitted to prove, to the court, a collateral fact, as, that certain blocks were the same which were cut from a certain tree. Lessee of Coxe v. Ewing, 4 Yeates, 439. A party may prove, that he has searched for a witness to a deed, and could not find- him. Lessee of Douglass v. Sanderson, 1 Yeates, 15. Davis v. Houston. 3 Yeates, 290.
    2. In admitting the testimony of Israel Pleasants, the court went further than had ever been done before in receiving evidence. The writing of one paper being proved, the jury may, it is true, compare the genuine writing with the paper in dispute; and an expert may be examined as to his opinion, whether a paper is written in a.natural oran imitated character, but not whether the same hand which wrote another paper, wrote that alleged to have been forged. The witness stated, that he was not expert in the business of detecting feigned hands, and the evidence offered, was merely that of a comparison of hands by an ordinary witness, which is inadmissible. 2 McNally’s Ev. .394, 418, 420. 1 Phil. Ev. 371, 372, 374. M( Corkle v. Binns, 5 Binn. 344. Rex v. Gator, 4 Esp. N. P. Gases, 117, 145.
    
      Grier and Bellas, for the. defendants in error.
    The rule is, that collateral matters may be proved by a party, to the court, in order to introduce other evidence. But the evidence here offered, was to the jury, to rebut evidencé which had been given of different statements made by the same witness at other times. (The counsel were told that they need not labour this point.)
    2. The decisions in England as to the proof of handwriting, have not been uniform. This court is unfettered by authority, and may therefore decide according to their own opinion. From the nature of the thing, all evidence of handwriting must be founded upon the opinion of the witness, drawn from comparison. Before he gives testimony, he must make a comparisonain his own mind, with some standard, and then give his opinion. A jury may compare writings, 11 Mass. Rep. 312; and men of business, accustomed to see a great variety of hands, are better qualified to judge of the genuineness of writings,- than juries generally are. The question is, whether the opinion of a person accustomed to the examination of writings, is evidence proper to be laid before a jury. Whether the witness was an expert, was matter for the court, and they have decided that he was. In 1 Chitty on Crim. Law, 506, 620, it is said, that the opinion of persons of art as to hand writing, is to be received. And in MíCorMc v. Binns, 5 Binn. 340, this court permitted the jury to infer, from a comparison of types, devices, &c. of two news papers, that both were printed by the same person.
   The opinion of the-court was delivered by

Tilghman, C. J.

The plaintiff is sometimes permitted to prove collateral matters, such as the loss of a paper, and the search that has been made for it. Evidence of this kind is generally given to the court, as a foundation for the introduction of secondary evidence. But here, the receipt had been read to the jury, and Lodge’s testimony was offered in chief, in contradiction to what had been sworn by one of the defendants’ witnesses. This is against all principle. There was none of that necessity, which in most cases, is the reason for admitting the testimony of a party to the suit. If the court, before the paper went to the jury, had required evidence of the place where it had been found, the plaintiff might have been examined, because, if he was the finder, he would have been the only person who could prove where it was found. But he was offered under different circumstances, and his testimony was properly rejected.

There was another exception taken by the counsel for plaintiffs. The defendants endeavoured to prove, that the receipt in the name of Reuben Haines, was forged by a certain William Shaw, deceased. For that purpose, they produced several papers, which they proved to be of Shaw’s writing, and then proposed to ask of their witness, Israel Pleasants, whether, in his opinion, the receipt, and the papers proved to have been written by Shaw, were of the same handwriting. The plaintiffs objected to this question, but the court pérmitted it. Mr. Pleasants had been a man of business, and for many years president of an insurance company in Philadelphia. The evidence was admitted, on the ground of his being an expert in the examination of writings. This was giving very great weight to matter of opinion — greater, ! think, than it is entitled to. The witness did not pretend to know any thing of the writing, either of Shaw or Haines. Evidence has been received in some counts, of the opinion of a man, (a clerk in the post office,) who had been for sometime employed in the business of detecting forgeries, whether a certain writing, shown to him, was in a natural or an imitated hand. This was going full far enough; and it has not been thought necessary, or safe, to go further. But even on the principle which led to the admission of the opinion of the clerk of the post office, Mr. Pleasants’ testimony ought to have been rejected, because, he declared, that though much conversant with writings, he had never been employed in the business of detecting forgeries, and consequently could not be supposed to have that acuteness which entitles one to the name of an expert. But supposing him to have been an expert, it is easier, in the nature of the thing,' to discover that writing is in an imitated hand, than to ascertain a forgery, by comparing the genuine writing of the person supposed to have written it, with the writing supposed be forged. In an imitated hand there is generally a stiffness, which a very acute observer may perhaps distinguish. But when a writing is forged, the forger will endeavour to conceal his natural hand, so that the difficulty of judging by comparison only, must be very great. Mr. Pleasants had no knowledge, nor did he pretend to form any opinion, but from the naked comparison of hands, and no authority has been shown for the admission of testimony under such circumstances. I am of opinion, therefore, that it ought not to have been admitted. The judgment is to be reversed, and a venire de novo awarded.

Duncan, J. gave no opinion, having been counsel for the defendants in error.

Judgment reversed, and a venire facias de novo awarded,  