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s 



/-! A .\ 



THE LAW 



OF 



EXPERT TESTIMONY. 



BY 



HENRY WADE RpGERS, A. M., LL.D., 

PRESIDENT OF THE NORTHWESTERN UNIVERSITY: FORMERLY DEAN 
OF THE LAW SCHOOL OF THE UNIVERSITY OF MICHIGAN. 



SECOND EDITION. BEWBITTEN AND ENLARGED. 



ST. LOUIS, MO. : 

CENTRAL LAW JOURNAL COMPANY, 

LAW PTJBLI8HBR8 AND PUBUBHBRS OF THB 

CENTRAL LAW JOURNAL. 
1891. 



Copyright, 1883, 

BY 

Hknry Wade Rogers. 



Copyright, 1891, 

BY 

IlENUY Wade Rogers. 

369992 



iSt. Louis J Mo., Printed by Central Law Journal Company 



TO THK 

HONORABLE THOMAS M. COOLEY, LL. D., 

Chairman of the Interstate Commerce Commisfion^ 

THIS BOOK IS insckibp:d, 

IN appreciation of his friendship and the virtues 
OF his private life, as well as in recog- 
nition OF HIS eminence AS A JURIST 
AND HIS FAME AS A JUDOE. 



PREFACE TO THE SECOND EDITION. 

In the Preface to the first edition of this work, 
the author stated its purpose to be to furnish to the 
practitioner a more extended presentation of the 
law relating to the testimony of experts than the 
treatises on evidence afforded. It seemed to him 
desirable that the law on this important subject 
should be set forth more in detail than it had been 
found practicable to do in the general treatises on 
the law of evidence. Writers on the general sub- 
ject had made no adequate attempt to bring to- 
gether the numerous cases relating to the testimony 
of experts, and as the subject was one of great and 
growing importance, it was deemed wise that a 
work on expert testimony should be prepared to 
supply what seemed to be an evident want. 

The first edition of the work having been for 
some time exhausted, and a second edition having 
become necessary, the author has entirely rewritten 
the work. This has made necessary changes in the 
arrangement of the work, and the numbering of 
the sections v/ill be found somewhat different from 
those in the former edition. So great changes in 



VI PREFACE TO THE SECOND EDITION. 

arrangement have been made that no reference is 
given to the sections of the first edition. It is be- 
lieved that no great inconvenience will result from 
this, as the order of the chapters remains the same, 
and the statement of the sections at the beginning 
of each chapter will readily indicate where the 
particular subjects discussed are to be found. 

The author believes that the second edition will 
be found considerably more valuable than the first. 
He has added an additional chapter — on the 
Weight of Expert Testimony — which he hopes 
may be found to be helpful. A large number of 
additional cases have been added, many of which 
are of no little importance. 

While the author entitles his work The Law of 
Expert Testimony, the reader will find that the 
treatment of the subject .necessitates a statement of 
the rules of law governing Opinion Evidence gen- 
erally. The law relating to the admission of the 
opinions of non-expert witnesses is stated with all 
the fullness which seemed to be desirable. 

Henry Wade Rogers. 

( Xorthwestorn University, t 
\ EvaostOD, 111., November, 1S90. \ 



TABLE OF CONTENTS. 



CHAPTER I. 

THE ADMISSIBILITY IN EVIDENCE OF THE OPINIONS OF 
ORDINARY AND EXPERT WITNESSES. 

Section. 

1. The Term Expert Defined. 

2. The Practice of AdmittiDg Expert Testimony an Ancient One. 

3. The Competency of Non-Professional Witnesses to Give Opinion 

Evidence. 

4. The Admissibility in Evidence of the Opinions of Non-Profes- 

sional Witnesses in Cases of Necessity. 

5. The Inadmissibility of Opinion Evidence. 

6. When Expert Testimony is Admissible. 

7. Meaning of the Terms Science and Art. 

8. When the Opinions of Experts are Inadmissible. 

9. The Question of the Admissibility of Expert Testimony is for 

the Court. 

10. Cases Illustrative of the Inadmissibility of the Opinions of Ex- 

perts. 

11. The Inadmissibility of Opinions Founded on a Theory of Morals 

or Duty. 

12. The Inadmissibility of Opinions on Abstract Questions of Science 

not Related to the Facts in Issue. 

13. Inadmissibility of Opinions Based on Speculative Data. 

14. Admissibility of the Testimony of Experts Who Have Made £x 

Parte Investigations. 

CHAPTER II. 

THE COMPETENCY OF EXPERT WITNESSES. 
Section. 

15. The Qualification of the Witness to Testify as an Expert Must 

First be Shown. 



Vlll TABLE OF CONTENTS. 

16. The Competency of the Witness a Question for the Court. 

17. Preliminary Examination of the Expert. 

18. Competency of Experts Whose Knowledge is Derived from Ex- 

perience. 

19. Competency of Experts Whose Knowledge is Derived from 

Study. 

20. Competency of Experts Whose Knowledge is Derived from Ob- 

servation. 

21. Upon What the Competency of Experts Rests. 

22. The Competency of the Witness as a Subject of Review in an 

Appellate Court. 

23. How the Objection to the Competency Should be Taken. 

24. Competency as Dependent on Whether the Expert has Heard 

the Testimony. 

25. Competency of Experts in Particular Cases. 

CHAPTER III. 

THE EXAMINATION OF EXPERT WITNESSES. 

Section. 

26. Mode of Examination of Expert Witnesses. 

27. The Hypothetical Question. 

28. The Form of the Hypothetical Question. 

29. The Form of the Hypothetical Question— The Subject Continued. 

30. The Hypothetical Question is not to be Based on the Opinions 

of Other Experts. 

31. When Questions Need not be Hypothetical. 

32. Instructions to the Jury Concerning Testimony Based on Hypo- 

thetical Questions. 

33. The Hypothetical Question on the Cross-Examination. 

34. Questions to Experts Should not Embrace Questions of Law. 

35. Questions to Experts as to Particular Cases. 

36. An Expert Cannot be Asked for an Opinion on Facts not Stated. 

37. Other Matters Pertaining to the Examination and Cross-Exam- 

ination of Experts. 

38. General Rules Governing the Examination of Witnesses. 

39. Excluding Experts from the Court Room During the Examina- 

tion of Witnesses. 

40. Right of Court to Limit Number of Expert Witnesses. 

41. By Whom Expert Witnesses are Selected. 

CHAPTER IV. 

EXPERT TESTIMONY IN MEDICINE, SURGERY AND 
CHEMISTRY. 

Section. 

42. Competency of Physicians to Testify a? Experts. 



TABLE OF CONTENTS. IX 

43. Disqualification Arising from Information Acquired While At- 

tending Patient. 

44. Cases inWhich Piiysicians may Testify Notwithstanding the Pro- 

hibitory Statutes. 

45. Partial Waiver of the Privilege. 

46. Opinions Based on Statements Made out of Court and not Under 

Oath. 

47. Opinions Based in Part on Declarations of Patients. 

48. Opinions as to the Condition of a Patient. 

49. Opinions as to Cause of Death. 

50. The Nature and Symptoms of Disease. 

51. Medical Testimony Relating to Wounds. 

52. Who are Competent to Testify. 

53. What Testimony is Admissible Concerning Wounds. 

54. Detection of Poisons by Experts. 

55. Who are Experts in the Detection of Poisons. 

56. Chemical Analysis of Poison not Necessary, When. 

57. Chemical Analysis of Contents of Stomach. 

58. Order of Research in Analysis for Poisons. 

59. Expert Testimony on the Subject of Blood. 

60. Whether Ordinary Witnesses may Testify as to Blood Stains. 

61. Blood Stains — Proper Question Concerning. 

62. Miscellaneous Cases in Which Opinions of Chemists Have Been 

Received. 

63. Expert Testimony on the Subject of Hair. 

64. Expert Testimony in Malpractice Cases. 

65. Expert Testimony in Cases of Rape. 

66. Expert Testimony In Cases of Abortion, Pregnancy and Sedut*- 

tion. 

67. Opinions of Non-Professional Witnesses as to Mental Conditi'^n. 

68. Expert Testimony as to Mental Condition. 

69. Form of Question as to Mental Condition. 

70. Evidence Bearing on Question of Insanity. 

71. Opinions Concerning the Discretion of a Person of Non-Age. 

72. Right to Order an Examination of the Person by Medical Ex- 

perts in Cases of Alleged Impotency. 

73. Who Should be Appointed to Malce the Examination, 

74. When Compulsory Examination in Such Cases Will not be Or- 

dered. 

75. Summoning Experts to Assist in Determining the Proper Inter- 

rogatories. 

76. The Subject of Inquiry — Structural Defect — Impracticability of 

Consummation. 

77. Defraying the Expenses of the Examination by the Experts. 

78. Compulsory Examination in Criminal Cases. 

79. Compulsory Examination in Actions for Damages. 



X TAKLE OF CONTENTS. 

80. Refusal to be Examined by a Particular Expert Who is Person- 

ally Obnoxious. 

81. The Opinions of Medical Men in Miscellaneous Cases. 

82. Opinions of Xon-Professional Witnesses on Questions Related to 

Medical Science. 

83. Experts in the Diseases of Animals. 

CHAPTER Y. 

EXPERT TESTIMONY IN THE SCIENCE OP LAW. 

Section. 

84. The Law as a Subject for the Testimony of Experts. 

85. Of what Laws Courts talce Judicial Notice and Expert Testi- 

mony is not Received. 

86. Of what Laws Courts do not take Judicial Notice^and Expert 

Testimony may be Received. 

87. Proof of the Unwritten Law of a Foreign State. 

88. Proof by Experts of the Written Law of Foreign States— Allowed 

in England. 

89. Manner of Proof in the United States of the Written Law of 

Foreign States. 

90. Proving the Written Law in the Discretion of the Court, by the 

Testimony of Experts. 

91. Expert Testimony as to the Construction and Interpretation of 

Written Law. 

92. Presumption that Law is Unwritten. 

93. Presumption that the Law Remains Unchanged. 

94. Who are Qualitied to Testify as Experts in Foreign Law. 

95. Who are Qualified to Testify as Experts in Foreign Law— The 

Rule in England. 

96. Where Knowledge of the Foreign Law Must Have Been Ac- 

quired. 

97. Right of Expert to Cite Text Books, Decisions, Codes, etc. 

98. How the Citations are to be Regarded. 

99. Whether the Question of Foreign Law is for the Court or Jury. 

100. Testimony as to Usage and Practice of Courts of Another State. 

101. Testimony as to Powers and Obligations of an Attorney in his 

Relations to his Clients. 

102. The Value of Legal Services. 

CHAPTER VI. 

EXPERT TESTIMONY ON THE TRADES AND ARTS. 

Section. 

103. Testimony of Nautical Men. 

104. Testimony of Railroad Men. 

105. Testimony of Insurance Men. 



TABLE OF CONTENTS. XI 

106. Testimony of Civil Engineers. 

107. Testimony of Surveyors. 

108. Testimony of Millers and Mill-wrigbts. 
100. Testimony of Machinists. 

110. Te.«timony of Mechanics. 

111. Testimony of Masons. 

112. Testimony of Farmers and Gardeners. 

113. Testimony of Cattlemen. 

114. Testimony of Painters and Photographers. 

115. Testimony of Lumbermen. 

116. Testimony of Experts in Patent, Trade-mark and Copyright 

Cases. 

117. Testimony of Business Men as to Usage. 

118. Testimony as to Technical Terms and Unusual Words. 

119. Translation by Experts of Writings from a Foreign Language. 

120. Opinions of Experts in Miscellaneous Cases. 

CHAPTER VII. 

EXPERT TESTIMONY IN HANDWRITING. 
Section. 

121. Proof of Handwriting. 

122. Testimony of Xon-Professlonal Witnes&es. 

123. When the Opinions of Such Witnesses are Inadmissible. 

124. The Basis of Expert Testimony Concerning Handwriting. 
126. Who are Experts in Handwriting. 

126. Disqualification of Experts Arising from Bias. 

127. Upon What Subjects Experts in Handwriting can Testify. 

128. Genuineness of Writings as Determined by the Ink. 

129. The Qualifications of Experts in Such Cases. 

130. Comparison by Experts of Writings in Juxtaposition. 

131. Statutory Provisions Concerning a Comparison of Writings. 

132. Proof Under the Statutes. 

133. Comparison by Experts with Writings Admittedly Genuine — In 

the Absence of Statutory Provision. 

134. Comparison by Experts of Writings in Juxtaposition Not 

Allowed in Some States. 

135. Comparison in Doubtful Cases — The Intermediate Theory of the 

South Carolina Courts. 

136. The Right of Comparison with Writings Proven Genuine fo 

the Purpose— Denied. 

137. The Right of Comparison with Writings Proven Genuine for 

the Purpose — Affirmed. 

138. Mode of Proof When Comparison is Allowed with Writings 

Proven Genuine for the Purpose. 

139. Expert Should Have Before Him in Court the Writings 

Compared. 



Xll TABLE OF CONTENTS. 

140. Comparison with Photographic Copies. 

141 . Comparison with Letter-Press Copies. 

142. Comparison with Writings Made on the Trial. 

143. Writings Admissible for Comparison in Orthography. 

144. Comparison of Writings— The Use on Cross-Exami nation of 

Fictitious Specimens. 

145. Detection of Counterfeit Bank Notes. 

146. Regulation of Such Evidence by Statutory Provision. 

147. The Value of Expert Testimony as to Handwriting. 

CHAPTER VIII. 

EXPERT AND OPINION TESTIMONY ON QUESTIONS OF 

VALUE. 

Section. 

148. Proof of Value. 

149. The Opinions of Experts on the Question of Value. 

160. The Opinions of Ordinary Witnesses on the Question of Value. 

151. When the Opinions of Witnesses on the Question of Value are 

Inadmissible. 

152. The Competency of the Witness Must First be Shown. 

153. Competency in Particular Cases. 

154. Form of Question— Amount of Damages. 

155. The Value of Real Estate. 

156. Value of Personal Property Generally. 

157. Value of Services Generally. 

158. Value of Legal Services. 

159. Value of Services Rendered by Physicians and Nurses. 

160. Value of Annuities. 

161. Value of Foreign Currency and Negotiable Securities. 

CHAPTER IX. 

THE RELATION OP SCIENTIFIC BOOKS TO EXPERT 

TESTIMONY. 

Section. 

162. The Relation of Scientific Works to Expert Testimony. 

163. The Admissibility in Evidence of Certain Scientific Works. 

164. The Inadmissibility in Evidence of Opinions and Statements 

Contained in Standard Treatises on Inexact Sciences— Tlie 
Rule in England. 

165. Their Inadmissibility in Some States of this Country. 

166. Their Inadmissibility in Evidence is the General Rule in the 

United States. 

167. Their Inadmissibility in California. 

168. Their Inadmissibility In Illinois, Indiana and Kansas. 

169. Their Inadmissibility in Maine, Maryland and Massachusetts. 



TAB1,E OF CONTENTS. XI 11 

170. Their loadmisslbility iu Michigan and Mississippi. 

171. The Doctrine in New Hampshire and New York. 

172. Their Inadmissibility in North Carolina and Rhode Island. 

173. Their Inadmissibility in Wisconsin. 

174. The Reasons Why Such Books Should Not be Received in 

Eyidence. 

175. Views of Writers on Medical Jurisprudence on the Question. 

176. Their Inadmissibility for Purposes of Contradiction. 

177. The Rights of the Witness to Refer to, or Cite Standard 

Authorities. 

178. Reading from Authorities and Asking the Witness Whether he 

Agrees with the Extracts Read. 

179. Reading from Scientific Books in Argument. 

180. The Rule in England on the Subject. 

181 . Cases in the United States Denying to Counsel the Right to Read 

in Argument from Scientific Books. 

182. Cases Sometimes Cited as Supporting the Rights of Counsel so 

to do. 

183. Cases Deciding that Counsel may Read from Scientific Books in 

Argument. 

184. Reading the Testimony of Experts as Contained in the Official 

Reports. 

CHAPTER X. 

COMPENSATION OF EXPERTS. 

Section. 

185. Statutory Provisions Concerning the Compensation of Experts. 

186. Experts Need Not Make a Preliminary Examination Unless 

Special Compensation is Made. 

187. Experts Cannot be Required to Attend Throughout an Entire 

Trial for the Purpose of Listening to the Testimony. 

188. Whether Experts may Decline to Express an Opinion Until 

Special Compensation is Made. 

189. Opinions of Writers on Medical Jurisprudence as to Special 

Compensation. 

190. American Cases Favoring the Right to Extra Compensation. 

191. American Cases Denying the Right to Extra Compensation. 

192. Extra Compensation Allowed in England. 

193. Effect of Making Extra Compensation. 

194. Special Compensation to Expert Employed by the State in 

Criminal Cases. 

195. Special Compensation to Experts Summoned for the Defense 

Paid Out of the Public Ti-easury. 

196. Taxing Expense of Services of an Expert as Cost. 



-XIV TABLE OF CONTENTS. 

CHAPTER XI. 

THE WEIGHT OF EXPERT TESTIMONY. 
Section. 

197. The Klght of a Court to Express an Opinion on the Facts. 

198. The RlKht of a Court to Give Cautionary Instructions in Certain 

Cases. 

199. Why Expert Testimony Should in Some Cases he Received with 

Caution. 

200. Cases Holding that Expert Testimony Should he Received with 

Caution. 

201. Cases Holding that Expert Testimony Should he Considered as 

Other Testimony, and Tried hy the Same Tests. 

202. Cases Holding that Expert Testimony Is Entitled to Little 

Weight. 

203. Cases Holding that Expert Testimony in Matters of Medical 

Science is Entitled to Great. Weight. 

204. Cases Denying that the Testimony of Physicians as to Mental 

Condition Is Entitled to Greater Weight than that of Ordinary 
Witnei^ses. 

205. The Testimony of a Family Physician as to Mental Condition- 

Weight Accorded to. 

206. The Different Theories Discussed. 

207. The Right and Duty of the Jury as to Expert Testimony. 



TABLE OF CASES CITED. 



Abbey y. Lill, 6 Bing, 299, p..280. 
Abbott V. Dwinnell, 74 Mo. 514, p. 122. 
Abbott V. GolemaD, 82 Kan. 250, p. 820. 
Abbott y. Coleman, 21 Kan. 2S0, p. 838. 
AbeU y. Manson, 18 Mich. 806, p. 319. 
Adama v.t>ale, 29 Ind. 273, p. 861. 
Adams v. Field. 21 Vt. 256, p. 380. 
Adams y. Peters, 2 Oar. A Kir. (61 K. O. 

L..) 722, p. 272. 
A()ams y. Thornton, 82 Ala. 260, p. 18. 
Alabama, Ate. B. B. Co. y. Burkett, 42 

Ala. 83, p. 869. 
Albert y. The State, 66 Md. 826, pp. 11 , 14. 
Albright y. Oorley, 40 Tex. 106, p. 267. 
Allen y. Hunter, 6 McLean, 803, pp. 4, 

146. 
Allen y. State, 8 Humph. (Tenn.) 867, p. 

844. 
Allen y. Railroad Co., 57 Iowa, 626, p. 38. 
Allen's Appeal, 99 Pa. St. 196, p. 65. 
Ailis y. Day, 14 Miss. 616, p. 881. 
Alt y. Oallfomia Fig, etc. Co., 19 Ney. 

118, p. 852. 
Amadon y. Ingersoll, 84 Hun (N. Y.), 

184, pp. 26, 58. 
American Bible Society y. Price, 115 BI. 

628, pp. 9, 158. 
American Life Ins. Co. y. Rosenagle, 77 

Pa. St. 507, p. 216. 
Ames y. Cannon Biyer Mfg. Co., 27 

Minn. 245, p. 446. 
Amherst Bank y. Boot, 2 Met. 523, p. 

