The opinion of the court was delivered by
Smith, J.
The defendants in error, who were plaintiffs below, brought an action of assumpsit, for money had'and received, against the plaintiffs in error. The cause was tried on the pleas of nonassumpsit, and payment with leave to-give the special matters in evidence. On the trial, various bills of exceptions were taken by the defendants, to the admission and rejection of testimony, and to the charge of the court. It became necessary to decide whether a certain paper, purporting to be a check, on the office of discount and deposit for two thousand five hundred dollars, dated the 22d of March, 1819, signed “Samuel Jacobs,” payable to himself or bearer, and which was actually paid at the office, was a genuine check or not. The defendants in error alleged that this paper was a forgery, and to prove their allegation, it was necessary to establish its identity; or, in other words, that the paper offered in evidence was the same which was received and paid in bank. Mr. Ogilby, cashier of the bank, declares that the bank paid the check to a little boy, on the 29th March, 1819. Op Thursday, the 25th of March, 1819, in the afternoon, Samuel Jacobs was violently attacked with á cramp in his stomach, took to his room, and did not [179]*179leave it, until he was a corpse — he died on the 14th of April, 1819. On the 5th of June following, William Coleman, one of the executors of Samuel Jacobs, deceased, took his bank-book to the bank to .ascertain the balance due him; the cashier settled the book, and returned it to him, together with this and other checks. "These checks were afterwards given to Jacob M. Haldeman, and ■by him to others. After the plaintiffs had proved, by Mr. Ogilby the cashier, Samuel Jacobs’ hank-book, the various entries of credits in it, (enumerated all in the state of the case,) the settlement made in it on the 5th of June, 1819, and that he, the cashier, presumed the checks produced to be the same checks he had given up to William Coleman, that he knew nothing to the contrary, but believed the checks to be the same, and that he had filled up the one of the 1st of March, 1819, for two thousand dollars, at the counter of the bank — they offered to read to the jury the above stated entries in the bank-book and the checks aforesaid. To this offer, so far as respected the reading of the checks to the jury, the defendant’s counsel objected. The court overruled the objection, and permitted the whole to be read — and this forms the first bill of exceptions. It is contended, that the papers admitted, had not been sufficiently identified, that the question was whether the check was a forged one or not, and that therefore it could not be read to the jury, unless all. were called in whose hands it had been, nor unless the witness had marked the check before he had parted with it. It is true the question was whether the check was forged, but that question was for the jury, and therefore the evidence offered was clearly admissible to establish the point of indentity, which was involved in it. Whether it was satisfactory and sufficient for'that purpose, it was for the jury to decide; but being relevant, the court could not do otherwise than refer it to. them, with the check, in order that they might exercise their judgments upon that point, as well as upon the principal' question. We are of opinion, that the evidence was sufficient to entitle the plaintiffs to read the checks to the jury. After the plaintiff’s had read to the jury, the several checks, six in number, including the check alleged to have been forged; and had proved by John Forster, that he had seen Samuel Jacobs write frequently — draw checks in bank; that from the opportunity which had been given to him to examine this check, (having looked again at all the six checks,) he believed no part of it to be in the hand-writing of Samuel Jacobs, and also, that he had been in. the habit of corresponding for many years with him on business — and had proved by Henry Alward, that he had seen the late Samuel Jacobs write, and that from the knowledge he had of his hand-writing, and taking every part of the [180]*180check, he would say it was not his hand, and taking the whole check as it appeared,' date, filling up, and signature, he would say it was not his hand-writing — and had proved by Joseph Wallace, that he had often seen Samuel Jacobs write, had dealt with him during the years 1812, 1813 and 1814, and received many letters from him, and seen him sign receipts for money paid, and that from his knowledge of the hand-writing of Samuel Jacobs, (and after looking at the check of 22d of March, 1819,) taking the whole of it together, he believed it not genuine; the plaintiffs offered to ask Mr. Forster, “ from your knowledge of the hand-writing of Samuel Jacobs, and from comparing the check of March 22d, 1819, with those parts of the check of January 20th, January 21st, February 4th, March the 1st, and March 21st, 1819, which you have stated to be in his hand-writing, what is your opinion and belief as to the signature and body of the check of March 22d, 1819, being in the hand-writing of Samuel Jacobs.” To the offer so made, the defendant’s counsel objected, but the court allowed the question to be put, and this on the second bill of exceptions, is assigned for error. The question was properly allowed to be asked, according to the opinion of this court, in the case of the Farmers’ Bank of Lancaster v. Whitehill, 10 Serg. & Rawle, 110, in which it was decided, that comparison of hand-writing was admissible in evidence in civil cases, where it was in corroboration of other evidence, which tended strongly to support the fact in dispute. Three witnesses, Mr. Forster being one, had declared the check not to be the hand-writing of Samuel Jacobs; the proposed offer was not to establish solely from comparison of hands, that the check was a forgery, but in confirmation of other testimony already received, strongly tending to the same point, to show that the signature and body of the check of the 22d March, 1819, was not the hand-writing of Samuel Jacobs. Under such circumstances then, I apprehend, it was competent evidence to go to the jury, and after the opinion and belief of the witness was known,- for him to compare the contested signature with other writings admitted to be genuine. It would seem to me, that where a witness has seen the person write, and declares he knows his writing, he may compare it with writings, which he has seen the person write, or which are admitted he wrote, and he may give his opinion and belief on the comparison, at least such testimony, may go to the jury, who, and they only, are to compare and decide whether the witness is correct or not as to the writing in controversy. The court * below then were right in permitting the question to be asked.
