Page:The Green Bag (1889–1914), Volume 17.pdf/189

 THE GREEN BAG "It is submitted that the proper solution of the problem is to be found, not in illogical decisions, but, as has already been suggested, in such constitutional or statutory limitations upon the exercise of the reserved power as will prevent unjust action by the legislature, and will protect the property and interests of stockholders, bondholders, and mortgagees. The constitution of every state in the Union should contain a reservation of the right to revoke, amend, or repeal charters, but attached to such reservation should be the provision, not less fundamental, that this reserved power should never be exercised in such manner as in the opinion of the judiciary would be un reasonable—that is, in such manner as would work injustice to corporators or to third persons under the facts in any particular case."

And if not, where shall one draw the line?" "Now, all evidence as to the identity of hand writing, except that of the person who saw the document written, is a mere matter of opinion; and the question at last is, Whose opinion shall be received in evidence and in what way the witness must be qualified to express it? One way, the one to which no objection is urged, the one most universally in use, whereby the witness has qualified him self to express an opinion, is by having seen the reputed author write, or having seen or received writings which the reputed author admitted or recognized as having been written by him." "The next step is by comparison of handwriting, and herein is the basis for the introduction of expert testimony. It is founded on a comparison between specimens of handwriting admitted as genuine and the CONVERSION (See Trover and Equity) one in dispute, and I can see no reason why it is not of equal or higher credit than the other kind." CORPORATIONS (See Constitutional Law) "Handwriting, even if artificial, is to some extent a reflex of the nervous organization of EQUITABLE CONVERSION A FURTHER instalment of Professor Lang- the writer. There is a distinctive charac teristic, which, being the reflex of the nervous dell's learned treatise on "Equitable Conver sion" is printed in the February Harvard Law organization, is more or less independent of the writer's will, and shows in his handwriting, Review (V. 18, p. 245). It is impossible to ad and the aid of one specially trained in dis equately summarize this important essay in covering the presence or the absence of these the space at our disposal. characteristics and the similarities or dis similarities, seems to me not only unobjection EVIDENCE (Expert Witnesses) able, but that to exclude it would justly bring on the law the reproach that it shuts its eyes A DEFENCE and criticism of the expert wit ness, along the lines of Mr. MacMurdy's article to the truth." reviewed in our January Number, entitled, Of the causes of the admitted evils of expert "The Expert Witness," by D. C. Westenhaver, testimony he says: is printed in the Albany Law Journal for "The reasons why the expert witness is so January (V. 67, p. 2) which is interesting in often merely a hired advocate, are, it seems to connection with Mr. Bancroft's suggestions in me, first, the unlimited freedom given to each his account of the Tucker trial in this issue. party to select and call, without limit as to The author believes there is necessity for this number, his own expert witnesses; second, the kind of testimony if we are to retain our jury absence of any regulation as to the amount of system. Of the handwriting experts he says: pay or the manner of making it." "The expert witness in matters of hand While admitting the scandal and reproach writing is the great bugbear to judges, lawyers that some witnesses have brought on expert and laymen. Indeed, able judges and thought testimony he doubts if they have seriously in ful lawyers have gone so far as to declare that terfered with the course of justice for "juries expert testimony in regard to matters of have much more sense and shrewdness than handwriting is not evidence at all in any proper those unfamiliar with trial practice are pre sense of the word and should not be laid before pared to believe." "In conclusion, it may not be amiss to call a jury. But, should it be excluded entirely?