289. 
Amstein y. Gardner, 134 Mass. 10, p. 14. 
Anderson y. Anderson, 28 Tex. 689, p. 

199. 
Anderson y. Folger, 11 La. Ann. 269, p. 

199. 
Andre y. Hardin, 82 Mich. 826, p. 85. 
Anonymous, 87 Miss. 54, p. 84. 



Anon. 85 Ala. 226, p. 172. 

Anson y. D wight, 18 Iowa, 244, pp. 853, 

867. 
Anthony y. Stlnson, 4 Kan. 211, pp. 881, 

486. 
Anthony y. Smith, 4 Bos. (N. T.), 508, 

pp. 91, 121. 
Antomarchi y. Bussell, 63 Ala. 866, p. 

272. 
Appleby y. ^LStor Fire Ins. Co., 54 N. Y. 

258, p. 249. 
Appleby y. Brock, 76 Mo. 814, pp. 9, 158, 

161, 165. 
Ardesco Oil Co. y. Gilson, 68 Penn. St. 

146, p. 40. 
Armstrong y. Burrows, 6 Watts, 266. 

p. 302. 
Armstrong y. Lear, 8 Pet. 62, p. 198. 
Armstrong y. Thurston, 11 Md. 148, p. 

828. 
Ashcraf t y. De Armond, 44 Iowa, 229, p. 

167. 
Ashland y. Marlborough, 99 Mass. 48, 

pp. 106, 189. 
Ashworth y. Kittridge, 12 Cnsh. 194, 

pp. 402, 418. 
Atchison, etc. B. B. Co. y. Miller, 89 

Kan. 419, pp. 8, 12. 
A., T., etc. B. B. Co. y. Frazier, 27 Kan. 

468, pp. 116, 122. 
Atchison, etc. B. B. Co. y. Thul, 82 Kan. 

255, pp, 468,488. 
Atchison, etc. B. B. Co. y. Thul, 29 Kan. 

466, p. 188. 
Atchison, etc. B.B. Co. y. United States, 

15 Ct. of 01. 126, pp. 22, 24, 855. 
Atlantic, etc. B. B. Co. y. Oampbell , 4 

Ohio St. 588, pp. 867, 370. 
Atlantic Ins. Co. y. Manning, 8 Cal. 228, 

p. 288. 
Attorney- General Petitioner, 104 Mas^. 

587, p. 441. 



XVI 



TABLE OF CASES CITED. 



Atwaier v. Olancy, 107 Mass. 8G9, pp. 

271,280. 
Atwood T. Cornwall, S8 Mich. 389, p. 840. 
Atwood y. Bearas, 45 Mich. 409, p. 860. 
Augusta, oto. R.R. Oo. v. Dorsey, 08 6a. 

228, pp. 887, 288. 
Anxnick ▼. MitcheU, 82 Pa. St. 211, p. 829. 
Aveson V. Klnnaird, 6 East, 188, p. 114. 
Ayers y . Water CommissIODers, 29 K. Y. 

. Sup. Ot. 297, p. 64. 
Ayres y. Water Commissioners, 29 N.Y. 

Sup. Ct. 297, p. 75. 



B. 



Baboock y. Baboook, 46 Mo. 248, p. 190. 
Babcock v. Middlesex Savings Bank, 28 

Conn. 806, p. 6. 
Baboock y. Raymond, 2 Hilton (X. T.), 

61, p. 861. 
Bacon V. Charlton, 7 Cusb. 681, p. 114. 
Bacon y. County of Wayne, 1 Mich. 461, 

p. 426. 
Bacon v. Williams, 18 Gray (Mass.), 625, 

p. 300. 
Bailey v. McDowell, 2 Harrington(Dei.), 

84, p. 199. 
Bailey y. Pool, 18 Ired. (N. C.) 406, p. 6. 
Bain y. Cushman, 60 Vt. 848, p. 18. 
Bain y. Cushman, 66 Vt. 848, p. 867. 
Baird v. Daly, 68 N. Y. 648, p. 280. 
Baker v. City of Madison, 62 Wis. 148, p. 

14. 
Baker y. Haines, 6 Wharton (Pa.), 291, 

p. 881. 
Baldwin v. St. Louis, etc. R. R. Co., 68 

Iowa, 37, p. 269. 
Ball v. Hardesty, 88 Kan. 640, pp. 268, 

268. 
Ball v. Consolidated Franklin, etc. Co., 

82 N. J. L. 102, p. 109. 
Ballar.1 v. Nebraska, 19 Neb. 609, p. 66. 
Ballard y. New York, etc. R. R. Co., 126 

Pa. St. 141, p. 16. 
Baltimore Elevator Co. v. Neal, 66 Md. 

488, p. 286. 
Baltimore, etc. R. R. Co. y. Thompson, 

10 Md. 76, pp. 64, 267. 
Baltimore, etc. Turnpike Co. v. Cassell, 

66 Md. 419. p. 61. 
Baltimore, etc. R. R. Co. v. Glenn, 28 

Md. 287, p. 200. 
Baltimore, etc. R. R. Co. v. Leonhardt, 

66 Md. 77, pp. 26, 45. 
Baltimore, etc. R. R. Co. y. Shipley, 89 

Md. 261, p. 88. 
Bank y. Barry, 20 Md. 287, p. 226. 
Bank of Commerce y. Bissell, 72 N. Y 

615, p. 271. 



Banks y. State, 18 Texas Ct. of App. 182, 
I p. 128. 
Bannister y. Weatherford, 7 B. Mon 

269, p. 828. 
Barber v. Merrlam, 11 Allen, 822, pp. 106 
114, 160. 
I Barker v. Comlns, 186 Mass. 477, p. 169. 
I Barker y. Coleman, 86 Ala. 221, p. 189. 
I Barker y. Pope, 91 N. C. 166, p. 158. 
' Barker v. Porry, 67 Iowa, 146, p. 838. 
Barkman v. Hopkins, 11 Ark. 168, p. 205. 
i Barlow v. Lambert, 28 Ala. 704, pp. 271, 

272. 
' Baron De Bode's Case, 8 Ad. A Ellis (N. 

S.),208, pp. 902, 208. 
Barnard v. Kellogg, 10 Wall. 888, p. 272. 
Barnes v. Ingalls, 89Ala. 198, pp 268, 271. 
Barnett y. Allen, 8 H. A N. 376, p. 278. 
I Barrick v. City of Detroit, 1 Mich. N. P. 

185, p. 402. 
' Barrows v. Downs, 9 R. I. 446, p. 222. 
' Bass Furnace Co. y. Glasscock, 82 Ala. 

462, p. 12. 
Bates y. State, 68 Ala. 80, p. 898. 
Bates v. Sharon, 46 Vermont 474, p. 6. 
Bathrlck v. Detroit Post A Tribune Co., 

60 Mich. 648, pp. 66, 164. 
Batten v. State, 80 Ind. 394, pp. 118, 127, 

180. 
Bayly v. Chubb, 16 Gratt. (Va.) 284, p. 

196. 
Baxter v. Abbott, 7 Gray, 71, pp. 103, 162 

167, 480. 
Beach y. 0*RUey, 14 W.Va. 66, p. 801. 
Beal v. Nichols, i Gray, 262, p. 88. 
Beale v. Posey, 72 Ala. 828, p. 10. 
Bearss v. Copley, 10 N. Y. 95, pp. 20, 48. 
Beason v. Kurz. 66 Wis. 448, p. 274. 
Beaubien v. Cicotte, 18 Mich. 459, op. 158, 

448, 479. 
Beauchamp v. Mudd, Hardin (Ky.), 168, 

p. 199. 
Beaumont v. Perkins, 1 Philllmore, 78, 

pp. 810, 881, 681. 
Beck with v. Sydebotham, 1 Camp. 117, 

p. 280. 
Bedell y. Long Isl. R. R. Co., 44 N. Y. 867, 

pp. 866, 862, 377. 
Bedford v. Flowers. 7 Humph. (Tenn.) 

282, p. 271. 
Beecher y. Dennison, IS Gray (Mass.), 

864, pp. '864,366. 
Beekman y. Platner, 16 Barb. (N. Y.) 

660. p. 881. 
Bel air v. The C. A N. W. R. Co., 48 Iowa, 

* 667, p. 28. 
Bell y. Brewster, 44 Ohio St. 690, pp. 286, 

380. 
Bell y. McMaster,29Hun (N. Y.), 272, pp 

9,168. 



TABLE OF CASES CITED. 



XVll 



BeUer ▼. Jones, 82 Ark. 92, p. 166. 
BeUln^T ▼. N, Y. Oen*. B. R. Oo., 2S N. 

T, 42, p. 75. 
BeUefontaine, etc. R. B. Go. v. Bailey, 

11 Ohio, 8», pp. 75, 286. 
Bemls V. Central Vermont R. B. Co., 68 

Vt. 686, pp. 17, 66, 269. 
Benaway v. Conyme,8 Chand. (Wis.) 214, 

p. 90. 
Benedict v. Olty of Fon du Lao, 44 Wis. 

496, pp. 6, 32, 258. 
Benedlot y.Flanlgan, 18 8. 0. 606, pp. 311, 

827,461. 
Bennett v. Bennett, Deady,29e, p. 198. 
Bennett t. FaU, 26 Ala. 606, pp. 118, 121, 

189. 
Bennett y. Matthews, 6 8. 0. 478, p. 827. 
Bennett v. State, 57 Wis. 69, pp. 63, 70. 
Bennlson v. Walbank, 88 Minn. 818, p. 

490. 
Benson v. McFaddon, 50 Ind. 431, p. 10. 
Berokman y. Berokman, 16 N. J. Eq. 122, 

p. 6. 
Berg y. Sptnk, 24 Minn. 188, p. 40. 
Berg V. Chicago, etc. R. R. Co.. 60 Wis. 

427, p. 882. 
Berliner v. Waterloo, 14 Wis. 378, p. 197. 
Berryhlll y. Klrchner, 96 Pa. St. 489, pp. 

824.829. 
Berry y. Raddin, 11 Allen, 679. p. 286. 
Berry y. State, 10 Ga. 611, p. 158. 
Berthon y. Loughman, 2 Starkle, 268. pp. 

247, 248. 
Bertie y. Beaumont, 2 Price, 807, p. 286. 
Bestor y. Roberts, 58 Ala. 381, pp. 818, 

328. 
Bettsy. Clifford, Warwick Lent Assizes, 

1868, 487. 
Beurmann y. Van Buren, 44 Mich. 496, 

p. 446. 
Beyerly y. Williams, 4 Dey. A Bat. (N. 

O.) 286, p. 10. 
Beyerly y. Walden, 20 Gratt. (Va.) 147, 

p. 481. 
Blerbach y. Goodyear Rubber Co., 64 

Wis. 208, p. 492. 
Blerce y. Stocking, 11 Gray (Mass.), 388, 

p. 145. 
Belsenthrall y. Williams. 1 Duyal (Ky.). 

380. p. 209. 
Bills y. Ottumwa, 85 Iowa, 107, pp. 16,20, 

264. 
Birch y. Rldgway, 1 Fost. A Fin. 270, p. 

812. 
Bird y. MUlar, 1 McM. 125, p. 327. 
Bird y. Commonwealth, 21 Gratt. ( Va. ) 

800. pp. 3. 99, 216. 
Bishop y. Splnlng. 88 Ind. 143, pp. 64, 76. 
Bishop y. State, 80 Ala. 40, pp. 318. 328. 
BlsseU y. Ryan, 23 lU. 670, p. 272. 



BlsseU y. Wert, 86 Ind. 64, p. 867. 
Bltner y. Bltner, 66 Pa. St. 847, p. 108. 
Blzby y. Montpeller, etc. R. R. Co., 49 

Vt. 128, p. 289. 
Blaokwell y. State, 67 Ga. 76, p. 179; 8. C.» 

8 Crlm. Law Mag., 894, p. 179. 
Blacklngton y. Johnson, 126 Man. 21, 

p. 88. 
Blake y. Grlswold, 108 N. Y. 429, p. 878. 
Blake y. People, 78 K. Y. 586, p. 11. 
Blake y. Rourke, 74 Iowa. 619. p. 165. 
Blanchard y. New Jersey Steamboat 

Co., 3 N. Y. Sup. Ot. 771. p. 238. 
Bland y. S. P. R. R. Co., 65 Cal. 626, p. 189. 
Bliss y. Johnson, 76 Cal. 597, p. 888. 
Bliss y Wllbraham,8 AUen (Mass.), 664. 

p. 14. 
Blizzard y. Applegate,61 Ind. 871, p. 881. 
Blodgett Paper Co, v. Farmer, 41 N. H. 

401, p. 282. 
Blood y. Light, 81 Cal. 116, p. 279. 
Blumenthal y. Rail, 24 Mo. 118, p. 255. 
Board of Commissioners y. Chambers, 

76 Ind. 409, p. 884. 
Board of Trustees y. Mlsenhelmer, 78 

111. 22, p. 290. 
Boardman v. Woodman, 47 N. H. 120, 

pp. 39, 40. 78. 156. 
Book y. Lauman, 24 Pa. St. 485, p. 226. 
Boehtllnck y. Schneider, 3 Esp. 68, p. 202. 
Boggan y. Home, 97 N. C. 268, p. 850. 
Bogglns y. State, 34 Ga. 278, p. 328. 
Boggus y. State. 34 Ga. 276, p. 319. 
Boles y. McAllister, 12 Me. 808, pp. 165. 

192. 
Bomgardner y. Andrews, 65 Ind. 688, 

p. 66. 
Bonner y. Herrick, 99 Pa. St. 220, p. 446. 
Boor y. Lowrey, 108 Ind. 480, p. 61. 
Booth y. Cleyeland MIU Co., 74 N. Y. 27, 

p. 280. 
Borland y. Walwrath, 38 Iowa, 133, p. 

460. 
Boston, etc. R. R. Co. y. Old Colony, etc. 
R. R. Co.. 3 Alien (Mass.), 142, p. 356. 
Bowdlcht y. Soltyk. 99 Mass. 138, p. 198. 
Bowen y. Bowen, 74 Ind. 470, p. 878. 
Bowles y. Eddy, 83 Ark. 645, p. 206. 
Bowman y. Plunkett, 2 McC. 618, p. 827. 
Bowman y. Sanborn. 25 N. H. 110, p. 321. 
Bowman y. Smith, 1 Strobh. (8. C.) 246, 

p. 444. 
Bowman y. Woods, 1 Greene (Iowa), 

441, pp. 100, 148, 896. 
Boyle y. State, 61 Wis. 440, p. 119. 
Boyle y. State, 57 Wis. 472, pp. 404, 409. 

414. 
Brabbltts y. Chicago, etc. R. R. Co., 88 
Wis. 289, p. 287. iB) 



XVIU 



TABLE OF CASES CITED. 



Braobman A Hall, 1 Disney, 689, p. 287. 
Brackett y. Norton, 4 Conn. 517, p. 199. 
Bradford v. Cooper, 1 La. Ann. 325, p. 

197. 
Bragg y. City of Moberly, 17 Mo. App. 

221, p. 189. 
Bragg y. Col well, 19 Ohio, 412, pp. 380, 

381. 
Brain ard y. Boston, etc. R. B. Co., 12 

Cray (Biass.), 407, p. 378. 
Brant y. City of Lyons, 60 Iowa, 172, pp. 

17, 122. 
Brantly y. Swift, 24 Ala. 390, p. 264. 
Brehm y. Great Western R. R. Co., 84 

Barb. 266, p. 488. 
Brewer y. Freeman, 10 Moore, P. C. 306, 

p. 224. 
Brewer y. Lnth, 28 Kan. 681, p. 214. 
Bridge y. City of Oshkosb, 71 Wis. 868, 

pp. 11, 191. 
Bridger y. R. R. Co., 26 8. C. 24, p. 241. 
Bridges y. McClendon, 66 Ala. 327, p. 

266. 
Briggs y. Briggs, 20 Mich. 84, p. 108. 
Briggs y. Morgan, 8 Pbillimore, 826, p. 

172. ^ 

Brimhall y. Van Campen, 8 Minn. 18, p. 

199. 
Brink y. Merchants', etc. Ins. Co., 49 Vt. 

442, p. 249. 
Bristol County Saying Bank y. Keayy, 

128 Mass. 208, pp. 871, 372. 
Bristow y. Sequeyille, 5 Bxoheq. 272, p. 

221. 
Brown y. Brown, 1 Haggard, 523, pp. 172, 

174. 
Brown y. Brown, 10 Met. 573, p. 276. 
Brown y. Cape Girardeau, etc. Plank 

Road Co., 89 Mo. 162, p. 14. 
Brown y. Ohenoworth, 61 Tex. 469, p. 84. 
Brown y. Doubleday, 61 Yt. 623, p. 284. 
Brown y. Foster, 113 Mass. 186, p. 271. 
Brown y. Huffard, 68 Mo. 306, pp. 76, 881. 
Brown y. Jackson, 2 Wash. C. C. 24, p. 

272. 
Brown y. Kennedy, 33 L. J. Ch. 71 ; 38 

Beay. 188; 4 O. J. A. S. 217, p. 880. 
Brown y. Leacli, 107 Muss. 864, p. 280. 
Brown y. Moore, 82 Mich. 254, p. 364. 
Brown y. Proyidence A Springfield R. 

R. Co., 12 R. I. 238, pp. 361, 870, 374. 
Brownell y. People, 88 Mich. 782, p 10. 
Browning y. Long Island R. R. Co., 2 

Daly (N. Y.),li7,p. 377. 
Brobston y. Cahill, 64 111. 85S, pp. 325, 

828. 
Brooke y. Brooke, 60 Md. 629, p. 388. 
Brooke y. Townshend, 7 Gill (Md.), 24, 

p. 168. 



Brookes y. Tlchborne, 5 Exoh. 929, p. 

841. 
Brough y. Perkins, 6 Mod. 81, p. 898. 
Broquet y. Tripp, 36 Kan. 700, pp. 39, 66. 
Bruch y. Carter, 82 N. J. Law, 664 p. 446. 
Bruyn y. Russell, 62 Hun, 17, p. 322. 
Bryan y. Town of Branford, 60 N. Y. 66, 

P 268. 
Bryant y. Kelton, 1 Tex. 434, p. 205. 
Brunswick, etc. R. R. Co. y. McLaren, 

47 Ga. 546, p. 869. 
Buckley y. Rice, l Plowdev, 126, p. 5. 
Buel y. N. Y. Cent. R. R. Co., 81 N. Y. 

-814, p. 122. 
Buford y. McGetchle, 60 Iowa, 298, p. 

860. 
Buffum y. Harris, 5 R. I. 250, pp. 3, 262» 

264, 279. 
Buffum y. N. Y. Central, etc. R. R., 4 R. 

I. 221, p. 351, 872. 
Bullard y. Hascall, 25 Mich. 182, p. 88. 
Burdick y. Hunt, 48 Ind. 881, pp. 299,819. 
Burger y. Northern Pacific R. R. Co., 22 

Minn. 843, pp. 361, 357. 
Burlington, etc. R. R. Co. y. Beebe, 14 

Neb. 463, pp. 867, 870. 
Burlington Ins. Co. y. Leod, 40 Kan. 64, 

p. 276. 
Burlington, etc. R. R. Co. y. Schlnnts, 

14 Neb. 421, p. 870. 
Burnhanf y. Boston Marine Ins. Co., 

139 Mass. 899, p. 274. 
Burnbam y. Mitchell, 84 Wis. Ill, p. 158. 
Bums y. Barenfleld, 84 Ind. 43 (1882), 

pp. 71. 82. 
Burns y. Welch, 8 Yerg. (Tenn.) 117, p. 