I come to the third bill of exceptions. After the court had allowed the check to be thus compared with other genuine checks, [181]*181.and the jury to hear the opinion and belief of Mr. Forster in rela- ' tion to it, the counsel for the plaintiffs proposed to go a step further, and to prove “ that John Eberman is, and has been cashier of the Farmer’s Bank of Lancaster for twelve years — that William White was cashier of the Lancaster Bank for seven years, prior to October, 1824 — that John Schmidt is, and has been cashier of the York Bank for ten years; and that the said Eberman, White and Schmidt are, and have been, for the said number, of years, experienced and skilled in the examination of bank notes, checks and other writings, with a view, and for the purpose of detecting forgeries, and that in their opinion and belief, the part of the check of March 22d, 1819, which is in writing, is written in an imitated •character or traced hand.” And this the court admitted them to prove, though objected to by the defendant’s counsel. It was, in fact, permitting experts, as they are called, who never saw Mr. Jacobs write, from their professed knowledge or skill in hand-writing, to prove solely, from comparison, whether what purported to be ■the hand-writing of Mr. Jacobs in the disputed check was counterfeit or not. This cannot lawfully be done. It would have been •error had the witnesses actually proved what was proposed to be proved by them. This opinion is fortified by the decision in Lodge and another v. Phipher and Lloyd, 11 Serg, & Rawle, 333. The question there was, whether a receipt in the name of Reuben Haines was forged or not; it was alleged to have been forged by a certain William Shaw, deceased. The court below permitted Israel Pleasants, on the ground of his being an expert in the examination of writings, to give his opinion, whether the receipt, and the papers proved to have been written by Shaw, were the same hand-writing. This, says the late Chief Justice, was giving very great weighty to matter of opinion, greater, I think, than it was entitled to, for Pleasants did not pretend to know any thing of the hand-writing*of Haines or Shaw, nor did he form any opinion, but from the naked comparison of hands. The judgment was therefore reversed. The case under consideration, up to the timé of' this offer, had been placed before the jury on the evidence of those who could legally give some direct testimony, and on legal proof by comparison of this check with the others. But if witnesses were to be called in, and asked'on oath, what conclusions they would draw, it would, in fact, be adding so many men to the jury, in other words,'it would be permitting others to advise the jury what verdict they should render; it would not be trying the cause by twelve men returned by the sheriff drawn and sworn, but by them, together with as many others, as a party could find, who would swear that the evidence was or was not satisfactory to their minds. It appears, however, that when the witnesses were examined, they could not, and did [182]*182not prove what was proposed; for Eberman testified, that from the appearance of the check, he would not say that it was imitated; and Schmidt that he would not undertake to say, whether it was a fair or á traced hand. White was not called. So that it is evident the defendants suffered no injury from this decision of the District Court. Now in Allen v. Rostain, 11 Serg. & Rawle, 362. It is said to be a general and well known principle, that one shall not assign that for error,, from which he has suffered no injury, for the administration of justice is not promoted by reversing a judgmént for an error by which no injury has been sustained. However improper, therefore, the proposed testimony would have been, yet not being given, the opinion of the court below, as to its admissibility, -cannot foe assigned for error; nor can the judgment on this ground foe reversed.
