Rouch v. Zehring

The opinion of the court was delivered, June 1st 1868, by

Sharswood, J.

This was an action of debt on a single bill against the defendants as the executors of the last will and testament 'of Jacob Zehring, deceased. The only plea was non est factum.

The 1st assignment of error is to the admission in evidence of the will of Jacob Zehring. It was not stated for what purpose the will was offered by the defendants. It showed that they were the executors, which, however, they had already admitted of record by their plea: Hantz v. Sealy, 6 Binn. 410. To say the least, the will at the time it was offered was wholly irrelevant to the issue. If the object was to put in evidence declarations contained in it bearing on the question of the single bill in suit, such evidence was clearly incompetent. If the purpose was to rebut the presumption of a gift by showing that the plaintiff had been fully provided for, the will contained no such provision. It averred a fact as a reason for not making provision for her. Whether this were or were not so may have been material, but it could not be proved by the mere declarations of the obligor. If the evidence was improper when offered, the error is not cured by the plaintiff’s having given testimony to rebut it or avoid its effect. A party ought not to be prejudiced by an attempt to parry what has been illegally admitted against him. We are of opinion that there was error in the admission of the will of Jacob Zehring.

The 2d assignment of error is to a part of-the testimony of Henry Seiders. It was proposed to ask him, if from what he saw and heard detailed the deceased was in his opinion competent to transact business. Heard detailed — by whom ? If the witness had been an expert he could not state an opinion founded upon what he had heard out of court. In the case of a witness not an expert, he must give facts and circumstances within his own knowledge as the grounds of his opinion: Rambler v. Tryon, 7 S. & R. 90; Bricker v. Lightner’s Executors, 4 Wright 205; Aiman v. Stout, 6 Wright 114; Dunham’s Appeal, 27 Conn. 198. As to experts, their opinions must either be predicated of the facts proved or admitted: Champ v. The Commonwealth, 2 Metc. (Ky.) 17; or of such as appear in evidence, hypothetically stated: Spear v. Richardson, 37 New Hamp. 23; State v. Windsor, 5 Harring. 512. One not an expert cannot so testify: Dunham’s Appeal, 27 Conn. 192; 1 Greenl. on Ev. 440, n. We think there was error, therefore, in this admission.

The 3d error assigned relates to the evidence of Henry Chubb. He was offered to testify to declarations by Jacob Zehring the spring before he died, shortly after the execution of the note in suit, that he had not signed it. This was not a fact in dispute. The testimony was admitted not to disprove the execution of the instrument, but to show want of memory and understanding about what had been done. In this point of view we cannot say that it was inadmissible. Upon such a question a wide scope must of necessity be allowed, that tbe jury may possess tbe materials from wbicb to form an intelligent judgment.

Tbe remaining assignments of error are to expressions of opinion by tbe judge below in bis charge on the weight of the evidence. He had a right to express his views, provided he did not intrude on the province of the jury. There is language which the plaintiffs in error consider as declaring certain facts to have been proved, but it is susceptible of another construction. At-the close of the charge the question of fact upon the whole evidence is submitted to the jury. Any complaint on this score had, however, better be avoided on another trial.

Judgment reversed, and a venire facias de novo awarded.