260. 
Burton y. Scott, 8 Rand. (Va.) 399, p. 

474. 
Burton y. WUkes, 66 N. C. 604, p. S22. 
Burwell y. Sneed. 104 N. C. 118, p. 266. 
Bush y. Jackson, 24 Ala. 278, p. 118. 
Butcher y. Bank, 2 Kan. 70, p. 200. 
Buxton y. Somerset Potters Works, 121 

Mass. 446, pp. 16, 61 68. 



Cabot Bank y. Russell, 4 Gray, 167, p. 

320. 
Cahill y. Palmer, 46 N. Y. 478, p. 286. 
Gaboon y. Ring, 1 Clifford, 592, p. 270. 
Caldwell y. Murphy, 11 N. Y. 416, p. 115. 
Calkins y. State, 14 Ohio St. 222, pp. 294, 

831,832. 
Callahan y. Stanley, 67 Cal. 479, p. 274. 
Campbell y. Russell, 9 Iowa, 837, p. 274. 
Campbell y. Russell, 189 Muss. 278, pp. 

27, 67. 



TABLE OF CASES CITED. 



XIX 



Campbell v. Bichards, Barn. A Ad. 840, 

pp. 20, 247. 
Campbell v. State, 10 Tex. Ct. of App. 

560, pp. 15S. 
Campion v, Kille, 1 McCarter (N. J.), 

229, p. 199. 
Canadyy.Lynob, 27 Minn. 485, pp. 11, 

189. 
Cannell t. PhcBnlx Ins. Co., 69 Me. 682, 

p. 219. 
Cannon v. I«wa City, 84 Iowa, 203, p. 

809. 
Cantllng v. Hannibal, etc. B. B., 64 Mo. 

885, pp. 851,853,857. 
Carey y. Cincinnati, etc. B. B. Co., 5 

Iowa, 857, p. 199. 
Carpenter v. Blake, 2 Lana. (N. Y.) 206> 

pp. 59, 66, 75. 
Carpenter v. Calvert, 83 111. 62, p. 477. 
Carpenter ▼. Central Park, etc. B. B. 

Co., 11 Abb. Pr. (N. S.) 416. p. 240. 
Carpenter v. Corinth, 58 Vt. 214, p. 89 

57. 
Carpenter v. Dexter, 8 Wall. 518, p. 200, 
Carpenter y. Eastern Transportation 

Co., 71 N.Y. 674, pp. 68, 280. 
Carpenter v. Hatch, 64 N. H. 578, p; 157. 
Carpenter y. Wait, 11 Cush. (Mass.) 267. 

p. 267. 
Carr y. State, 24 Tex. Ct. of App. 502, p. 

171. 
CarroU y. State, 23 Ala. 28, p. 11. 
Carter y. Baker, 1 Sawyer, 512, p. 457. 
Carter y. Boehm, 2 Burr, 1906, p*. 247. 
Carter y. Carter, 86 Mich. 207, p. 880. 
Carter y. State, 2 Ind. 619, p. 400. 
Carthage Turnpike Co. y. Andrews, 

102 Ind. 188, pp. 9, 11, 189. 
Cartwright y. Cartwright, 26 W. B. 681, 

p. 222. 
Case y. Perew, 46 Hun (N. Y.), 67, pp. 28, 

58,398. 
Castner y. Sllker, 38 N. J. L. 96, 507, pp. 

10, 101. 
Cayandish y. Troy, 41 Vermont, 106, pp. 

8,2\J. 
Central B. Co. y. Kelly, 68 Ga. 107, pp. 6, 

18, 367. 
Central B. B. Co. y. Linn, 78 Ga. 706, p. 

367. 
Central B. B. Co. y. Mitchell, 63 Ga. 178, 

pp. 47, 252. 
Central B. B. Co. y. Mitchell, 1 Am. & 

£ng. B. B. Cases, 146, pp. 47, 252. 
Central Pacific B. B. Co. y. Pearson, 36 

Cal. 247, pp. 81, 360, 875. 
Central Branch, etc. B. B. Co. y. 

Nichols, 24 Kan. 242, p. 881. 
Central B. B. Co. y. Bichards, 02 Ga. 806, 

p. 892. 



Central B. B. Go. y. Wolf, 74 Ga. 664, p. 

852. 
Chamberlain y. Maitland, 6 B. Mon, 

(Ky.)448, p,209. 
Chamboyet y. Cagnet, 8 J. AS. (N. Y.) 

474, p. 866. 
Chamness y. Chamness, 68 Ind. 804, p. 

858. 
Champ y. Commonwealth, 2 Met. (Ky.) 

18, p. 38. 
Chance y. Indianapolis, etc. B.B. Co., 

82 Ind. 478, p. 819. 
Chandler y. Barrett, 21 La. Ann. 58, pp* 

458,486. 
Chandler y. Grieyes, 2 H. Bl. 606n., p^ 

197. 
Chandlery. Thompson, 80 Fed. Bep. 88, 

pp. 89, 261. 
Chandler y. Jamaica Pond Aqnedactf 

125 Mass. 544. pp. 40, 252. 
Chandler y. LeBarron, 45 Me. 584, p. 840. 
Chanoine y. Fowler, 8 Wend. 178, p 209. 
Charlotte y. Chouteau, 83 Mo. 194, pp. 

226. 
Chase y. Lincoln, 81 Mass. 237, p. 156. 
Chase y. Winans, 59 Md. 475, pp. 168. 

160. 
Chanrand Angerstein, Peake N. P. C. 61, 

pp. 20, 247. 
Cheatham y. Hatcher, 30 Gratt. (Va.) 

56. p. 474. 
Cheek y. State, 88 Ala. 227, p. 266. 
Cbeeney y. Dunlap, 20 Neb. 266, pp. 302, 

807. 
Cherokee y. S. C, etc. Co., 62 Iowa, 279, 

p. 849. 
Chester y. State, 23 Tex. Ct. of App. 583, 

p. 296. 
Chicago, etc. B. B. Co. y. Blake, 116 111. 

168, p. 871. 
Chicago, etc. B. B. Co. y. George, 19 111. 

610, pp. 11, 189, 190, 191. 
Chicago y. Greer, 9 Wall. 726, p. 260. 
Chicago, etc. B. B. Co. y. Martin, 112 

lU. 16, p. 128. 
Chicago & Alton B. B. Co. y. Springfield 

& Northwestern B. B. Co., 67 111. 142, 

pp. 39, 61. 
Chicago, etc. B. B. Co. y. Shannon, 48 

111. 839, p. 237. 
Chicago y. McDorough, 112 111. 85, p. 

870. 
Childs y. State, 55 Ala. 28, p. 12. 
Choicd y. State, 31 Ga. 424, pp. 157, 160, 

475, 486. 
Chcrley y. Bolcot, 4 Term B. 317. p. 883. 
Chouteau y. Pierre, 9 Mo. 3, p. 197. 
Churchy. Hubbart, 2 Cranch, 187, p. 206. 
Chuich y. Milwaukee, 81 Wia 618, p. 838. 
CiUey y. CUley, 84 Me. 162, p. 156. 



zx 



TABLE OF CASES CITED. 



Cincinnati, etc. Mut. Benefit Life Ins. 

Oo. y. May, 20 Ohio, 211, pp. 61, 234. 
Olnoinnatl, etc. Mut. Ins. Co. v. May, 20 

Ohio, 211, p. 76. 
Cincinnati, etc. B. B. Oo. v. Smith, 22 

Ohio St. 246, p. 288. 
Citizens' Gaslight Heating Co. v. 

O'Brien, 15 Brad. (Ul.) 400, pp. 89, 47, 

(3,66. 
Citizens Gaslight Co. ▼. O'Brien, 118 111. 

174, p. S3. 
City of Aurora ▼. Hillman, 90 III. 66, p. 

10. 
City of Bloomington y. Shrock, 110 111. 

219, pp. 400, 408, 410. 
City of Brownsyille, y. Cayazos, 2 

Woods, 298, p. 197. 
City of Chicago y. McGlyen, 78 111. 847, 

pp. 20, 21, 25, 81. 
City of Decatur y. Fisher, 63 111. 241, 

p. 64. 
City of Eof aula y. Simmons, 86 Ala. 615, 

p. 187. 
City of Goshen y. England, 119 Ind. 868, 

pp. 118, 122. 
City of Indianapolis y. Scott, 72 Ind. 

196, p. 261. 
City of Kansas y. Butterfleld, 89 Mo. 648, 

p. 487. 
City of Fort Wayne y. Combs, 107 Ind. 

76, p. 46, 64. 
City of Parsons y. Lindsay, 26 Kan. 426, 

pp. 8, 20, 82. 
CityofBipon, y. Blttel, 30 .Wis. 614, p. 
• 408. 
City of St. Louis y. Banken, 96 Mo. 189, 

p. 487. 
City of Topeka y. Sherwood, 39 Kan. 

690, p. 14. 
City of Washington, 92 U. S. 81, pp. 288, 

271. 
Claggett y. Ea8terday,42 Md. 617, p. 267. 
Clague y. Hodgson, 16 Minn. 329, p. 267. 
Clapp y. FuUerton, 84 K. T. 190, p. 159. 
Clark y. Baird, 9 N. Y. 188. p. 373. 
Clark y. Bruce, 19 Hun (N. Y.), 274, p. 20. 
Clark y. Bruce, 19 N. Y. bup. Ct. (12 

Hun) 271, p. 807. 
Clark y. Detroit Locomotlye Works, 82 

Mlch.848,pp.61,230,284. 
Clark y. Fisher, 1 Paige Ch. 171, p. 26. 
Clark y. Periam, 2 Atk. 337, p. 169. 
Clark y. Bockland Water Power Co., 62 

Me. 68, p, 21. 
Clark y, Bhodes, 2 Heisk. 2C6, p. pp. 824, 

329. 
Clark y. State, 12 Ohio, 483, pp. 158, 452. 
Clark y. WlUett, 85 Cal. 534, pp. 81, 279. 
Clark y. Wyatt, 16 Ind. 271, p. 810. 



Clary y. Clary, 2 Ired. (N. C.) 78, p. 166. 
Clason y. City of Milwaukee, 80 Wis. 

316, p. 263. 
Claxton's Adm'r y. Lexington, etc B. 

B. Co., 18 Bush (Ky.), 686, p. 278. 
Clegg y. Fields, 7 Jones (N. C.) Law, 37, 

p. 254. 
Clegg y. Leyy, 8 Camp. 156, p. 202. 
Claxton's Admr. v. Lexington, etc. B. 

B. Co., 13 Bush (Ky.), 686, p. 278. 
Clements y. Burlington,. etc. B. B. Co., 

74 Iowa, 442, p. 350. 
Clement y. British Am. Assur. Co., 141 

Mass. 298, p. 251. 
Cleyeland, etc. B. B. Co. y. Ball, 5 Ohio 

St. 668, pp. 20, 867, 870. 
Cleyeland, etc. B. B. Co. y. Newell, 104 

Ind. 264, pp. 116. 117. 
Cleveland, etc. B. B. Co. y. Perkins, 17 

Mich. 296, p. 878. 
Clifford y. Blchardson, 18 Vt. 620, 627, p. 

25. 
Clussman y. Merkel, 8 Bosw. 402, p. 227. 
Cobb y. City of Boston, 109 Mass. 488, 

pp. 351, 860. 
Cobb y. The Griffith, etc. Co. 87 Mo. 94, 

p. 2£6. 
Cobbett y. Kilmlnster, 4 Fob. & Fin. 

490, p. 840. 
Cocks y. Purday, 2 C. A K. 269, p. 204. 
Coffee y. Neely, 2 Heisk 811, p. 200. 
Cohen y. Piatt, 69 N. Y. 848, p. 849. 
Cohen y. Teller, 98 Pa. St. 128, pp. 831, 

888: 
Colbertson, etc. Proyieion Co. v. Chi - 

cago. 111 111. 651, p. 849. 
Cole y. Clark, 8 Wis. 323, p. 20. 
CoUender y. Dinsmore, 56 N. Y. 200, pp. 

271,274. 
Collier y. Simpson. 24 Eng. C. L. 219, pp. 

46,394. 
Collins y. Crocker, 15 Brad. (lU.) 107, p. 

804. 
Collins y. Godefroy, 1 Barn. & Adol. 2^30, 

p. 439. 
Collins y. Stephenson, 8 Gray, 438, p. 89. 
Colt V. People, l Parker Or. Cas. 611, pp. 

127, 128. 
Commonwealth y. Allen, 128 Mass. 46, 

p. 840. 
Commonwealth y. Brayman, 136 Mass. 

488, pp. 11, 159. 
Commonwealth y. Brown, 121 Mass. 69, 

pp. 154, 402. 
Commonwealth y. Brown, 14 Gray, 419, 

p. 156. 
Commonwealth y. Carey, 2 Pick. (Mass.) 

47, p. 3i4. 
Commonwealth y.Chlld.lO Pick.(Ma88.) 

252, p. 445. 



TABLE OF CASES CITED. 



XXI 



Commonwealth v.Ohoate. 106 Mebs, 401, 

p. 279. 
Commonwealth v. Coe, 116 Haas. 481, 

pp. 320, 881. 
Commonwealth v. Coe, 116 Maaa. 604, p. 

Commonwealth v. Doraey, 103 Maaa. 

412, p. 146. 
Commonwealth v. Bastman, 1 Cnah. 

189, p. 888. 
Commonwealth v. Fairbanka, 2 Allen 

(Maaa.), 511, p. 166. 
Commonwealth v. Gravea, 97 Maaa. 116, 

p. 447. 
Commonwealth ▼. Higgina, 6 Kulp. 

(Pa.) 269, p. 487. 
Commonwoalth t. Hobba, 140 Maaa. 448, 

p. 186. 
Commonwealth Y. Kendrtck, 147 Maaa. 

444, p. 185. 
Commonwealth v. Lenox, 8 Brewster, 

249, p. 131. 
Commonwealth v. Marzynaki, 149 Maaa. 

68, 72, pp. 18, 402. 
Commonwealth y. MuUlna, 2 Allen 

(Maaa.), 296, p. 77. 
Ck>mmonwealth y. O'Brien, 134 Maaa., 

196, p. 10. 
Commonwealth y. People, 105 Maaa. 168, 

p. 88. 
Commonwealth y. Piper, 120 Mass. 186, 

p. 127. 
Commonwealth y. Pomeroy, 117 Maaa. 

148, p. 169. 
Commonwealth y. Pope, 1(3 Maaa. 440, 

p. 10. 
Commonwealth Y.Blch, 14 Gray (Maaa.), 

386, pp. 102, 103, 163. 
Commonwealth y. Bogera, 7 Met. (Maaa) 

600, p. 161. 
Commonwealth y. SturtiYant, 117 Maaa. 

122, pp. 8, 10, 12, 122, 187, 144, 402, 406, 

409. 
Commonwealth y. Twitchell, 1 Brewster 

(Pa.), 662, p. 143. 
Commonwealth y. Webster, 6 Cuah. 

(Maaa.) 296, pp. 84, 299, 300. 
Commonwealth y. Wilaon, 1 Gray, 887, 

pp. 166, 402. 
Commonwealth y. Williama, 105 Maaa. 

62, p. 10. 
Comparet y. Jemegan, 5 Blackf. (Ind.) 

375, p. 206. 
Comatock y. Smith, 20 Mich. 338, p. 888. 
Concha y. Murrieta, L. B. 4 Ch. DiY. 

643. p. 226. 
Concord B. B. Co. y. Greeley, 23 N. H. 

287, pp. 26, 860. 
Condit Y. Black well, 19 N. J. Eq. 198, p. 

210. 



Conely y. McDonald, 40 Mich. 160, p. 

444. 
Conhooton Stone Boad Co. y. Buffalo > 

N. Y. & Brie B. B. Co., 10 N. Y. 628, p. 

76. 
Conn. Mut. Life Ina. Co. y. Lathrop, 111 

U. 8. 612, pp. 11, 167. 
Connelly y. Edgerton, 22 Neb. 82, p. 861- 
Conrad y. Griffey, 16 How. (U. 8.) 88, p. 
. 89. 
Conaequa y. Wlllings, 1 Pet. C. C. 226i 

p. 226. 
ConttOlidated Beal Eatate, eto.Co.Y. Ca- 

ahow, 41 Md. 69, pp. 212, 214. 
Continental Ina. Co. y. Delpeaoh,82 Pa. 

St. 225, pp. 6, 89. 
Continental Ina. Co. y. Horton, 28 Mich- 

178, p. 353. 
Conway y. The State, 118 Ind. 490, p. 66. 
Cook Y. Caatner, 9 Cuah. 266, p. 282. 
Cook Y. State, 24 K. J. Law, 843, pp. 26 , 

80,168. 
Cooke Y. England, 27 Md. 14, p. 268. 
Cooper Y. Bockett, 4 Moore P. C. 48, p* 

800. 
Cooper Y. Central B. B. of Iowa, 44 Iowa, 

140, p. 286. 
Cooper Y. Bandall, 69 111. 317, p. 863. 
Cooper Y. State, 53 Miaa. 888, pp. 858, 866. 
Cooper Y. State, 28 Tezaa, 336, pp. 83, 118, 

121, 122. ^ 

Corbett y. Underwood, 88 111. 824, p. 27l. 
Corby y. Weddle, 67 Mo. 422, p. 828. 
Corlis Y. Little, 18 N. J. Law, 232, p. 6. 
Cornelison y. Commonwealth, 84 Ky. 

693, p. 116. 
Corning y. Burden, 12 How. 262, p. 270. 
Cornish y. Farm Buildinga Fire Ina.Co.* 

74 N. Y. 296, pp. 247, 249. 
Coral Y. Maretzek, 4 B. D. Smith (N.Y.), 

1, p. 100. 
Coatello Y. Crowell, 188 Mass. 862, pp. 

829, 881. 
Costello V. Crowell, 139 Maaa. 690, pp. 

820, 381. 
Cottrill Y. Myriok, 12 Me. 222, 281, pp. 20, 

281. 
Couch Y. Charlotte, etc. B. B. Co., 22 S. 

C. 667, p. 18. 
Coughlln Y. Poulaon, 2 MoArthur, 306, p< 

167. 
County of Cook y. Harms, 10 Bradw. 

(111.) 24, p. 378. 
CoYcy Y. Campbell, 52 Ind. 158, p. 381. 
Cowan Y. Beall, 1 MoArthur, 270, p. 461 
Cowlea Y. Merohanta, 140 Mass. 877, p. 

169. 
Cowley Y. People, 83 N. Y. 464, p. 65. 
Coyle Y. Commonwealth, 104 Pa. St. 117. 

pp. 20, 76. 



XXll 



TABLE OF CASES CITED. 



Craig T.Gerrish, 58 N. H. 618, pp. 136, 

191. 
Oralg ▼. NobIe8vlIl«, etc. IL B. Co., 96 

Ind. 109. p. 71. 
Crane v. Crane, 38 Vt. 15, p. 158. 
Crane v. Korthfleld, 88 Vt. IM, p. U. 
Crawford v. State, 2 Ind. 182, p. 845. 
Crawford v. Wolf, 39 Iowa, 568, p. 861. 
Crawford v. Williamson, 48 Iowa, 247, p. 

397. 
Cress well y. Jackson, 2 Fost. A Fin. 34, 

p. 812. 
Crist ▼. State, 21 Ala. 187, p. 818. 
Cromwell y Western Reserve Bank, 8 

Ohio St. 4G6, p. 20. 
Cross y. Lake Shore, etc. Railway Co.,69 

Mich. 868, p. 14. 
Crouse v. Holman, 19 Ind. 30 p. 873. 
Crutchfleld y. Richmond, etc. R. R. Co. 

76 N. C. 820, p. 446. 
Crowe Adm'r y. Peters, 68 Mo. 429, p, 158. 
Crowplly. Kirk, 3 Dey. (K. C.) 858, p. 81. 
Crowley y. People, 83 N. Y. 464, p. 187. 
Culyer y. Dwight, 6 Qray (Mas:*.), 444, p. 