As t® the error assigned in the fourth bill of exceptions; the plaintiffs offered to prove on' the trial the actual state of the check of the 21st of March, 1819, in the beginning of the year 1824— that at that time, in the word “March,” the letter “h” had a singular turn at the end of it, that it was then touched with a penknife to ascertain whether it was. ink or some other substance which adhered to it, and on this touch it came off, the mark of which being still visible on the paper; and that .the said mark was precisely similar to the mark at the end of the “h” in the word “ March,” on the check of the 22d of March, 1819, for two thousand dollars. In the admission of this proof I cannot perceive any error. These circumstances conduced to establish the forgery, and were therefore properly laid before the jury.
The fifth error assigned demands only a passing remark. The plaintiffs having given proof of Mr. Jacobs’ money concerns and payments, that he was a man of great accuracy in regard to his money, both as to receiving and paying it out, and that no traces could be found of having paid away this money, offered to prove by Christian Brubaker, that in the winter or spring of 1819, as executor of one Keyser, he sold a plantation to Samuel Jacobs for four thousand dollars, payable on the 1st of April, 1819, that the witness wanted money to loan to his brother, and went to Mr. Jacobs, and received, in advance, one thousand dollars, on the 22d of March, 1819, by a check on the same bank at Lancaster, offered to be shown, and erroneously dated the 21st of March, 1819; that soon after that Mr. Jacobs took sick, and witness never saw him again; that witness went to his house, on the 1st of April, 1819, but found him so sick that he did not see him, nor ask to see him, that the balance of the money due the witness was paid in cash by William Coleman after Mr. Jacobs’ death.” Why this was objected to, I am at a loss to conceive. It was evidence, even if it [183]*183weighed but a feather, in the cause; when, however,-it is considered, that it was known Mr. Jacobs had bought from Christian Brubaker land for four .thousand dollars, to be paid on the 1st of April, 1819, and that he had actually paid him in advance one thousand dollars, on the 22d of March, by a check on the-same bank, it was reasonable to suppose in the absence of proof to the contrary, that he drew the check! of the 22d of. March, 1819, for two thousand five hundred dollars, for the balance of Brubaker's claim, or in order to be prepared to pay him the residue of the four thousand dollars on the 1st of April following, according to their contract, and that; therefore, the money might have been drawn by himself for-this purpose. Now to do away all idea of the kind, the plaintiffs offered to prove, that the balance of the purchase. money was not paid by Mr. Jacobs, but by Mr. William Coleman, after Mr. Jacobs’ death, and that although Mr.. Brubaker had called at the office of Mr. Jacobs for it, on the 1st of April, .yet he did not then receive it, on account of Mr. Jacobs' sickness, and consequent inability to transact business. Viewing the testimony in this light, I think it was correctly admitted.'
The sixth error has, I think, been abandoned, If not, as it is a mere repetition of all the previous alleged errors, on which the court had passed their opinion, and brings up no new matter, it need not again be considered.
I proceed then to the consideration of the seventh error. After the plaintiffs had rested their cause, the defendants, on their part, proved by Joseph Ogilby', that on the 29th March, 1819, a check, (the one in question,) drawn by Samuel Jacobs, dated the 22d of March, 1819, payable to-himself or bearer, for two thousand five hundred dollars, was presented by a boy, and paid by Mr. Ogilby to him at the bank; and that on the 5th of June following, William Coleman brought Mr. Jacobs' bank-book to the bank, and had the balance due to him struck, or settled by Mr. Ogilby, who returned Mr. Coleman the checks set down in it; that on the 2d of July next after, Mr. Coleman brought the bank-book and checks to the bank, and told.Mr. Ogilby some of Mr. Jacobs' heirs doubted the check of two thousand five hundred dollars, and thought it- not genuine, that he thereupon examined it carefully, thought it was Mr. Jacobs' hand-writing, and still thought so; that Mr. Coleman was of the same opinion, and said the heirs wished him to bring suit against the bank, to recover the money, but that he would not do it, unless they could produce some proof to him; — rthat Mr. Coleman took the book and .checks and w«nt away — that on the same 2d of July, the balance to the credit of Samuel Jacobs was two thousand five hundred and eighty-seven dollars and sixty-nine cents, that on that day tliey settled the book, and transferred the. balance to the [184]*184account of William and James Coleman, as executors of Samuel Jacobs, deceased. The defendants also gave in evidence the correspondence between Thomas Elder, on behalf of