10. 
Cummlngs y. Taylor, 24 Minn. 429, p. 89. 
Cummings y. State, 58 Ala. 887, p. 6. 
Caneo y. Bessoni, 68 Ind. 524, p. 457. 
Curry y. State, 6 Neb. 412. p. 130. 
Cartis y. Martin, 2 N. J. Law, 290, p. 199, 
Curtis y. Gano, 26 N. T. 426, pp. 76, 259. 
Cushman y. U. S. Life Ins. Co., 70 X. Y. 

72, 80, p. 58. 

D. 

Daily y. Fountain, 36 Ala. 26, p. 256. 
Daily y. Multnomah County, 14 Greg. 

20, p. 427. 
Daines y. Hartley, 3 Exoh. 200, p. 19. 
Dairy mple y. Dalrymple, 2 Hagg. 54, 

p. 202. 
Daly y. N. W. Kimball Co., 67 Iowa, 182, 

p. 856. 
Dalzell y. City of Dayenport, 12 Iowa, 

487, p. 358. 
Damess y. Hale, l Otto, 13, p. 198. 
Dana y. Fiedler, 12 N. Y. 40, p. 276. 
Danfortb y. Reynolds, 1 Vt. 265, p. 206. 
Daniels y. Aldrich, 42 Mich. 58, p. 66. 
Daniels y. Hudson RIyer Fire Ins. Co., 

12 Cush. (Mass.) 416, pp. 247, 249, 

274. 
Daniels y. Mosher, 2 Mich. 188, p. 6. 
Darbv y. Ouseley, 1 H. & N. 1, p. 446. 
Darrigan y. New York, etc. R. R. Co., 52 

Conn. 286, p. 117. 
Dauphin y. U. S., 6 Ct. of CI. 269, p. 222. 
Dayenport y. Ogg, 16 Kan. 863, p. 90. 
Dayidson y. St. Paul, etc. R. R. Co., 84 

Minn. 51. p. 287. 



Dayidson y. Stanley. 2 M. ft G. 721, p. 

445. 
Dayls y. Charles Riyer Branch R. R. Co., 

11 Cush. 506, p. 860. 
Dayis y. Marlborough, 2 Swanson, 118, 

p. 887. 
Dayis y. ft! ason, 4 Pick. 166, p. 264. 
Dayis y. Rogers, 14 Ind. 424, p. 199. 
Dayis y. State, 38 Md. 15, pp. 20, 69, 127, 

401, 406. 
Dayis y. State, 35 Ind. 496, pp. 39, 66, 72, 

80, 86, 108, 445. 
Dawson y. Callaway, 18 Ga. 578, p. 6. 
Day y. State, 63 Ga. 667, p. 179. 
DeArmand y. Neasmith, 82 Mich. 28J, p. 

892. 
DeBerry y. C. C. R. R. Co., 100 N. C. 310, 

315 (1888), p. 26. 
DeDost Aly Khan, 6 Prob. Div. (L. R.) 

6, p. 216, 220. 
DeLa Motte's Case, 21 How. St. Tr. 810, 

p. 286. 
De Pue y. Place, 7 Pa. St. 429, p. 331. 
De Phul y. State, 44 Ala. 39, pp. 85, 99. 
Dean y. Ayeling, 1 Robertson, 279, p. 178. 
Dean y. McLean. 48 Vt. 412, p. 269. 
Del., etc. Steam Tow-boat Co. y. Starrs, 

69 Pa. St. 86, pp. 89, 40, 66, 230, 445. 
Delano y. Jopllng, 1 Litt. (Ky.) 417, p. 

197. 
Demeritt y. Randall, 116 Mass. 831, p. 

299. 
Dennis y. Weeks, 51 Ga. 214, p. 167. 
Denton y. State, 1 Swan (81 Tenn.), 279, 

pp. 114, 115. 
Denton y. Smith, 61 Mich. 431, p 849. 
Detroit, etc. R. R. Co. y. Van Steinberg, 

17 Mich. 99, p. 240. 244. 
Detweiler y . Groff, 10 Pa. St. 376, p. 267. 
Deyenbagh y. Deyenbagh, 6 Paige, 564, 

pp. 172, 173, 174, 176. 
De Witt y. Bailey, 17 N. Y. 344, pp. 10, 

158. 
De Witt y. Bailey, 9 N. Y. 871, p. 156. 
Dexter y. Hall, 16 Wall. 9, pp. 61, 64. 
Dickenson y. Barber, 9 Mass. 218, p. Hi. 
Dickenson y. Fitchburg, 13 Gray, 546, 

pp. 8, 6, 84, 360, 351. 
Dickinson y. Gay, 7 Allen (Mass.), 29, 

p. 271. 
Dickie y. Van Bleck, 5 Redf. (N. Y.) 884, 

p. 67. 
Dleken y. Johnson, 7 Ga. 484, p. 158. 
Dietz y. Nat. Bank, 09 Mich. 222, pp. 820, 

828,348. 
Dillard y. State, 58 Miss. 868, pp. 20, 148, 

145, 267. 
Dillebar y. Home Life Ins. Co., 87 N. Y. 

79, pp. 66, 66, 79. 



TABLE OF CASES CITED, 



XXlll 



Dl Bora y. PbllllpB, 10 H. L. Gas. 624, p. 

276. 
DlTislon of Howard County, 16 Kan. 194, 

p. 197. 
Dobson y. Wtaisenhant, 101 N. C. 640, p. 

SS6. 
Dodge y. Coffin, 15 Ean. 277, p. 200. 
Doe y. Beynon, 12 A. A B. 481, p. 286. | 
Doe y. Bslaya, 11 Ala. 1028, p. 197. 
Doe y. Roe, 81 Ga. 009, p. 289. 
Doe y. Suckenmore, Ad. A £1. 708, p. 

802, 310. 
Doe y. Taryer, B. Jk M. 141, p. 810. 
Doe y. WiUon, 10 Moore, P. C. 502, p. 840. 
Dolan y. City of Moberly, 17 Mu. App. 

486, p. 189. 
Dole y. Jobnson, 50 N. H. 452. pp. 48, 64, 

402. 
Dolpb y. Barney, 6 Oreg. 191, p. 197. I 

Dolz y. Morris, 17 N. Y. Sup. Ct. 202, pp. < 

61, 280. I 

Donaldson y. Mlssisalpj)!, etc R. B. Co., | 

18 Iowa, 281, pp. 387, 892, 396. i 

Donnelly y. Fltcb, 186 Mass. 008, pp. 20, 

266. I 

Doran y. Mailer, 78 111. 343, p. 88. 
Dorsey y. Dorsey, 5. J. J. Marsb. (Ky.) I 

280, p. 199. I 

Dorsey y. Warfleld, 7 Md. 65, p. 108. 
Doster y. Brown, 25 Ga. 24, p. 208. ' 

Dougberty y. Snyder, 15 8. & B. 80, pp. 

901, 213. 
Doye y. State, 00 Tenn. 348, pp. 80. 108. 
Dow y. Julien, 82 Kan. 676, p. 16. 
Dow y. Spenny, 29 Mo. 887, p. 828. 
Dowd y. Gutbrie, 18 111. App. 668, p. 20. 
Downs y. Sprague, 1 Abbott's Ct. of 

App. DeclS. (K. Y.) 050, p. 270. 
Drake y. Gloyer, 30 Ala. 882, p 199. 
Dubois y. Baker, 80 N. Y. 855, pp. 297, 299, 

800, 301, 329. 
Dncbess of Kingston's Case, Hargr. St. 

Tr. 243, 20 How. St. Tr. 613, p. 105. 
Ducbess Di Siora's Case, 10 House of 

Lords' Cases, 640, p. 228. 
Duncan y. Seeley, 81 Mlcb. 869, p. 89. 
Dundas y.'City of Lansing, 70 Miob. 499, 

118. 
Dungan y. Beard, 2 N. ft M. 400, p. 289. 
Danbam*s Appeal, 27 Conn. 198, p. 70. 
Dunbam y. Simioons, 8 Hill (N. Y.). 609, 

p. 867. 
Duntc y. Van Beuren, 12 N. Y. Sup. Ct. 

648, p. 190. 
Darrell y. Bederly,'Holt N. P. Cas. 283, 

p. 247. 
Durst y. Burton, 47 X. Y. 167, p. 848. 
Dusbane y. Benedict, 120 U. 8. 647, p. 192. 
Dyer y. Dyer, 87 Ind. 13, p. 12. 



Dyer y. Morris, 4 Mo. 214, p. 90. 
Dyer y. Bosentbal, 46 Mlcb. 588, p. 850. 
Dyer y. Smitb, 12 Conn, 885, pp. 199, 226. 
Dyson y. N. Y., etc. R. B. Co., 07 Conn. 9, 
p. 883. 

E. 

Eagan y. Cowen. 89 Law TInaes, 228, in 

Ir. Ex., p. 812. 
Eagle, etc. Manuf. Co. y. Brown, 58 Ga. 

240, p. 879. 
Earl Nelson y. Lord Bridgport, 8 Beay. 

027,p.2u2. 
East Tennessee, etc.. R. B. Co. y. 

Wrigbt, 76 Ga. 682, p. 15. 
Eaton y. Smitb, 20 Pick. (Mass.) 166, p. 

274. 
Eborn y. Zlmpleman, 47 Tex. 008, pp. 

814,381, 884. 
Ebos y. State, 84 Ark. 020, pp. 84, 121, 130. 
Eckert y.St. Louis, etc. B. B.Co.,18 Mo. 

App. 352, p. 287. 
Ecles y. Bates, 26 Ala. 660, pp. 116, 121. 
Eddie y. East India Co., 2 Burr. 1226, p. 

196. 
Edelen y. Gougb, 8 Gill (Md.), 87, p. 287. 
Edelin y. Sander's Exrs., 8 Md. 118, p. 

801. 
Edington y. ^tna Life Ins. Co., 77 N. Y. 

064, pp. 106, 107,108,121. 
Edmonds y. City of Boston, 106 Mass. 

535, pp. 861, 370. 
Eggers y. Eggers, 07 Ind. 461, p. 407. 
Eggler y. People, 06 N. Y. 642, p. 180. 
Eisfleld y. Dill, 71 Iowa, 442, p. 800. 
Elfelt y. Smitb. 1 Minn. 126, p. 884. 
Elliott y. Russell, 92 Ind. 526, pp. 61, 71. 
Elliott y. Van Buren,83 Mlcb. 49, p. 116. 
Ellingwood y. Bragg, 62 N. H. 488, pp. 6, 

807. 
Elting y. Sturteyant, 41 Conn. 176, p. 879. 
Elton y. Larkins, 6 C. & P. 885. p. 247. 
Ely y. James, 128 Mass. 36, p. 227. 
Ely y. Tescb. 17 Wis. 202, p. 492. 
Emerson y. Lowell Gas Llgbt Co., 6 

Allen, 146, pp. 58. 103. 
Emery y. Berry, 8 Foster (N. H.), 473, p. 

205. 
Emery y. Baleigb, etc. R. R. Co., 102 N. 

C. 217, p. 245. 
Emmons y. Minneapolis, etc. R. R. Co., 

41 Minn. 133, p. 370. 
Empire Manuf. Co. y. Stuart, 46 Miob. 

482, p. 288. 
Ennls y. Smitb, 14 How. 400, pp. 200,206. 
Enrigbt y. Tbe Railroad Co., 83 Cal. 230, 

p. 10. 
Epps y. Tbe State, 102 Ind. 089, pp. 78, 

400. 



XXIV 



TABLE OP CASES CITED. 



Srd T. Chicago, etc. R. B. Co., 41 Wis. 

64. p. 378. 
Erlokson v. Smith, 2 Abb. Ap. Decis. (N. 

Y.)64,p.l87. 
Srrlsmaii v. Erri8maD,25 111. 186, p. 90. 
Brwin y. Clark, 18 Mich. 10, p. 271. 
Estate of Brooks, 64 Cal. 471, p. 168. 
Bstate of Toomes, 54 Cal. 510, p. 16i. 
Erans ▼. Commercial Ins. Co., 6 R. I. 47, 

p. 274. 
Evans ▼. People, 12 Mich. 27, pp. 11, 27, 

191. 
Evans ▼. Beynolds, 82 Ohio St. 168, p. 

199. 
Bvansvllle, etc. B. B. Co. v. Crist, 116 

Ind. 446, p. 188. 
Bvansvllle R. B. Co. y. Fitspatrlok, 10 

Ind. 120, pp. 20, 867, 369. 
Evansyllle, etc. B. B. Co. v. Young, 28 

Ind. 616, p. 272. 
Bvarts v. Mlddlebury, 58 Vt. 626, p. 278. 
Everett v. The State, 62 Qa. 65, p. 108. 
Exchange Bank y. Coleman, 1 W. Va. 

68, p. 271. 
SxparU Dement, 68 Ala. 389, p. 488. 
Ex parte ThlBtlewoo^t 19 Vesey, 236,p. 

886. 
Bx parte Whitehead, 1 Merivale, 127, p. 

886. 
Byerman t. Sheehan, 02 Mo. 221, pp. 9, 

279. 

F. 
Falrbank v. Hughson, 58 Cal. 814, p. 89. 
Fairchlld v. Bascom, 85 Vermont, 898, 

pp. 18, 69,81, 88, 101, 104, 166. 
Fairley v. Smith. 87 N. C. 867, p. 851. 
Farmers' Ins. Co. v. Bair, 87 Pa. St. 124, 

p. 88. 
Farr v. Swan, 2 Pa. St. 245, p. 256. 
Farrell v. Brennan, 88 Mo. 828, pp. 81, 

165. 
Faulkner v. Hendy, 79 Cal. 266, p. 442. 
Fayette v. ChestervlUe, 77 Me. 28, pp. 65, 

162, 168. 
Feaubert v. Turst, Pre. Gh. 207, p. 196. 
Fee V. Taylor, 88 Ky. 259 (1885), p. 825. 
Fenwlck v. Bell, 1 Car. A Eer. 311, pp. 

280,234. 
Fenwick v. Beed, 6 Md. 7, p..286. 
Ferguson v. Clifford, 87 N. H. 86, p. 225. 
Ferguson v. Davis Co., 67 Iowa, 601, p. 

189. 
Ferguson v. Hubbell, 97 N. Y. 507, 618, 

pp. 23, 26. 
Ferguson v. Hubbell, 26 Hun (N. Y.)^ 

250, p. 265. 
Ferguson v. Stafford, 83 Ind. 162, p. 873. 
Fielder v. Collier, 18 Ga. 496, p. 158. 
FUer v. N. Y. Cent. B. B. Oo., 49 N. Y. 42, 

pp. 66, 121, 122. 



FUley y. BiUings, 42 N. W. Bep. 718, p. 

267. 
First Baptist Church v. Brooklyn Fire 

Ins. Co., 28 X. Y. 168, p. 274. 
First Nat. Bank of Houghton y. Bobert, 

41 Mich. 109, pp. 828, 840. 
First National Bank v. WIrebach, 106 

Pa. St. 87, 44, p. 8. 
Fish y. Dodge, 4 Denio (N. Y.), 811, p. 

867. 
Flshburne v. Ferguson, 84 Va. 67, p. 158. 
Fitts V. C. C. B. B. Co., 59 Wis. 828, p. 

241. 
Fitzgerald v. Hay ward, 60 Mo. 516, p. 6. 
Flanders v. Colby, 28 N. H. 34, p. 446. 
Fleming v. Delaware, etc. Canal Co., 8 

Hun (N. Y.),858,p.867. 
Fletcher v. Seekel, 1 B. I. 267, p. 486. 
Florey's Ezrs. v. Florey, 24 Ala. 247, p. 

168. 
Flynn v. Wahl, 10 Mo. App. 682, p. 878. 
Flynt V. Bodenhamer, 80 N. C. 206, 207, 

pp. 89, 54, 121, 445, 472. 
Fogg V. Dennis, 8 Humph. 47, p. 829. 
Folkes V. Chadd, 3 Doug>as (26 Eng. C. 

L. 63), 176, pp. 20, 262, 268. 
Foltz y The State, 88 Ind. 216, p. 10. 
Forbes v. Caruthers, 3 Yeates (Penn.), 

627, pp. 6, 20, 254. 
Forbes v. Howard, 4 R. I. 366, p. 851. 
Forchelmer v. Stewart, 73 Iowa, 216, p. 

288. 
Ford V. mrrell, 9 Gray (Mass.), 401, p. 

262. 
Forest City Ins. Co. v. Morgan, 22 111. 

App. Ct. Bep. 199, pp. 400, 408. 
Forgery y. First National Bank, 66 Ind. 

123, pp. 89, 53, 445. 
Forsythe v. Doolittle, 120 U. S. 78, pp. 

89, 77, 487. 
Forsythe y. Freer, 62 Ala. 448, p, 199. 
Fort V. Brown, 46 Barb. (N. Y.)366, p. 

115. 
Foster v. Brooks, 6 Ga. 290, pp. 158, 167. 
Foster v. Collner, 107 Pa. St. 806, pp. 

824, 829. 
Foster v. Taylor, 2 Over. 191, p. 200. 
Foster v. Ward, 75 Ind. 594, p. 858. 
Fountain v. Brown, 38 Ala. 72, p. 190. 
Fowler v. County Commlsaloners, 6 

Allen, 92, p. 850. 
Frank v. Chemical Nat. Bank, 87 N. Y. 

Sup. Ct. 80, p. 294. 
Frankfort, etc. B. B. Co. v. Windsor, 51 

Ind. 240, p. 873. 
Franklin Fire Ins. Co. v. Qrover, 100 Pa. 

St. 266, pp. 27, 28, 249. 
Frantz v. Ireland, 66 Barb. 386, p. 280. 
Frary v. Gusha, 59 Vt. 267, p. 82. 



TABLE OF CASES CITED. 



XXV 



Fraaer y. Jennlson, 42 Mloh. 206, pp. 11, 

67, 91, 92, 109, 167. 168, 418. 
Fraaer v. Tapper, 29 Vt. 409, pp. 81, 266. 
Freeman v. People, 4 Dento, 9, p. 169. 
Freeman T.Travelera* Ins. Co. 144 Maaa. 

672, p. 289. 
Freemoult ▼. Dedlre, 1 P. Wma. 480, p. 

196. 
Fremont, etc. B. B. Oo. v. Mar]ey,26 

Neb. 188, p. 867. 
Fremont, eto. B. B. Co. v. Whalen, 11 

Neb. 688, p. 870. 
Frith T. Barker, 2 Johns. (N. Y.) 884, p. 

271. 
FrlzzeU ▼. Beed, 77 Qa. 724, p; 168. 
Frost ▼. Blanchard. 97 Mass. 166, p. 6. 
FuUer t. Fox, 101 N. C. 119, p. 628. 
Folton y. Hood, 84 Pa. St. 866, p. 8C0. 
Fanston v. Chicago, etc. B. B. Co., 61 

Iowa, 462 (1888), p. 7. 

G. 

G V. G (L. B.), 2 Prob. A Dlv. 287, 

pp. 172, 176. 
Gaines v. 8tUe8,'14 Pet. 322, p. 446. 
Gale T. Spooner, 11 Vt. 162, p. 446. 
Galena, etc. B. B. Co. t. Haslem, 78 111 . 

494, p. 878. 
Gallager v. Market St. By. Co., 67 Cal. 

13, pp. 391, 889, 408. 
Gallagher T. The People, ISO 111. 179, 

182, p. 11. 
Gardner y. Lewis, 7 GIU (Md.), 379, p. 

205. 
Gardner y. People, 6 Parker Cr. Cas. 

166, p. 127. 
Garfield y. Kirk, 66 Barb. (N. Y.) 464, p. 