the heirs, and the officers of the bank, commencing on the 20th of February, and ending on the 25th of July, 1821; and then offered, after the evidence already stated, the inventory, exhibited on the 22d of May, 1819, by William and James Coleman, executors of Samuel Jacobs,. deceased, to the Register of the county of Lebanon, and also the administration account of the same executors, exhibited the 1st of December, 1820, and finally passed and confirmed on the 3d of January, 1821, and in connection with them a receipt and acquittance from Jacob M. Haldeman and Richard T. Jacobs, administrators de bonis non, then appointed, bearing date the 3d of January, 1821, the said receipt and acquittance having been given by the said administrators be bonis non to the aforesaid executors, as appeared by the same papera; to all which the plain tills counsel objected, and were sustained in their objection by the court, who overruled the said' testimony thus offered. The defendants in error contend, that these- papers, being wholly irrelevant to the matter in issue, and only calculated to embarrass the cause, the court were right in rejecting them. In this I agree with them, for neither to the court below, nor to this court has any the least relevancy been shown. It cannot be pretended, that any of the papers show on their face, that the two thousand five hundred dollars were included, or mentioned in them, nor can any thing, relative to the bank, or this money be shown from the most minute examination of them. The plaintiffs in error, admit themselves, that the two thousand five hundred dollars, were not included in the inventory, administration account, or receipt, as their whole defence was rested on the ground that William Coleman, the executor did not receive the two thousand five hundred dollars from the bank, but allowed that sum to the bank on the settlement of the bank-book on the 5th of June, 1819. Again the third and fifth points put to the court by the plaintiffs in error aver distinctly, that the two thousand five hundred dollars were not received by William Coleman, and the fifth point says, that the money “ was voluntarily settled for and paid by the executors, of Samuel Jacobs, deceased, to the present defendants.” How then, on the defendants own grounds, could the- two thousand five hundred dollars have been included in the inventory, administration account, or receipt? The receipt is merely a receipt for so much as was in the executor’s hands. If it be said, that these papers were evidence to show that the executors had settled an account of some kind, my answer is, that this was shown fully, and admitted by the plaintiffs below, by the*letters of administration de bonis non, given in evidence by [185]*185them, The recitals in those letters of administration - must be taken to be true, and show that the executors had settled an account that this account had bee?i approved by the proper court, and that they had been duly, dismissed. And this appears fully front the fourth point put by the defendants below to the court. Indeed the answer of the court to the defendant’s .fourth point, is a complete answer to the 7th hill of exceptions, about the rejection of these papers. The court in'their answer say, “That the recitals, in the letters of administration de bonis non, given in evidence by the plaintiffs, must be taken to.be true. They show that before the granting of them, the executors had settled their account, as stated in this point. The presumption of law is, .that the account so settled by the executors, contained a full and perfect account of all the assets of the deceased, which had come to their hands.at the time' they were- discharged from their trust; and that it was duly settled and approved by the proper authority. Whether the settling of the administration account by . the executors, as stated in this point, was an administration of the part of the. assets of the deceased now in question in this suit, depends on .the fact whether ■the two thousand five hundred dollars mentioned in the check in question, had previously to that time come to tfie.hands of the executors. If they had received the money in question from the bank, the plaintiffs could not recover in this suit, whether .they charged -themselves with it in their administration account or not. If they charged themselves with it in iheir administration account settled by them, they have administered on it, and the plaintiffs cannot recover, whether they have received, it. of the bank or not. If they neither received it from .the bank, nor charged themselves with it in their account, then the settling of an account, as mentioned in this point, would not bé an administration on this part of the assets of the deceased, and the plaintiffs are not, 'on that account, prevented from recovering.” The acknowleged ground of defence, both in the court below, and in this court, shows that these papers could not' have been in any way material or relevant, and therefore, there- was no error hi rejecting them.