881. 
Garret's Case, 71 N. C. 68, p. 177. 
Garrells y. Alexander, 4 Bap. 87, p. 287. 
Gartslde y. Conn. Mot. Life Ins. Co., 76 

Mo. 446, pp. 106, 109. 
Garyey y. Owens, 87 Hun (N. Y.), 496, p. 

290. 
Garyln y. State, 62 Miss. 209, p. 329. 
Garwood y. N. Y. Cent., etc. B. B. Co., 

45 Han, 128, p. 892. 
Gassenhelmer y. State, 52 Ala. 814, p. 6. 
Gates y. Fleischer, 67 Wis. 504, p. 71. 
Gauntlet y. Whltworth, 2 C. & K. 720, p. 

882. 
Gaylsk y. Pacific B. B., 49 Mo. 274, pp. 

25, 29, 289. 
Gay y. Union Mat. Life Ins. Co., 9 

Blatch, 142, p. 485. 
Gaylor's Appeal, 48 Conn. 82, p. 227. 
Gelsendorf y. Eagles, 106 Ind. 38, p. 80. 
Gere y. Councils Bluff Ins. Co., 67 Iowa, 

272, pp. 266, 366. 



GetoheU y. Hill, 21 Minn. 464, pp. 71, 490, 

492. 
Geylln y. Vlllerol, 2 Houston (Del.), 811, 

p. 276. 
Gibbon y. Budd, 82 L. J. Ex. 182, p. 884. 
Gibbon y. Budd, 2 H. ft C. 92, p. 884. 
Gibson y. Cincinnati Enquirer, 5 Cent. 

L. J. 880 (U. 8. Circuit Ct. South. 

Dist. Ohio), pp. 273, 277. 
Gibson y. Gibson, 9 Yerg. (Tenn.) 829, 

pp. 81, 166, 188, 166. 
GWyert y. quild, 144 Mass. 601, p. 261. 
Gilbert y. Kennedy, 22 Mich. 117, p. 864. 
Gilbert y. Simpson, 6 Daly (N. Y.), 80, p. 

340. 
Gilman y. Town of Strafford, 50 Vt. 726, 

p. 72. 
Gilpin y. Consequa, 3 Wash. 184, p. 849. 
Qltchell y. By an, 24 App. Ct. 876, pp. 

325, 328. 
Goddard y. Gloninger, 5 Watts, 209, p. 

289. 
Goldstein y. Black. 50 Cal. 464, pp. 298, 

296. 
Goldsmith y. Sawyer, 46 Cal. 209, p. 197. 
Goods y. Bonnelll, 1 Prob. Diy. (L. B.) 

69, p. 222. 
Goods y. Hindmarch, 1 P. & M. 307, p. 

801. 
Goodsall y. Taylor, 41 Minn. 207, p. 288. 
Goodtitle y. Braham, 4 Term, 497, p. 299. 
Goodwin y. Jack, 62 Me. 414, p. 286. 
Goodwin y. State, 96 Ind. 600, pp. 9, 66, 

168,477,486. 
Goodwin y. Scott, 61 N. ^ 112, p. 40. 
Goodyear y. Vosburgh, 68 Barb. (N. Y.) 

154, pp. 299, 306. 
Gordon y. Price, 10 Ired. (N. C.) 886, pp. 

289,346. 
Goshen y. England (tnd.),21N. E. Bep. 

977, p. 190. 
Gossler y. Eagle Sugar Beflnery, 103 

Mass. 331, 336, pp. 57, 146. 
Gotlieb y. Hartman, 8 Colo. 53, p. 66. 
Gonld y. Jones, 1 W. Bl. £84, p. 288. 
Gourley y. St. Louis, etc. B. B. Co., Mo. 

App. 87 (1889), p. 244. 
Grail y. Tower, 85 Mo. 249, p. 109. 
Grand Baplds, etc. B. B. Co. y. Ellison, 

117 Ind. 234, 241, p. 38. 
Grand Baplds, etc. B. B. Co. y. Huntley, 

38 Mich. 587, pp. 118. 117, 238, 245. 
Grand Baplds, eto. B. B. Uo. y. Martin, 

41 Mich. 667, p. 109. 

Grand Baplds y. B. B. Co., 58 Mich. 642, 
p* 370. 

Grant y. Thompson, 4 Conn. 208, pp. 

166, 169. 

Grattan y. Metropolitan Life Ins. Co., 

92 N. Y. 274, p. 108. 



XXVI 



TABLE OF CASES CITED. 



Gray 68 v. Keaton, 8 Coldw. (48 Tenn.) 

8, p. 197. 
Great Western R. R. Co. v. Haworth, 39 

111. 349, p. 290. 
Greeley y. Btill8on.27 MIoh. 1S3, p. 860. 
Green y. Asplnwall, 1 Olty Hall Re- 
corder, 14, p. 392. 
Gregory y. MoDowel, 8 Wend. 435, p. 

849. 
Gribble y. Pioneer Press Co., 87 Minn. 

277, p. 19. 
Griflen y. Rice, 1 Hilton (N»Y.),184, p. 

272. 
Grtffln y. Town of Willow, 48 Wis. 509. 

p. 6. 
Grifflch y. Spratley, 1 Cox. Cb. 889, p. 

886. 
Grlgsby y. Clear Lake Water Co., 40 

Cal. 406, pp. 252, 449, 452. 
Grinnell y. Chicago, etc. R. R. Co., 78 

Iowa, 93, p. 240. 
GriBwold y. New York, etc. R. R. Co., 

23 N. T. Sup. R. 729, p. 188. 
Griswold y. K. Y. Central R. R. Co., 115 

N. Y. 61, p. 122. 
Grabb y. State, 117 Ind. 277. p. 157. 
Guetig y. State, 66 Ind. 94, pp. 66, 77, 163, 

492. 
Guggenbeim y. Lake Shore, etc. R. R. 

Co., 66 Mich. 150, pp. 244, 245. 
Galf City Ins. Co. y. Stephens, 52 Ala. 

121, p. 89. 
Guiterman y. Liyerpool, etc. Steamship 

Co., 83 N. Y. 356, pp. 61, 64, 71, 75, 231. 
Gurney y. Langlands, 6 Barn. & Aid. 880, 

p. 462. 
Gatridge y. Missouri, etc. R. R. Co., 94 

Mo. 468, p. 26. 

H. 

H V. P (L. R.), 8 Prob, A Dlv. 126, 

pp. 172, 176. 
Haas y. Choussard, 17 Tex. 692, p. 257. 
Hagadorn y. Conn. Mat. Life Ins. Co., 

22 Hun (N. Y.). 249, pp. 70, 7L 
Hagaman y. Moore, 84 Ind. 496, p. 869. 
Haggerty y. Brooklyn, etc. R. R. Co., 61 

N. Y. 73, 83. 
Halght y. Ktmbak, 51 Iowa. 18. p. 866. 
Halsb y. Payson, 107 111. 865, pp. 67, 381. 
Hale y. New Jersey Steam Nay. Co., 15 

Conn. 549, p. 226. 
Hale y. Ross, 3 N. J. Law, 373. p. 210. 
Haley y. State, 63 Ala. 89, p. 274. 
Hall y. Co8tello,48 N. H. 176. p. 217. 
Hall y. Huse, 10 Mass. 89, p. 820. 
Hall y. People, 39 Mich. 717, p. 446. 



' Hall y. Van Vranken, 28 Hun, 408, pp. 
! 288, 815, 816. 

I Ham y. Salem, 100 Mass. 850, p. 850. 
I Hamel y. Panet, 3 Quebec Law R. 178, 
I p. 301. 

I Hames y. Brownlee, 68 Ala. 277, p. 6. 
Hamilton y. Des Moines Valley R. R. 

Co.,36Iowa,.31, p. 20. 
Hamilton y. Nickerson. 8 Allen (Mass.) , 

851. p. 272. 
Hamilton y. People, 29 Mich. 173, p. 447. 
Hammond y. Schiff, 100 N. C. 161, p. 54. 
Hammond y. yarian,54 N. Y. 898, p. 289. 
Hammond y. Woodman, 41 Me. 177, p. 

257. 
Hand y. Brookline, 126 Mass. 824, pp. 

57, 59, 279. 
Handy. Church, 39 Hon (N. Y.), 804, p. 

45. 
Haney y. Clark, 65 Texas, 93, p. 11. 
Hanoyer Water Co. y. Ashland Iron 

Co., 84 Penn. St. 284. p. 873. 
Hancock y. State, 18 Tex. Ct. of App. 97, 

p. 297. 
Hanriott t. Sherwood, 82 Va. 291, pp. 

328,880. 
Hardin y. Sparks, 70 Texas, 429^ p. 57. 
Hardy y. Merrill, 66 N. H. 227, pp. 166, 

187. 
Harford y. Morris, 2 Hagg. 480, p. 202. 
Harford County y. Wise (Md.), 18 AtL 

Rep. 31, p. 13. 
Harlsnd y. LUlenthal, 58 N. Y. 488, pp. 

881-382. 
Harnett y. Garyey, 66 N. Y. 641, pp. 66, 

880. 
Harrington y. Fry, 1 C. A P. 289, p. 288. 
Harris y. Detroit City Railway Co., 76 
Mich. 227, p. 116. 
I Harris y. Detroit, etc. R. R. Co. (Mich.), 
\ 42 N. W. Rep. Ill, p. 191. 
I Harris y. Panama R. R. Co., 3 Bosw. 1, 
I p. 408. 

Harris y. Rathbun, 2 Abbott (Ct. of 
1 App. Decl8.).328,p.274. 
I Harris y. State, 18 Tex. Ct. of App. 887, 
I pp. 158, 161. 

Harris y. Township of Clinton. 64 Mich. 
! 457, p. 39. 

! Harrison y. Gloyer, 72 N. Y. 451, p. 860. 
I Harrison y. Harrison, 4 Moore, P. 0. 96, 
I p. 176. 
I Harrison y. Iowa, etc. R. R. Co., 36 

Iowa. 828, p. 869. 
, Hart y. Hudson Riyer Bridge Co., 84 

N. Y. 66, pp. 251, 258. 
I Hart y. Vidal, 8 Cal. 56. p. 881. 
Hartford Protection Ins. Co. y. Harmer, 
2 Ohio St. 452, pp. 21, 217, 248. 



TABLE OF CASES CITED. 



XXVll 



Hartmao y. Keystone Ins. Co., 21 Pa. 

St. 466, pp. 347, 248, 349. 88& 
Haryester Oo. v. Miller, 73 M lob. 366, p. 

320. 
Harvey v. State, 40 Ind. 616. p. 418. 
Hasktns v. Hamilton M ut. Ins. Co., 6 

Gray (Mass.), 432, p. 864. 
Hasklns v. Warren, 116 Haas. 614, p. 371. 
Hastings y. Rider, 99 Mass. 632, pp. 101, 

166, 168, 162. 
Hastings y. Steamer Uncle Sam, 10 Gal. 

841, p. 20. 
Hatch V. State, 6 Tex. Ot. of App. 884, p. 

814. 
Hattaaway's Admr. v. National Life Ins. 

Co.. 48 Vt. 886, pp. 66, 77, 99, 101, 160. 
Haulenbe k y. Cronkrlght, 28 N. J. Bq. 

418, p. 873. 
Haven v. Markstrntn. 67 Wis. 493, p. 448. 
Haver v. Tenney, 86 Iowa, 80, p. 362. 
Hiiverblll Loan, etc. Ass. v. Cronln, 4 

Allen (Mass.), 141, p. 86. 
Hawes v. N. E. Ins. Oo., 2 Curtis C. 0. 

229, pp. 247, 248, 250. 
Hawkins v. Grimes, 13 B. Mon. 260, p. 

828. 
Hawkins v. State, 26 6a. 207, p. 6. 
Haycock v. Qrenp, 67 Pa. St. 438, p. 329. 
Hayes v. Ottawa, Oswego, etc. B. R. 

Co., 64 lU. 878, p. 378. 
Hayes v. Wells, 34 Md. 613, pp. 6, 460. 
Haynes v. Mosber, 16 How. Pr. 316, p. 

443. 
Hays V. Ottawa, etc. B. B. Co., 64 111. 878, 

p. 370. 
Hayward v. Knapp, 38 Minn. 480, pp. 

286,269. 
Haywood v. Rodgers, 4 Bast, 690, p. 347. 
Hazelton v. Union Bank, 82 Wis. 47, p. 

829. 
Hazen v. Smiley, 28 Kan. 278, p. 850. 
Hazzard v. Vlckery, 78 Ind. 64, pp. 819, 

828. 
Heacock v. State, 13 Tex. Ct. of App. 97, 

pp. 40, 58,66. 
Head v. Hargrave, 106 U. S. 46, p. 881, 

489. 
Heald v. Thing, 46 Me. 893, pp. 2, 68, 89, 

118, 116, 162, 300. 
Heard v. State, 9 Tex. Ct. of App. 1, 

p. 814. 
Heam v. New England Mat. Ins. Co., 3 

CUflordO. O. 818,p. 374. 
Heath v. GUsan, 3 Oregon, 67, p. 149. 
Heath v. Watts Prerog. 1796 1 Oases 

Eng. Ecc. Ots. 48, note b., p. 810. 
Heathcote v. Palgnon, 3 Brown's Ob. 

167, p. 886. 
Hebard v. Myers, 5 Ind. 94, p. 200. 
Heldt y. State, 20 Neb. 492, p. 447. 



Hemphill v. Bank of Alabama, 6 Sm. A 

M. (Miss.) 44, p. 199. 
Hempstead v. Beed, 6 Conn. 48, p. 199. 
Henderson v. Hackney, 16 Qa. 636, p. 

838. 
Henry v. Hall, 13 111. App. 848, pp. 61, 76. 
Herrlck v. Swomley, 66 Md. 440, pp. 826, 

338. 
Hess y. Lowrey (Sap. Ot. Ind. 1890), 7 L. 

B. A. 90, p. 184. 
Hess V. Ohio, 6 Ohio, 6, pp. 844, 846. 
Heoston y. Simpson, 116 Ind. 63. p. 106. 
Hewlett V. Wood, 66 N. T. 634, p. 168. 
Hickman v. State, 88 Tex. 191, p. 166. 
Hicks V. Person, 19 Ohio, 427, p. 822. 
Hlgbe V. Guardian Mat. Life Ins. Oo., 68 

N. Y. 608, p. 189. 
Hlgglns V. Carlton, 28 Md. 116, pp. 6, 20. 
Hlgglns y. Dewey, 107 Mass. 494, pp. 81, 

266. 
Hlgglns V. Downs, 76 Me. 346, pp. 66. 67. 
Hill y. King Manufacturing Co., 79 Ga. 

106, p. 18. 
Hill V. Lafayette Ins. Co., 2 Mich. 476* 

pp. 346,247; 8. O., 3 Benn. Fire Ins. 

Cas. 836, p. 247. 
Hill V. PorUand, etc. B. B. Oo., 66 Me. 

489, pp. 16,61, 248. 
HIU y. Sturgeon, 28 Mo. 833, p. 284. 
Hill y. City of Kansas, 8 Mo. 638, p. 487. 
Hills V. Home Ins. Co., 139 Mass. 846, 

pp. 40, 863. 
HUsley V. Palmer, 83 Hun, 472, p. 848. 
Hilton y. Mason, 93 Ind. 167, p. 30. 
Hinckley v. Kerstlng, 21 111. 247, p . 367. 
Hlne V. New York, etc. B. B. Co., 36 

Hun, 293, p. 870. 
Hitchcock v. Chicago, etc. B. B. Oo., 66 

Mich. 76, p. 491. 
Hitchcock V. Olendlnen, 12 Beav. 634, 

p. 219. 
Hoard v. Pec^, 66 Barb. (N. Y.) 303, pp. 

64, 118. 
Hoarey. Sllverlock, 12 Ad. A £1. (N. S.), 

624, p. 273. 
Hobbs V. Memphis, etc. B. B. Co., 66 

Tenn. 874, p. 200. 
Hobby V. Dana, 17 Barb. (K. Y.) Ill, pp. 

247, 350. 
Hockmoth v. Des Grand Champs, 71 

Mich. 520, p. 265. 
Hoener v. Kock, 84 111. 408. p. 149. 
Hoes V. Van Alstyne, 30 111. 203, pp. 206, 

312. 
Hoffman v. Click, 77 N. O. 566, p. 380. 
Holtt V. Moulton, 1 Foster, 686, p. 863. 
Holonmb v. Holcomb, 95 N. Y. 816, pp. 

156, 169. 
Holden v. Boblnson Co., 65 Me. 316, p. 6. 
HoUlman v. Oabanne, 43 Mo. 668, p. 6. 



XXVIU 



TABLE OF CASES CITED. 



Holman y. King, 7 Met. (Haas.) 884, p. 

226. 
Homer y. Dorr, 10 Mass. S6, p. 272. 
Homer y. Tannton, 6 H. A N. 661, p. 273. 
Homer y. Wallls, 11 Mass. 812, pp. 820, 

329. 
Hoop y. StoyaU, 26 Ga. 704, p. 121. 
Hooper y. Moore, 5 Jones N. 0. Law, 

180. p. 226. 
Hope y. Troy, etc. B. R. Ck>., 40 Han, 438, 

p. 112. 
Hopkins y. Indianapolis, etc. B. B. Co., 

78 Ul. 82, p. 16. 
Hoppe y. Ohicairo, eto. B. B. Co., 61 Wis. 

857, p. 245. 
Hopper y. Ashley, 15 Ala. 468, p. 286. 
Hopper y. Commonwealth, 6 Qratt. 

(Va.) 681, p. 90. 
Hopper y. Ladlam, 41 N. J. Law, 182, 

p. 880. 
Hopt y. Utah, 120 U. S. 481, p. 181. 
Home Tooke's Case, 25 How. 8t. Tr. 71, 

p. 287. 
Home y. Williams, 12 Ind. 824, pp. 81, 87. 
Horton y. Chadbonme, 81 Minn. 832, p. 

89. 
Horton y. Green, 64 N. C. 64, p. 101. 
Hosford y. Nichols, 1 Paige (N. Y.), 220, 

pp. 198, 199. 
Hough y. Cook, 69 111. 381, pp. 851, 863. 
Houghton y. Jones, 1 Wallace, 702, p. 

88. 
House y. Fort, 4 Blackf. (Ind.) 298, p. 

198. 
Houston, eto. B. B. Co. y. Borke, 55Tez. 

824, p. 362. 
Houston, etc. B. B. Co. y. Smith » 52 Tex. 

178, p. 6. 
Hoyey y. Chase, 62 Me. 804, p. 77. 
Hoyey y. Sawyer, 5 Allen (Mass.), 554, 

pp. 25, 80. 
Howard y. Great Western, etc. Co., 109 

Mass. 884, p. 46. 
Howard y. Patrick, 43 Mich. 122, pp. 328, 

842. 
Howard y. Providence, 6 B. I. 616, pp. 

40,445. 
Hoyt V. Hoyt, 112 N. T. 493, pp. 109, 110, 

111. 
Hoyt y. Long Island B. B. Co., 57 N. Y. 

678, p. 248. 
Hoyt y. Nell, 18 Minn. 890, p. 199. 
Hubbard y State, 7 Ala. 164, p. 191. v 
Hubble y. Osborne, 81 Ind. 249, p. 91. 
Hudson y. Draper, 5 Fisher Pat. Cas. 
266, p. 270; 8. c, 4 Clifford, 181, p 270. 
Hudson y. State, 61 Ala. 884, p. 878. 
Huff y. Hall, 56 Mich. 456. p. 872. 
Huff y. Nims, 11 Neb. 364, p. 840. 
Huffman v. Click, 77 N. C. 56, pp. 408, 408, 



Hughes y. Westmoreland Co., 104 Pa. 
I St. 207, p. 88. 

I Humes y. Bernstein, 72 Ala. 646, p. 256. 
' Humphries y. Johnson, 20 Ind. 190, p. 

20, 446, 486. 
\ Hunt y. Lowell Gas Light Co., 8 Gray,. 

169, p. 62. 
I Hunt y. State, 9 Tex. Ct. of App. 166, pp. 

64, 118. 
Hunt's Heirs v. Hunt, 8 B. Monr. (Ky.> 

677, p. 168. 
Hurlbut y. Meeker, 104 III. 641, p. 88. 
Hurst y. The C, B. I. eto. B. B. Co., 49* 

Iowa, 76, pp. 66, 118. 
Huston y. Sohindler, 46 Ind. 40, p. 819 
Hyatt y. Adams, 16 Mich. 180, p. 116. 
Hynes y. McDermott,82 N. Y. 41, pp. 214^ 

329, 332. 337. 
Hyde v. Woolfolk, 1 Iowa, 169, pp. 68, 
206, 311, 816, 881. 

I. 

Illinois Central B. B. Co. y. Copeland, 

24 111. 836, p. 867. 
Illinois Cent. B. B. Oo. y. Latimer (UL), 

21 N. B. Bep. 7, p. 188. 
Illinois Central B. B. Co. y. Beedy, 17 

111. 680, p. 236. 
Illinois Cent. B. B. Co. y. Sutton, 42 111. 

488, pp. 116, 116. 
Inge y. Murphy, 10 Ala. (N. S.) 886, pp. 

201,226. 
Inglebright v. Hammond, 19 Ohio, 837, 

p. 272. 
Ingraham y. Hart, 11 Ohio, 255, p. 226. 
Innerarlty v. Mims, 1 Ala. 660, p. 205. 
In re Will of Ames, 51 Iowa, 696, p. 66. ^ 
/nr«Cliquot's Champagne, 8 Wall. (U.S.) 

114, p. 378. 
In r€ Fennerstein*8 Champagne, 3 Wall. 

(U. 8.) 145, p. 378. 
In re Will of Norman, 72 Iowa, 84, p. 66. 
In re Boss, 87 N. Y. 614, p. 169. 
In re Springer, 4 Penn. Law J. 275, p. 84. 
In re Todd, 19 Beav. 682, p. 219. 
Insurance Co. y. Mosley, 8 Wall. 397, p. 

116. 
Intemational, etc. B. B. Co. y. Under- 
wood, 64 Tex. 464. p. 188. 
In the Matter of Boelker, 1 Sprague, 

276, pp. 480, 434. 
Irylng y. McLean, 4 Blackf. (Ind.) 62, p. 

199. 
IriSh y. Smith, 8 S. A B. 673, p. U. 
Isabella y. Pecot, 2 La. Ann. 887, p. 206. 
I lyes y. Leonard, 50 Mich. 296, p. 39. 

J. 
I Jackson y. Armstrong, 60 Mich. 65, p. 
' 50. 



TABLE OF CASES CITED. 



XXIX 



Jaoksoti V. Bellng.as La. Ann. 877, p. 272. 
Jaekson v. Benson, 54 Iowa, 654, p. 18. 
Jaekson y. Edwai^s, 7 Paige Ch. (N. Y.) 

886, pp. 887, 392. 
Jaokson y. Lambeit, 121 Pa. St. 182, p. 

2S4. 
Jaekson y. N. Y. Cent. eto. B. B. Co., 2 

Sup. Ct. 663, p. 881. 
Jacob's Case, 5 Jones, 259, p. 177. 
James y. Bostwick, Wright (Ohio), 142, 

274. 
James y. Hodsden, 47 Vt. 127, p. 260. 
Jameson y. Drinkald, 12 Moore, 148, pp. 

61,280. 
Jarrett y. Jarrett, 11 W. Va. 684, pp. 

478,481. 
Jarrett y. Furman, 26 Hun (N. Y.), 888, 

p. 872. 
Jasper Oo. y. Osbom, 59 Iowa, 206, p. 6. 
Jefferson Ins. Co. y. Cotheai, 7 Wend. 

72, pp. 247, 249. 
Jeflersonyille R. R. Co. y. Lanham, 27 

Ind. 171, pp. 240, 280. 
Jenkins y. The State, 82 Ala. 25, p. 10. 
Jennings y. Prentice, 89 Mich. 421, p. 

860. 
Jerry y. Townshend, 9 M d. 145, p. 64. 
Jewell y. Center, 25 Ala. 496. p. 196. 
Jewett y. Brooks, 184 Mass. 505, p. 67. 
Jewett y. Draper, 6 Alien (Mass.), 484, p. 

803. 
Jeyne y. Osgood, 57 III. 340, p. 881. 
Joe y. State, 6 Fla. 591, p. 186. 
Jo'hns y. Thompson, 72 Ind. 167, p. 445. 
Johnson's Case, 67 N. C. 58, p. 177. 
Johnson y. Central B. B. Co., 56 Vt. 706, 

p. 128. 
Johnson y. Chambers, 12 Ind. 112, p. 

199. 
Johnson y. Cnlyer, 116 Ind. 878, p. 158. 
Johnson y. McKee, 27 Mich. 471, pp. 116, 

448. 
Johnson y. Mofflt, 19 Mo. App. 159, p. 

198. 
Johnson y. State, 2 Ind. 652, p. 90. 
Johnson y. State, 20 Tex. Ot. of App. 

178, p. 137. 
Johnson y. Thompson, 72 Ind. 167, p. 

378. 
Johnson Haryester Co. y. Clark, 81 

Minn. 165, p. 857. 
Jonan y. Ferrand, 8 Rob. (La.) 866, pp. 

81,362. 
Jones y. Angell, 95 Ind. 376, p. 149. 
Jones y. Finch, 87 Miss. 468, p. 344. 
Jones y. Fuller, 19 8. C. 66, pp. 9, 868. 
Jones y. Knauss, 31 K. J. Sq. 609, p. 448. 
Jones y. Laney, 2 Tex. 842, pp. 198, 199. 
Jones y. Maflett, 5 8. ft B. 528, pp. 210, 

217. 



Jones y. State, 71 Ind. 66, p. 81. 
Jones y. State, 11 Ind. 857, p. 845. 
Jones y. The Trustees, etc., 1 Smith, 47, 

p. 417. 
Jones y. Tucker, 41 N. H. 546, pp. 8, 20, 

22. 89, 54, 12L 
Jones y. Utica, etc. B. B. Co., 40 Hun 

(N.Y.), 349. pp. 121,122. 
Jones y. White, 11 Humph. 268, p. 4, 99, 

121, 122. 
Jordan y. Osgood, 169 Mass. 457, p. 280. 
Joseph y. Bank, 17 Kan. 256, p. 820. 
Joyce y. Maine Ins. Co., 45 Me. 169, p. 249. 
Judahy. McNamee, 8 Blackf. (Ind.) 269, 

p. 884. 
Jumpertz y. People, 21 111. 375, pp. 825, 

8tf. 
Junction B. B. Co. y. Bank of Ashland, 

12Wall.226, p. 196. 
Jnpitc y. People, 84 lU. 516, p. 260. 

K. 

Kannon y. Galloway, 2 Baxter, 281, p. 

829. 
Kansas City, eto. B. B. Co. y. Allen, 24 

Kan. 33, p. 873. 
Kansas City, etc. R. R. Co. y. Baird, 41 

Kan.69, p. 378. 
Kansas City, etc. R. R. Oo. y. Ehret, 41 

Kan. 22, p. 873. 
Kansas Pacific R. R. Co. y. Miller, 2 

Colo. 442, p. 10. 
Kansas, etc. R. R. Co. y. Peayey, 29 

Kan. 170, p. 26. 
Keables y. Christie, 47 Mich. 144, p. 353. 
Keator y. People, 32 Mich. 487, p. 448. 
Keister y. Miller, 25 Pa. St. 481, p. 444. 
Keith y. Lothrop, 10 Cush. (Mass.) 457. 

p. 83. 
Keith y. Tilford, 12 Neb. 271, p. 264. 
Keithley y. Stafford, 126 111. 507, p. 158. 
Keithsburg, etc. R. R. Co. y. Henry, 79 

111. 290, pp. 378, 445. 
Keller y. N. Y. Cent. R. R. Co., 2 Abbott 

Court of App. 480. p. 28, 60. 
Kelly's Heirs y. McGulre, 15 Ark. 555, p. 

158. 
Kelley y. Fon du Lac, 31 Wis. 179, p. 14. 
Kelley y. Richardson, 69 Mich. 480, 486, 

pp. 2, 12, 381, 382. 
Kelly y. Bmery, 75 Mich. 147, p. 444. 
Kelly y. Brie Telegraph & Telephone 

Co.,34Mlnn. 511,p. 188. 
Kelly y. United States, 27 Fed. Rep. 616, 

p. 101. 
KelJy y. United States, 8 Or. Law Mag 

174, p. 101. 
Kempsey y. McGinnis, 21 Mich. 128, pp. 

165, 479. 
Kendall y. Gray, 2 Hilton (N. Y.) , 802, p. 

384. 



XXX 



TABLE OF CASES CITED. 



Kendall v. May, 10 AUen (Mass.), W, p. 

886. 
Kennedy v. Brown, 18 C. B. (N. S.) 677, 

p. 880. • 
Kennedy y. People, 89 N. Y. 246, pp. 181, 

182. 
Kennedy ▼. Upshaw, 64 Tex. 412, p. 323. 
Kennett v. Fickle, 41 Kan. 211, p. 364. 
Kenny y. Clarksou, 1 Johnson (N. Y.), 

885, p. 205. 
Kenney y. Van Home, 1 Johns. (N*. Y.) 

894, p. 217. 
Kent y. Miltenberger, 15 Mo. App. 480, 

p. IS. 
Kent Furniture, eto. Co. y. Ransom, 46 

Mich. 416, p. 880. 
Kent y. Town of Lincoln, 32 Vt. 692, 

116. 
Kermott y. Ayer, 11 Mich. 181, pp. 209, 

888,206. 
Kern y. Bridwell, 119 Ind. 226, p. 185. 
Kern yi South St. Louis Mutual Ins. Oo., 

40 Mo. 19. pp. 247, 249. 
Kernin y. Hill, 87 111. 209, pp. 325, 328. 
Kerr y. Lunsford, 31 W. Va. 669, pp. 62, 

65, 66, 478. 
Kershaw y. Wright, 116 Mass. 361. pp. 

271, 283. 
Kess^l y. Albertls,56 Barb. (N. Y.) 862, 

p. 197. 
Key y. Thompson, 2 Hannay (N. B.), 

224, p. 68. 
KIbler y. MoUwaln, 16 S.'C. 660, p. 88. 
KUbourne y. Jenning, 38 Iowa, 588, p. 

61. 
KUgore y. Gross, 1 Fed. Rep. 682, p. 168. 
Kimbro y. Hamilton, 28 Tex. 660. p. 446. 
King y. Donahue, 110 Mass. 165, p. 840. 
King y. Missouri, etc. R. Co. (Mo.), 11 8. 

W. Rep 568, p. 13. 
King y. N. Y. Cent. R. R. Co., 72 N.Y. 607, 

pp. 10, 278. 
KInley y. Crane. 34 Pa. St. 146, p. 254. 
Kinne y. King, 9 Conn. 102, p. 169. 
Kinney y. Flynn, 2 R. I. 819, p. 829. 
KIpner y. Blehl, 28 Minn. 139, p. 265. 
KIrkby y. PhODnIx Ins. Co., 9 Lea, 142, p. 

249. 
Kirksey y. KIrksey, 41 Ala. 626, pp. 810, 

818. 328, 844, 346. 
Kirshaw y. Wrigbt, 116 Mass. 861, p. 272. 
KItterlngbam y. The Sioux City, eto. R. 

R. Co., 62 Iowa, 285. p. 17. 
Kline y. Buker, 99 Mass. 258, p. 226. 
Kline y. K. C, St. J. eto. R. R. Co. y. Lu- 
cas, 119 Ind 583, p. 130. 
Kline y K. C, St. J. etc. R. R. Co., 50 

IoWH,655, p. 20. 
Knapp y. Abell, 10 Allen (Mass.), 485, p. 

199. 



Knoll y. State, 65 Wis. 249, p. 141. 
Knowles y. People, 16 Mioh. 4C8, pp. 446, 

447.^ 
Knox y. Clark, 128 Mass. 216, p. 254. 
Knox y. Wheelock, 66 Vt. 200, p. 118. 
KolstI y. Minneapolis, etc. R. R. Co., 32 

Minn. 133, p. 241. 
Koons y. State, 86 Ohio St. 195, pp. 822, 

330, 331, 838. 
Koons y. St. Louis & Iron Mountain R. 

R. Co., 65 Mo. 692, p. 6. 
Kopke y. People, 43 Mich. 41, p. 209. 
Koster y. Noonan, 8 Daly (N. Y.), 282, p. 

278, 
Krenzlger y. Chicago, etc. R. R., 73 Wis* 

158, p. 404. 
Krippner y. Blebe, 28 Minn. 140, pp. 20, 

40. 42. 
Kuhns y. Wisconsin, eto. R. R. Co., 70 

Iowa, 561, p. 242. 

L. 
L. R., etc. R. R. Co., 47 Ark. 497, p. 868. 
Lacon y. Higgins, 8 Starkle (N. P.), 178, 

p. 210. 
Laflln y. Chicago, etc. R. R. Co., 83 Fed. 

Rep. 415, p. 487. 
Lake y. People, 1 Parker Cr. Cas. (N. 

Y.) 495, pp. 58, 78, 122, 169, 495. 
La Mere y. McHale, 30 Minn. 410, pp. 422, 

423. 
Lamoure y. Caryl, 4 Denio (N. Y.), 878, 

pp. 857, 361. 
Lancaster y. Lancaster's Trustees, 78 

Ky. 200, p. 887. 
Lands y. Lands, l Grant (Penn.), 248, p* 

170. 
Lane y. Wilcox, 55 Barb. (N. Y.) 616, p. 

266. 
Lanning y. Chicago, etc. Ry. Co., 68 

Iowa, 602, p. 349. 
Lapham y. Atlas Ins. Co., 24 Pick. 

(Mass.) 1, p. 281. 
Laros y. Commonwealth, 84 Pa. St. 200, 

pp. 41, 86. 
Lattlmore y. Elgin, 4 Dess. 26, p. 201. 
Laue^lln y. State, 18 Ohio, 99, p. 90. 
Laughlln y. Street R. R. Co., 62 Mich. 

220, pp. 14, 490. 
Lawrence y. Boston, 119 Mass. 126, p. 40. 
Lawrence y Dana, 4 Clifford, 1, 72, p. 

27L 
Lawrence y. Hudson, 69 Tenn. 671, p. 6, 
Lawson y. Chicago, etc. R. R. Co., 64 

Wis. 447, p. 14. 
Lawton y. Chase, 180 Mass. 288, pp. 40, 

357. 
Layton y. Chalon, 4 La. Ann. 318, p. 214. 
Leache y. The State, 22 Tex. App. 279, 

pp. 66, 84. 



TABLE OF CASES CITED. 



XXXI 



l-eary v. Woodrnfl , T6 N. Y. 617, p. 285. I 
Leathers v. Salver Wrecking Co., 2 

Wood, 680, p. 836. | 

Leavenworth, etc. R. R. Oo. v. Paul, 28 I 

Kan. 816, p. 869. 
Leber v. Hlnnesota, etc. R. K. Co., 29 [ 

Minn. 296, p. 870. 
Ledbetter v. State, 21 Tez. App. 844, p. • 

446. I 

Lee V. Mathews, 10 Ala. 682, p. SOS. 
Legg V. Drake, 1 Ohio St. 286, p. 416. [ 
Legg V. Legg, 8 Mass. 99, p. 199. I 

Lehigb Vail. Coal Co. v. City of Chicago, 

26 Fed. Rep. 416, p. 400. 
Lehmicke v. St. Paul, etc. R. R. Co., 19 

Minn. 464, pp. 350, 370, 878, 376. 
Leltch V. Atlantic Mat. Ins. Co., 66 N. T. 

100, pp. 248, 253. 
Leitensdorfer v. King, 7 Col. 436, p. 487. 
Leopold V. Van £irk, 29 Wis. 548, pp. 84, 

282. 
Leroy, etc. R. R. Co. v. Hawk, 89 Kan. 

638, p. 373. 
Lessee of Hoge v. Fisher, 1 Pet. C. O. 

164, pp. 162, 480. 
Lessee of Forbes v. Carathers, 8 Yeates, 

527, p. 4. 
Lester v. Pitsford, 7 Vt. 158, p. 20. 
Lewis V. Brown, 41 Me. 448, p. 6. 
Lewis V. Burlington Ins. Co., 71 Iowa, 

97, p. 866. 
Lewis V. CbrlBtie, 99 Ind. 877, p. 448. 
Lincoln v. Inhabitants of Bdrre, 5 Cash. 

591. pp 89,43,265. 

Lincoln v. Battelle, 6 Wend. (N.Y.) 476, 

p. 206. 
Lincoln v. Saratoga, etc. R. R. Co., 28 

Wend. 425, pp. 20, 25, 122, 851, 867. 
Lincoln v. Taunton Manufacturing Co., 

9 Allen (Mass ), 182, pp. 88, 146. 
lindaner v. Delaware Mut. Ins. Co., 18 

Ark. 462, p. 18. 
Lindsay v. People, 63 N. Y. 143, p. 131. 
Lindsley v. Chicago, etc. R. R. Co., 86 

Minn. 640, p. 242. 
Line V. Mack, 14 Ind. 880, p. 2(5. 
Linsley v. Lovely, 26 Vt. 128, p. 88. 
Linton V. Hurley, 14 Gray (Mass.), 191, 

p. 121. 
LIpscombe v. Holmes, 2 Camp, 441, p. 

384. 
Little V. Beazley, 2 Ala. 210, p. 328. 
Llttiedale v. Dixon, 1 Bos. A Pul. 151, j). 

247. 
Little Rock, etc. R. R. Co. v. Haynes, 47 

Ark. 497, p. 867. 
Liverpool, etc. Ins. Co. v. McGuire, 62 

Miss. 227, p. 249. 
Livingston v. Commonwealth, 14 Gratt. 

592, pp. 68, 99, 118, 180. 



Livingston v. Maryland Ins. Co., 6 

Cranch,274, p.218. 
Locker v. Sioux City, etc. R. R. Co., 46 

Iowa, 109, p. 838. « 

Lockhart.y. Dewees, 1 Tex.- 585, p. 272. 
Lookwood t. Crawford, 18 Conn. 861, p> 

226. 
Logan V. McGinnis, 12 Pa. St. 27, p. 156. 
Lombard, etc. R. R. Co. v. Christian, 124 

Pa. St. 114, p. 192. 
Lonergan v. Royal Exchange Assur- 
ance, 7 BIng. 725, p. 439. 
Long V. Davidson, 101 N. C. 175, p. 274. 
Long V. Little, 119 111. 600, p. 286. 
Looper v. Bell, 1 Head (Tenn.), 873, p. 

116. 
Lord V. Beard, 79 N. C. 5, p. 167. 
Loucks V. Chicago, etc. R. R. Co., 31 

Minn. 526, p. 77. 
Louisville, etc. R. R. Co. v. Cox, SO 111. 