A word as to the eighth bill of exceptions will suffice. The defendants had' proved by Mr. Ogilby, that the check of two thousand five hundred dollars had been, paid by him to a boy or young lad — the plaintiffs offered, (and as I understand it, in order to show that Mr. Ogilby was, or might be mistaken, in his recollection as to this,) to prove that Christian Brubaker■ gave his check for one thousand dollars, dated, (though erroneously,) the 21st of March, instead of the 22d of March, 1819, to his son, Benjamin Brubaker, who came to Lancaster to draw the money sometime the latter end of March or beginning of April, 1819, and when he came to Lan - [186]*186caster, he thought there might be some difficulty in getting the money at bank, and therefore went to Ober fy Kline!$ store, and requested Mr. Mine to' send a boy, (then about twelve or fourteen years of age,) to the bank for the money, who returned in a few minutes with the one thousand dollars, the amount of the check. As thp evidence was intended to sliow a mistake in the recollection @f Mr. Ogilby,t or to correct the. mistake, if any, it was properly offered; nor was there any error in receiving it for-that purpose. •
Having thus disposed of all the errors assigned respecting the admission and rejection of evidence, I, will proceed to consider the ■errors-assigned in' the answers.of the court to the points-proposed h)1- the counsel for the< defendants. These were nine in number, and the court were requested’ to reduce their answers to writing and file them of record. This the court did, and in my opitiion, answered fully and very satisfactorily, each and every point. The first,, second and third points, all relate to one subject, to wit), on-whom the settlement of the. estate of persons dying testate or intestate devolves, and also whether an administrator de bonis non, is confined to the administration of that portion of the estate which was left unadministered by his predecessors. The court below-answered that the settlement of such estates belongs to,,and devolves on the executors, and the administrator de1 bonis non,, is confined to. the estate unadministered by them. I subscribe .'entirely to the correctness of the answers of these three points. If an executor settles an account between the .decedent and a third person, and then introduces it into his administration account, the administrator de bonis non has nothing to do w;ith the transaction, because,, the executor having once received' a credit' for it, '(or if he he charged with it,) it is to be considered'as belonging to that portion of the estate which has been administered by him; but if on the other hand, the executor has omitted to make such settlement, or left it out of his administration account for any. cause, then the-other may, indeed must, proceed to collect or pay, in other words, administer the claim or demand. If William Coleman and his co-executor administered the two thousand five hundred dollars, then the administrators, de bonis non, could not interfere with, nor touch the matter.. And so, I understand, the court below stated the law to the jury; at the same time leaving the facts arising on the evidence on these points, entirely to the decision of' the jury. In this there was no error. '
In considering the Seventh bill of exceptions I have already said, that the answer of the court to the fourth point was correct, and it was therefore only necessary to declare, that there is no cause for reversing the judgment on this ground.
The answer of the court to the fifth point was correct. It is . [187]*187true where money is paid to one, without fraud or unfair practices, the party who receives it, may in good faith and conscience retain it, although he could not have recovered it by law. The law is so-laid down in innumerable cases; but here there was no such payment to the bank as has been stated, in considering the seventh bill of exceptions. The bank could not enforce against Mr. Jacobs the payment of this check, and as it was not actually paid to the bank, nor according to the opinion of the jury, who had to decide the fact, allowed in any settlement, to the bank, I think the bank cannot, in equity and good conscience, retain the money, and that this case does not come within the decisions cited by the counsel for the plaintiffs In error.
The sixth, seventh and eighth answers have been considered and declared not to be erroneous. They need not again be considered. This then disposes of all objections made to the charge of the court. One more error remains to be adverted to. It is contended that there is a misjoinder of counts in the declaration filed in the cause, and that the general verdict rendered thereon is, therefore, erroneous. The first count lays the indebtedness to the testator Samuel Jacobs, and a promise to him, in his life-time, to pay him the sum of money. The second count lays the indebtedness to the administrators, and the promise to the administrators to pay them, &c. There is a general judgment on both counts. I should not be disposed to reverse the judgment on this ground, after a full and fair trial on the merits, unless it were clearly required by some principle of undoubted applicability; but there is no such principle; on the contrary, this court, in the case of Stevens v. Gregg’s Administratrix, 10 Serg. & Rawle, 234, has in fact, decided that counts like these may be joined, and has given the true guide in the following plain and intelligible direction, that “ wherever the funds to which the money and the costs are to be applied, or out of which the costs are to be paid are the same, and the money when recovered, would be assets, then the counts may be joined.” See 16 Serg. & Rawle, 242, to the same point. In this case the money, if recovered on either count, is assets, the plaintiffs look for nothing in their own individual right, but declare in their representative character, and the counts may, therefore, be legally joined. The judgment must, in the opinion of a majority of the court, be affirmed.
Judgment affirmed.