App. Ct. 380, p. 361. 
Louisville, etc. R. R. Co. v. Falvey, 104 

Ind. 40tf, pp. 66, 67, 74, 80, 82, 115. 
Louisville, etc. R. R. Co. v. Lucas, 119 

Ind. 688, p. 122. 
Louisville, etc. R. R. Co. v. Shires, 108 

111. 617, pp. 118, 122, 289. 
Louisville, etc. R. R. Co. v. Snyder, 117 

Ind 485, pp. 115, 188. 
Louisville, etc. R. R. Co. v. Wood, 118 

Ind. 544, pp. 11, 189. 
Lovejoy v. U. S., 128 U. S. 171, p. 445. 
Lovelady v. State, 14 Tex. Ct. App. 846, 

p. 65. 
Lowe V. Connecticut, etc. R. R. Co., 45 

N. H. 870, p. 852. 
Lowell V. County Commissioners, 146 

Mass. 403, pp. 55, 849. 

Loyd V. H/innibdl, etc. R. R. Co., 53 Mo. 
509. p 184. 

Luce V. Dorchester Ins. Co. 106 Mass. 

297, p. 247, 250. 
Ludlow V. Warshing, 108 K. Y. 630, p. 

808. 
Lnning v. State, 1 Chandler, 178, pp. 62, 

404. 
Luse V. Jones, 39 N. J. Law, 708, p. 857. 
Lush V. Druse, 4 Wend. (N. Y.) 317, p. 

378. 
Lush V. McDaniel, 13 Ired. (N. C.) 485, 

pp. 121, 191. 
Lyon V. Lyman, 9 Conn. 56, pp. 297, 829. 



Maoer v. Third Ave. R. R. Co., 47 N. Y. 

Sup. Ct 461, p. 130. 
Macbin v. Grindon, 2 Cas. Temp. Leg. 

885, p. 810. 
Maclean v. Scripps, i^2 Mich. 214, p. 385. 



XXXll 



TABLE OF CASES CITED. 



Maoomber y. Scott, 10 Kan. KB, pp. 224, 

820.828. 
Maoon, etc. B. B. Ck>. ▼. Johnson, 88 Ga. 
* 409, p. 236. 
Maddoz y. FIsber, 14 Moor^ P. 0. 103, p. 

197. 
Magee y. City of Troy, 48 Hun (N. Y.), 

883« p. 122. 
Maher y. Atlantic, etc. B. B. Oo., 64 Mo. 

267, p. 287. 
Malcolmaon y. Morton, 11 Irlsb L.B. 280, 

(Q.B.)P.271. 
Male y. Boberts, 8 Bsp. 168, p. 198. 
Manke y. People, 24 Hun (N. Y.), 816, p. 

81. 
Manke y. People, 78 N. Y. 611, p. 81. 
Mansfield Goal Oo. y. McEnery, 91 Pa. 

St. 186, p. 87. 
Mantel y. Ohloago, etc. B. B. Co. 88 

Minn. 6266, p. 16. 
Mannfacturers, etc. y. Koch, 106 N. Y. 

680, p. 18. 
Marcott y. Marqaette, etc., B. B. Co., 49 

Mich. 99, p. 238. 
Marcy y. Barnes, 16 Gray, 160, pp. 67, 

886. 
Marcy y. Sun Ins.Oo., 11 La. Ann. 748, p. 

234. 
Marion y. State, 20 Neb. 283. p. 888. 
Mark y. City of Buflalo, 87 N. Y. 184, p. 

442. 
Marshall y. Columbia, etc. Ins. Co., 7 

Foster (N. H.), 167, pp. 20, 862. 
Marshall y. Brown, 60 Mich. 148, pp. 402, 

410. 
Marshall y. State, 49 Ala. 21, p. 10. 
Marshall y. Union Ins. Co. 2 Wash. O.C. 

367, p. 247. 
Martin y. Franklin Fire Ins.Oo., 42 N. J. 

Law, 46, p. 250. 
Martin y. Maguire, 7 Gray, 177, p. 831. 
Mascheck y. St. Louis, B. B. Co., 1 Mo. 

App. 600, p. 6. 
Mason y. Fuller, 46 Vt. 29, pp. 105, 156. 
Mason, etc. B. B. Co. y. Johnson, 88 6a. 

409, p. 240. 
Mason y. Phelps, 48 Mich. 127. p. 41. 
Mason y. Wash, Breese (111.). 89, p. 199. 
Massachusetts Life Ins. Co. y. Eshel- 

man, 30 Ohio St. 647. p. 6. 
Massey y. Bank, 104^ 111. 327, pp. 825, 828, 

842. 
Maatensy. Mastens, 1 P. Wm. 425, p. 802. 
Mather y. Coleman, 111 N. Y. 220, p. 110. 
Matter of Darragh, 52 Hun, 698. p. 106. 
Matter of Foster's Will, '84 Mich. 21, pp. 

886,462. 
Matter y. Klock, 49 Hun (N. Y.). 450. p. 

159. 



Matter of Foster's Will, 84 Mich. 21, p. 

328. 
Matter of N. Y. etc. B. B. Co., 29 Hun, 

609, p. 870. 
Matter of Utica, etc. B. B. Co., 66 Barb. 

456, p. 870. 
Matteson y. New York Cent. B.B.Co., 86 

N. Y. 487, pp. 116, 122, 188. 
Matteson y. N. Y. eco. B. B. Co. 62 Barb. 

(N. Y.) 364, p. 121. 
Matteson y. State, 55 Ala. 224, p. 12. 
May y. Bradlee, 12^ Mass. 414, pp. 81, 160. 
May y. Dorsett, 80 Ga. 116. p. 846. 
Maybew y. Snlliyan Mining Co., 76 Me. 

100. p. 26. 
Mayo y. Wright, 68 Mich. 82, pp. 116, 149, 

160. 
Mayor, etc. y. O'Neill, 1 Pa. St. 842, p. 

278. 
McAdory y. State, 69 Ala. 92, p. 6. 
McAllister y. State, 17 Ala. 486, pp. 162, 

169,486. 
McClaokey y. State, 6 Tex. Ot. of App. 

820, pp. 167, 160. 
McClain y. Brooklyn City B. B. Co., 116 

N. Y. 459, pp. 121, 122. 128. 
McClintock y. Card, 82 Mo. 411, pp. 81, 

166. 
McCollum y. Seward. 62 N. Y. 376, p. 71. 
McCormic y. Hamilton, 28 Gratt. (Va) 

661, p. 267. 
McCraney y. Alden, 46 Barb. (N. Y.) 274, 

p. 198. 
McCreary y. Tark, 29 Ala. 24i, p. 235. 
McDeed y. McDeed, 67 111. 645. p. 206. 
McDonald y. Chicago, etc. B. B., 26 Iowa, 

124. p. 392. 
Mc Dongald y. McLean, 1 Winston (N. 

0.) Law, 120, p. 168. 
McEwen y. Bigelow. 40 Mich. 217, pp. 39, 

44,53. 
McFadden y. Murdock, 1 Irish B. (C. L.) 

211, pp. 857, 451. 
McGiU y. Bowand, 3 Pa. St. 462, p. 353. 
McGowan y. Am. Tan Bank Co., 121 U. 

S. 575. p. 490. 
Mcintosh y. Lee, 57 Iowa, 868, p. 894. 
Mc Kay y. Lasher, 42 Hun (N.Y.),270,pp. 

311, 315. 
McEee y. Nelson, 4 Cowen (N.Y.), 855. p. 

11. 
McKee y. State, 82 Ala. 82, pp. 126, 131. 
McEeone y. Barnes, 108 Mass. 844, pp. 

303,832. 
McEelgue y. City of Janesyille, 68 Wis. 

59, p. 392. 
McKnlght y. State, 6 Tex. Ct. of App. 

162, p. 6. 
McLanahan y. Uniyersal Ins. Co.. 1 Pet. 

17U. pp. 288, 247 



TABLE OF CASES CITED. 



XXXUl 



McLean v. State, 16 Ala. 672, pp. 90. 1G9. 
McLeary v. Morment, 84 N. C. 235, p. 168. 
McLeod T. Bullard. (4 N. C. 615, p. 303. 
McLeod V. Lee, 17 Nevada, 103, p. 15. 
McMahon v. Tyng, 14 Allen, 167, p. 270. 
McMechen v. McMechen, etc. R. R. Co., 

17 W. Va. 683. pp. 62, 73. 
McNalr v. National Life ln«. Co., 20 N.Y. 

Sup. Ct. 146, p. 130. 
McNaugbten'd Case, 10 G. & F. 200, pp. 

77, 166. 
McNeill V. Arnold, 17 Ark. 164, pp. 205, 

214. 
McPeters v. Ray. 85 N. C. 462, p. 350. 
McPherrin v. Jennings, 66 Iowa, 622, p. 

194. 
MoPheraon v. St. Louis, etc. R. R. Co., 97 

Mo. 253. p. 18. 
McRae v. Malloy, as N. N. C. 154. pp. 11. 

157. 
McRae v. Mattoon, 13 P2ck. 87, p. 201. 
Mead v. Northwestern Ins. Co.. SSelden 

(N.Y.), 530, p. 262 ; 8. 0.. 3 Bennett's 
Fire Ins. Co. Gas. 483, p. 262. 
Meeker v. Meeker, 74 Iowa. 362, p. 66. 
Melendy v. Spaulding, 64 Vt. 617, p. 165. 
Melvin V. fiasley, 1 Jones' Law, 388, pp. 

47, 408. 
Melvin V. Hodges, 71 111. 422, p. 32.V 
Menduna v. Common we alt b, 6 Rand. 

(Va.) 704, pp. 41,124. 
Merchants' Ins. Go. v. Dwyer, 1 Posey 

(Tex.).441, p. 249. 
Merkle v. Bennington. 68 Mich. 133, 148, 

p. 14. 
Merkle v. State, 87 Ala. 189, p 398. 
Merrlam v. Middlesex Ins. Co.. 21 Pick. 

162, p. 250. 
Merrill v. Dawson, Hempstead, 563, p. 

198. 
Meriitt v. Merritt, 20 Ul. 65, p. 201. 
Merritt v. Seaman, 6 N. Y. 168, p. 6. 
Mertz V. Detweller. 8 W. & 8. (Pa.) 876* 

pp. 149, 384. 
Messer v. Regionitter, 32 Iowa, 812, p. 

254. 
Miami, etc. R. R. Go. v. Bailey, 37 Ohio 

St. 104, p. 1^. 
Middlebury Coll. v. Cheney, 1 Vt. 848. p. 

199. 
Middleton v. Janverin, 2 Hag. Cons. R. 

437, p. 210. 
Middlings Purifier Co. v. Christian. 4 

Dillon, 448, p. 448. 
Miles V. Loomis, 76 N. Y. 288, pp. 286,287, 

294, 299, 821, 328. 
Millar v. Heinrlck. 4 Camp. 155, p. 202. 
Miller V. Johnson, 27 Md. 6, pp. 326, 828, 

336. 
Miller v. Shay, 14 Mass. 596. p. 263. 



Miller y. Jones, 82 Ark. 888. pp. 818, 388. 
Miller v. Smith, 112 Mass. 470, pp. 58, 869. 
Miller V. Stevens, 100 Mass. 618, p. 276. 
Mills V. Winter, 94 Ind. 829. p. 11. 
Milton V. Rowland, 11 Ala. 732, p. 190. 
Milwaukee, etc. R. R. Go. v. Eble, 4 

Chand. (Wis.). 72, p. 873. 
Milwaukee, etc. R. R. Co. v. Kellogg, 04 

U. 8. 469, pp. 15. 20. 247. 249. 
Milwaukee & St. Paul R. R. Co. v. Smith, 

74 III. 197, p. 217. 
Mima V. Swartz, 87 Tex. 13. p. 196. 
Minnesota Central R. R. Go. v. Morgan, 

52 Barb. (N. Y.) 217. p. 272. 
Mish V. Wood, 84 Pa St. 461, pp. 20, 858. 

869. 
Missouri, etc. R. R. Go. v.Finley,.S8Kan. 

650, pp. 60, 99, 198. 194. 
Missouri Pacific, etc. R. R. Co. v. John- 
son. 72 Tex. 96, pp. 183, 186. 
Missouri, etc. R. R. Co. v. Mackey. 38 

Kan 2»9,p. 88. 
Mitchell V. Allison, 29 Ind. 48, p. 367. 
Mitchell V. Home Ins. Co., 32 Iowa, 424, 

pp. 247, 249. 
Mitchell V. State, 68 Ala. 418, pp. 119. 135, 

445. 
Mixer V. Bennett, 70 Iowa, 329, p. 311. 
Moale V. Baltimore, 5 Md. 314, p. 375. 
Mobile, etc. R. R. Co. v. Blakely, 69 Ala. 

471, p. 238. 
Mobile, etc. R. R. Co. v. Whitney, 89 Ala. 

468, p. 199. 
Mock V. Kelly, 3 Ala. 887, p. 384. 
Molina V. United States, 6 Ct. of CI. 269, 

p. 222. 
MoUer v. Moller, 115 N. Y. 468, p. 447. 
Monroe v. Douglas, 5 N. Y. 447, p. 198. 
Monroe v. Lattln, 25 Kan. 851, pp. 16, 20, 

25. 
Mongbon v. State, 57 Ga. 102, p. 282. 
MQnongahela Water Go. v. Stewartson, 

96 Pa. St. 436. pp. 45, 192. 
Montgomery v. Commonwealth, 11 S. 

W. Rep. 475, p. 168. 
Montgomery v. Dealey, 3 Wis. 709, p. 

198 
Montgomery v. Gilmer, 38 Ala. 116, p. 

p. 268. 
Montgomery v. Town of Scott, 34 Wis. 

8.B8, pp. 6, 32. 180. 
Montgomery, etc. R. R. Co. v. Varner, 

19 Ala. 186, p. 369. 
Moody V. Ro well, 17 Pick. (Mass.) 490, 

pp. 294, 298, 299, H2^. 
Moody V. Russell, 4 Gray. 167, p. 320. 
Moore v. Chicago, etc. R. R. Co.. 65 

Iowa, 506, p. 242. 
Moore v. Crowder, 72 Ala. 79, 818, pp. 

286,818. (C) 



xxxiv 



TABLE OF CASES CITED. 



Moore ▼. G wyn, 5 Ired. (N. C ) 187, p. 226. 
Moore y. HaTlUnd (Vermont), 17 Atl. 

Rep. 725, p. 194. 
Moore ▼. Lea's Admr. 82 Ala. 376, p. 269. 
Moore v. Scate, 17 Ohio St. 626, pp. 64, 

122. 
Moore v. Township of Kenockee, 76 

Micb. 832, 843, p. 863. 
Mo«re V. United States, 91 U. 8. 271, pp. 

823, 329. 
Moore v. Westervelt, 9 Bos. (X. Y.) 659, 

p. 232. 
Moreland v. Mitchell Gouoty, 40 Iowa, 

401, pp. 267. 281. 
Morewood v. Wood, 14 East, 827, note a, 

p. 310. 
Morrill y. Tegardeii. 19 Neb. 534, p. 66. 
Moore v. Orowder, 72 Ala. 79, p. 286. 
Mooney y. Lloyd, 6 S. & R. (Penn.) 416, 

p. 884. 
Moons y. Crowder, 72 Ala. 79, p. 311. 
Morris y. Crowder, 72 Ala. 79, p. 828. 
Morris y. Dayidson, 49 Ga. 361, p. 197. 
Morris y. Bast Ilayen, 41 Conn. 252, p. 

16. 
Morris y. Lachnaan, 68 Cal. 109, 446. 
Morris y. Morrls,119 Ind. 341, pp.109, 110. 
Morrison, ^. Porter, 35 Minn. 426, p. 321. 
Morrison y. Watson, loi N. C. 838, p. 877. 
Morrissey y Ingraham, 111 Mass. 63, p. 

122. 
Morrissey y. Wiggins Ferry Co., 47 Mo. 

521, p. 199. 
Morse y. Crawford, 17 Vt. 499, p. 158. 
Morse y. The State, 6 Conn. 9, p. 10. 
Moser y. Cochrane, 107 N. Y. 35, p. 18. 
Moses y. Delaware Ins. Co., 1 Wash. 0. 

C. 385, pp. 247, 260. 
Mostyn y. Farrlgas, Cowp. 174, p. 198. 
Mott y. Hudson, etc. R. K. Co., 8 Bos. 

(N. Y.) 845, p. 241. 
Moulton y. McOwen, 103 Mass. 587, p. 2^. 
Mowry y. Chase, 100 Mass. 79, pp. 214, 

227. 
Moye y. Herndon, 80 Miss. 118, pp. 801, 

462. 
Moyer y. N. Y. Central, etc. R. R. Co., 96 

X. Y. 646, pp. 16, 86, 253. 
Mudd y. Suckermore, 6 Ad. & £11. 703, p. 

288. 
Muloairns y. Janesyille, 67 Wis. 24, p. 

892. 
Maldowney y. 111. Cent. R. R. Co., 86 

Iowa, 472, pp. 28, 28, 61, 67. 
Mulny y. Mohawk Valley Ins Co., 6 Gray 

(Ma8S.),6i5, p. 249. 
Murphy y. Hagerman, Wright (Ohio), 

293, p. 297. 
Murphy y. N. Y., etc. R. R. Co., 66 Barb. 

125, p. 288. 



Munshower y. State, 55 Md. 11, p. 393. 
Mutual Life Ins. Co. y. Bratt,56 Md. 200» 

p. 402. 
Mut. Benefit Life Ins. Co. y. Brown, 30 

N. J. £q. 198. p. 461. 
Myers y. Murphy, 60 Ind. 282, p. 260. 
Myers y. State, 84 Ala. 11, p. 118. 

N. 

Napier y. Ferguson, 2 P. & B. (New 

Bruns.) 415, pp. 121, 122, 187. 
NashylUe, etc. R. R. Co. y. Carroll, 53 

Tenn. 847. p. 26. 
National Bank y. Armstrong, 66 Md. 113, 

pp. 280. 326. 
Naugnton y. Stagg,4 Mo. App.27, pp. 25, 

40. 
I Naye y. Tucker, 70 Ind. 15, p. 66. 
' Naye's Admr. y. Williams, 22 Ind. 368, 

p. 278. 
Needham y. Ide, 6 Pick. 510, p. 166. 
Neilson y. Chicago, etc. R. K. Co., 68 

Wis. 576, pp. 26, 870. 
Nelson y. Bridport, 8 Beay. 027, pp. 19», 

223. 
NelKon y. Harrington, 72 Wis. 691, p. 149. 
Nelson y. Johnson, 18 Ind, 329, p. 301. 
Nelson y. Sun Mut. Ins. Co., 71 N. V. 458» 

pp. 3. 39, 274, 276. 
Nelson y. Wood, 62 Ala. 176, p. 283. 
Neyarro y. State, 24 Tex. App.878, p. 164. 
New Albany, etc. R. R. Co. y. Huff, 19 

Ind. 815, pp. 6, 369. 
New England Glass Co. y. Loyell, 7 Cush. 

319, pp. 21,25,230. 
Newell y. Newell, 9 Paige, 26, pp. 172, 178, 

174, 176, 176. 
Newhall y. Appleton, 114 N. Y. 140, p. 

274. 
Newmark y. Llyerpool, etc. I«8Co.,80 

Mo. 165, p. 20. 
New Orleans, etc. R. R. Co. y. Allbrit 

ton, 38 Miss. 242, p. 100, 380. 
Newton y. Cocke, 10 Ark. 169, p. 199. 
Newton y. State, 21 Fla. 56, pp. 119, 121, 

468. 
Niagara Fire Ins. Co. y. Greene, 77 Ind. 

590, p. 261. 
Nicholas y. Gould, 2 Vestry, 428, p. 387. 
Nicholas y. Kershner, 20 W. Va. 261, p. 

478. 
Noblesyllle, etc. R. R. Co. y. Gause, 76 

Ind. 142, pp. 122, 180. 
Nolln V. Palmer, 21 Ala. 66, p. 266. 
Noonan y. Usley, 22 Wis. 27, p. 888. 
Noonan y. State, 65 Mo. 258. p. 158. 
Norman y. Morell, 4 Vesey Ch. 768, pp. 

297,301. 
Norman y. Wells, 17 Wend. 186, pp. 18, 

20,867. 



TABLE OF CASES CITED. 



XXXV 



Norment y. Fabtnaght, 1 MoAnhnr, 616, 

p. 266. 
North Missouri R. R. Co. v. Aken8,4 

Kan. 463, p. 268. 
Northeast, etc. R. R. Co. v. Frazier, 26 

Neb. 53, pp. 370, 373. 
Northern Bank v. Baford, 1 Duval, 886, 

p. 828. 
Northwest Fuel Co. v. Blabler, 86 Minn. 

166, p. 349. ^^ 

Norton y. Moore, 4(rrenn. 488, p. 190. 
Norton v. Seton, 8 Phlllimore, 147, p. 

172. 
Norwood y. Morrow, 4 Dev. A Batt. 442, 

p. 169. 
Nowell y. Wright, 8 Allen (Miss.). 166. 

p. 38. 
Nunes y. Perry, 118 Mass. 276, pp. 65, 331. 
Nutter y. Boston, etc. R. R. Co., 60N. H 

483, p. 246. 

O. 

O'Brien v. People, 36 N. Y. 276, p. 169. 
Ogden y. Parscfns, 23 How. 167, p. 231. 
O'Hara y. Wells, 14 Neb. 403, p. 66. 
Ohio, etc. R. R. Co. y. Nickless, 71 Ind. 

271, p. 367. 
Oleaon y. Talford, 37 Wis. 827, pp. 16, 82. 
Olmstead y. Gere, 100 Pa. St. 127, pp. 99, 

149. 
O'Mara y. Commonwealth, 76 Pa. St. 424, 

p. 187. 
Onutfby y. Ihmsen, 84 Pa. St. 462, p. 

266. 
Orr y. Mayor, etc., 64 Barb. 106, p. 869. 
Ort y. Fowler, 81 Kan. 478, pp. 295, 320. 
Osborne y. Hosier, 6 Mod. 167, p. 340. 
Osborne y. Marks, 88 Minn. 56, p. 863. 
Otey y. Hoy t, 8 Jones, 407, p. 82i. 
Otey y. Hoyt, 2 Jones (N. C. Law), 70, p. 

806. 
Ott V. Soulard. 9 Mo. 581, p. 197. 
Ottawa, etc. R. R. Co. y. Adolph,41 Kan. 

600, p. 869. 
Ottawa Gas, etc. Co. y. Graham, 28 111. 

78. p. 487. 
Ottawa Uniyersity y. Parkinson, 14 Kan. 

169, pp. 881. 882. 
Owen y. Boyle, 15 Me. 147, pp. 197, 198, 

201. 
O wings y. Hull, 9 Pet. 607, p. 198. 
Outlaw y. Hurdle. 1 Jones, 160, p. 822. 



P. 



P V. L , 8 Prob. Diy. (L. R.) 73 

note 2, p. 176. 
Paddock y. Commonwealth Ins. Co., 

104 Mass. 621, p. 232. 



Page V. Hazard, 6 Hill (N. Y.).608, p. 864. 

Page y. Parker, 40 N. U. 69, p. 20. 

Page y. State, 61 Ala. 16, pp. 64. 76, 126, 

130. 
Page y. Wells, 87 Mich. 416, p. 876. 
Paige y. Hazard, ft Hill, 603, pp. 232, 285. 
Paine y. Boston. 4 Allen, 168, p. 349. 
Paine y. Schenectady Ins. Co., 11 B. I. 

411, p. 200. 
Pannell y. Commonwealth, 86 Pa. St. 260, 

p. 446. 
Papin y. Ryan, 82 Mo. 21. p. 197. 
Parker y. Boston Steamboat Co., loa 

Mass. 449, p. 189. 
Parker y. iCnslow, 102 111. 272, p. 184. 
Parket'tf Heirs y. Parker's Admr., 88 Ala, 

469, p; 878. 
Parker y. Johnson, 26 Ga. 683, p. 450. 
Parkinson V. Atkinson, 31 L. J. (N. 8.) 

C. P. 199, p. 439. 
Parkhurst y. Hosford,21 Fed. Rep. 827, 

p. 158. 
Parkhurst y. Masteller, 67 Iowa, 476, p. 

13. 
Parnell y. Commonwealth, 86 Pa. St. 

260, p. 478. 
Parsons Water Co. y. Knapp, 38 Kan. 

752, p. 860. 
Parsons y. Manf. etc. Ins. .Co., 16 Gray, 

463, p. 280. 
Parsons y. McDanlel, 62 Ga. 100. p. 288. 
Parsons y. Parsons, 66 Iowa, 754, p. 11. 
Partridge y. Insurance Co., 15 Wall, 876, 

p. 271. 
Passmore y. Passmore's Estate. 60 Mich. 

468, p. 490. 
Patchin V. Astor Mut. Ins. Co., 13 N. Y. 

268, p. 230. 
Patey. People, 3 Glim. (III.) 644, pp. 

297, 30U. 
Patten y. United States, 15 Ct. of CI. 288, 

p. 854. 
Patten y. WIggen, 51 He. 695. p. 148. 
Patterson y. Boston, 20 Pick. (Mass.) 

168. p. 487. 
Patterson y.Colebrook, 9 Foster (N.H.), 

94. p. 6. 446. 
Paeey y. Payey, 86 Ohio St. 600, pp. 830, 

831. 332. 
Payson y. Eyerett, 12 Minn. 216. p. 344. 
Peck y. Callaghau, 95 N. Y. 73, pp. 815, 

322. 
Peck y. Hibbard. 26 Vt. 698, pp. 200, 218. 
Peer y. Ryan, 64 Mich. 224. p. 193. 
Pelamourges y. Clark. 9 Iowa, 1, pp. H, 

16, 20, 61. 
Penn Mut. Life Ins. Co.y.Wllor,100Ind. 

102, p. 112. 
Pennsylyania, etc. R. R. Co. y. Bunnell , 
81 Pa. St. 426, pp. 87i, 373. 



XXXVl 



TABLE OF CASES CITED. 



Pennsylvflnta, etc. R. R. Co. v. Oleary, 

126 Pa, St. 4«, p. 876. 
Pennnylvanla Co. v.Connell, 127 III. 419, j 

p. 18. 
Pennsylvania Goal Co. v. Conlan, 101 | 

111. 93, pp. 28, 243. i 

Pennsylvania R. R. Co. ▼. Henderson. 

51 P. 8t. 820. p. 888. 
People V. Angsbury, 97 N. Y. 501, pp. 66, 

80. 
People V. Arnold, 40 Mich. 710, p. 80. 
People V. Badger, 1 Wheeler Or. Cas. 

54», p. 346. 
People V. Barber, 116 N. Y. 478, p. 164. 
People V. Barker, 60 Mich. 277. pp. 88, 

119. 
People V. Barry, 81 Oal. 357, p. a4. 
People V. Bascovitcb, 20 Onl. 488, p. 90. 
People V. Brotherton, 47 Cal. 896, p. 808. 
People V. Buddensleck, 108 N. Y. 487, p. 

338. 
People V. Cheekee, 61 Cal. 404, p. 398. 
People V. Clark, 88 Mich. 112, p. 165. 
People V. Deacons, 109 N. Y. .S74, pp. 148, 

144. 
People V. Devlne, 44 Oal. 462, p. 89. 
People V. Donovan, 43 Oal. 546, p. 84. 
People V. Eastwood, 14 N. Y. 562, p. 10. 
People V. Flnley, 88 Mich. 482, p. 158. 
People V. Foley, 64 Mich. 148. pp. 36. 79. 

119. 
People V. Ga.e, 50 Mich. 287, p. 489. 
People V. Gastro, 76 Mich. 127, p. 446. 
People V. Gonzalez, 86 N. Y. 49, p. 144. 
People V. Go'denson, 76 Cal. 328, p. 66. 
People's, etc. R. R. Co. v. Green, 56 Md. 

84, p. 333. I 

People v. Greenfield. 80 N. Y. Sup. Ct. 

462, p. 143. 
People v. Hall. 48 Mich. 482. pp. 67, 402, 

486. 
People v. Hare. 57 Mich. 5(«5, pp. 119.129, 

131, 447. 
People v. Hewitt, 2 Parker's Or. Cas. 20, 

pp. 297, 299. 
People V. Hong Ah Duck, 61 Cal. 387, p. 

126. 
People v. Jenness, 6 Mich. 305. p. 447. 
People v. Kemmler, 119 N. Y. 580, p. 463. 
People V. Kemp, 42 Mich. 206, p. 92. 
People v. Lambert, 5 .Mich. 349. pp. 200, 

20tJ, 20P, 219. 
People v. Lttvalle, 71 Cal. 351, p. 11. 
People V. Levy, 71 Oal. 618, p. 8. 
People V. Lyons, 49 Mich. 78. p. 446. 
People V. McOann, 3 Parker's Or. R. 272, 

p. 166. I 

People V. McCoy, 45 How. Pr. 216, p. 180. 
People V. Mead, 50 Mich. 228, p. 179. | 



People V. Millard, 63 Mich. 63, pp. 61. 66, 

71,184,402,410,490. 
People V. Miller, 38 Cal. 99, p. 88. 
People V. Montgomery, 13 Abbott's Pr. 

R. (N. Y.) 207, pp. 167, 424, 440, 464. 
People V. Morrigan, 29 Mich. 6, pp. 80, 

280, 450. 468. 
People V. Montleth, 73 Cal. 7, p. 10. 
People V. Mullen. 96 N. Y. 406, pp. 25, 28. 
People V. Murphy, |pl N. Y. 126, pp. 108, 

111, 116. 
People V. NUeP, 44 Mich. 606. p. 464. 
People V. Xoelke, 94 N. Y. 137, p. 89. 
People V. Olmstead. 80 Mich. 434, p. 192. 
People V. Oyer, etc. Court, 83 N. Y. 486. 

p. 88. 
People V. Packenham, 115 N. Y. 200, p. 

159. 
People V. Parker, 67 Mich. 222, pp. 320, 

328. 
People V. Perrlmnn. 40N.W. Rep. (1888), 

p. 466. 
People V. Rathburn, 21 Wend. (N. Y.) 

609, p. 445. 
People V. Rlehettl. 66 Oal. 185. p. 447. 
People V. Robinson, 2 Parker Or. Cas. 

(N. Y.) 286, pp. 122, 135. 
People V. Sanford, 43 Oal. 32, pp. 11, 168. 
People V. Schuyler, 43 Hun (N.Y.),88,p. 

107. 
People V. Schuyler, 106 N. Y. 298, p. 108, 

168. 
People V. Security Life Ins. Co., 78 N.Y. 

114. p. 892. 
People V. Sessions, 58 Mich. 604, pp. 68, 

77. 
People V. Sprague, 53 Cal. 491, p. 447. 
People V. Stout, 8 Parker Cr.Cas. 670, p. 

106. 
People V. Sutton, 78 Oal. 248, p. 80. 
People V. Thurston, 2 Parker Or. Cas. 

49, pp. 58, 78. 
People V. Wheeler, 60 Cal. 681, pp. 398, 

409, 415. 
People V. Willson, 109 N. Y. 846, pp. 128, 

130. 131. 
People V. Wreden, 69 Oal. 892, p. 158. 
Peoria, etc. R. R. Co. v. Berry, 17 Brad. 

(111.) 47, p. 122. 
Pepper V. Barn ett, 29 Gratt. (Va.) 406, 

p. 287. 
Perkins v. Augusta Ins.Co.,10 Gray, 312, 

p. 25,230. 
Perkins v. People, 27 Mich. 386, p. 350. 
Perkins v. Stickney, 132 Mass. 217 p. 55. 
Perrot v. Shearer, 17 Mich. ^8, p. 446. 
Peter v. Thlckatun, 51 Mich. 'i89, p. 350. 
Peters v. Stavely, 15 L. T. (N. 8.) 161, p. 

271. 



TABLE OF CASES CITED. 



XXXVU 



Peterson v. Chicago, etc. B. B. Co., 88 

Minn. 611, pp. 66, 88. 
Pecterborougb v. Jaflrey, 6 N. H. 462, p. 

852. 
Phelps y. Town, 14 Mich. 374, p. 18. 
Phillips V. Gregg, 10 Watts (Penn.), 168. 

p. 216. I 

Phillips y. Starr, 26 Iowa, 861. pp. 61, 64. I 
Phillips y. State, 6 Tex. Ct. of App. 831, < 

p. 814. 
Phillips y. Terry, 8 Abb. N. Y. Deols. 607, 

pp. 252. 265. I 

PhoBaix Ids. Co. y. Copeland, 86 Ala | 

651, p. 869. 
Plckard y. Bailey. 26 N. H. 152, p. 215. 
Pidcock y. i>otter, 68 Pn. St. 844, pp. 64. 

76, 108. 121, 16e. I 

Pierce y. Indseth, 106 U. S. 546, p. 211. I 
Pierce y. Northey, 14 Wis. 9, p. 829. 
Pierson y. Balrd, 2 Greene (Iowa), 233, 

p. 197. I 

Pierson v. People, 79 N. Y. 434, p. 111. 
Pierson y. People, 25 N. Y. Sup. Ct. 239, | 

p. 111. 
Pierson y. Wallace, 7 Ark. 282, p. 867. I 
Pigg y. State, 43 Texas, 111, p. 162. ' 

Pingery y. Cherokee, eic. By. Co., 78 i 

Iowa, 488, pp. 871, 873. 
Pinney y. Cahill, 48 Mich. 684, pp. 193, 1 

402, 40H. I 

Pinney's Will, 27 Minn. 280, pp. 9, 158, ! 

165. I 

Plttard y. Foster, 12 Ul. App. 132. pp. 9, ' 

158. 
Pitts y. State, 43 Miss. 472, pp. 119, 122. ! 
Pittsburg, etc. B. B. Co. y. Patterson, 

107 Pa. St. 461, pp. 349, 375. 
Pittsburgh, etc. B. B. Co. y. Boblnson, 

95 Pa. St. 426, p. 870. 
Pittsburg, etc. B. B. Co. y. Bote, 74 Pa. 

St. 362. p. 353. 
Plttaburg, etc. B. B. Co. y. Vance, 115 

Pa. Si. 325, pp. 875, 876 
Planters' Mut. laa. Co. y. Bowland, 66 

Md. 236. p. 250. 
Player y. Burlington, etc. B. B. Co., 62 

Iowa, 728, p. 89. 
Pleasant y. State, 16 Ark. 624. p. 90. 
Plo y. Bush, 71 Cal. 602, p. 447. 
Plunkett y. Bowman. 2 McCord, 139, p. 

291. 
Polbemus y. Heinman,. 50 Cal. 438, p. 

271. 
Polk y. CofliD, 9 Cal. 66, p. 267. 
Polk y. State. 36 Ark. 117, pp. 4, 6, 64, 88, 

119, 120, 185. 
Pollard y. W> born, 1 Hagg. Eco. B. 725, 

p. 176. 
Pollen y. Le Boy, 10 Bos. (N. Y.) 88, p. 

274. 



Pontius y. People, 82 N. Y. 41, li. 829. 
Poole y. Biohardson, 3 Mass. 830, p. 166. 
Pope y. FtUey, 9 Fed. Bep. 65, pp. 52, 

276. 278. 
Pope y. Askew, 1 Ired. 16, p. 822. 
Porter y. The Pequonnoc Mnfg. Co., 17 

Conn. 249, p. 18. 
Portland y. Kamm, 10 Oreg. 888, p. 870. 
Potts y. Aeohternacht, 98 Pa. St. 142, p. 

879. 
Potts y. House, 6 6a. 324, pp. 62, 166, 168. 
Powell y. State, 18 Tex. Ct. of App. 244, 

p. 119. 
Powers y. Mitchell, 77 Me. 861, pp. 67, 

180. 
Powers y. The State, 28 Texas App. 42» 

p. 12. 
Prather y. Boss, 17 Ind. 496, p. 274. 
Pratt y. Bawson, 40 Vt. 188, pp. 445. 460. 
Prewit y. People, 5 Neb. 384. p. 447. 
Price y. HarUhorn, 44 Barb. 655, p. 236. 
Price y. Powell, 3 N. Y. 322, pp. 76, 233. 
Printz y. People, 42 Mich. 144, p. 858. 
Prosser y. Wapello, 18 Iowa, 262, p. 369. 
Public School y. Bisley's Heirs, 40 Mo. 

356, p. 255. 
PuUmau y. Corning, 9 N. Y. 93, pp. 53, 

76. 
Puryear y. Beese, 46 Teuo. 21. p. 158. 



Quaife y. Chicago, etc. B. B. Co.. 48 Wis. 

513. p. 116. 
Queen y. Crouch, 1 Cox Cr. Cas. 94, p . 

412. 
Queen y. Shepherd, 1 Cox Cr. Cas. 237, 

p. 299. 
Qulnn y. Hlggins. 63 Wis. 661. pp. 66, 66, 

79. 
Quinn y. National, etc. Ins. Co., 1 Jones 

ACarey (Ir.).316, p. 247. 
Quinsigaiuoud Bank y. Hobbs, 11 Gray, 

250, pp. 67, 300. 

B. 

Railroad Co. y. Blxby. 67 Vt. 548, p. 866. 
Railroad Co. y. Foreman, 24 W. Va. 662. 

p. 870. 
Railroad Co. y. Lehman. 56 Md. 226, p. 

394. 
Railroad Co. y. Scbultz, 43 Ohio St. 270, 

pp. 8, 9, 13, 15. 
Rai;»ler y. Springer, 38 Ala. 703, p. 12. 
Baisin y. Clark. 41 Md. 156. p. 272. 
Ramadge y. Ryan, 9 Blng. 838, p. 82. 
Bambler v. Tyron, 7 S. & B. 90. pp. 156, 

158. 
Randull y. Chase, 133 Mass. 210, p. 333. 
Bandull y. Rotch, 12 Pick. (Mass.) 107, 

p. 271. 



XXXVlll 



TABLE OF CASES CITED. 



RtiDdnlpb V. Adams, 2 W. Va. 519, p. 265. 
Baiidolph V. Holden, 44 Iowa, 327, p. 271. 
Randcilph v. Laugblln, 48 N. T. 457, p. 

829. 
Rape y. Heaton, 9 Wis. 828, p. 199. 
Raridan v. Central, etc. Ry. Co., 69 Iowa, 

581, p. 849. 
Rash y. State 61 Ala. 89, pp. 126, 128. 
RdWls y. Am. Mnt. Life Ins. Co., 27 N. Y. 

282, p. 249. 
Ray y. State, 50 Ala. 104. p. 12. 
Raymond y. City of Lowell, 6 Cush. 

(Mass.) 624, p. 83. 
Raynbam y. Canton, 8 Pick. 298, pp. 201, 

206, 213. 
Read y. Barker, 80 N. J. Law, 878, p 267 ; 

8. C. 32 N. J. Law, 878. p. 267. 
Reading y. Men bam, 1 Moo. A R. 234, p. 

271. 
Real y. People, 42 N. Y. 270, p. 159. 
Reamer y. Nesmltb, 84 Cal. 627, p. 274. 
Reber y. Henlng, 115 Pa. St. 699, p. 67. 
Record y. Village of Saratoga Springs, 

46 Hnn, 450. p. 112. 
Reddin y. Gates, 62 Iowa, 210, p. 884. 
Redlont y. Newton, 17 N. H. 71, p. 287. 
Reed y. Dick. 8 Watts (Penn.), 479, p. 230. 
Reed y. Di als, 67 Cal. 491, p. 356. 
R«»ed y. New, 85 Kan. 727, pp. 857. 377. 
Reed y. Richardson, 98 Mass. 216, p. 272. 
Reed y. Spauldlng, 42 N. H. Ill, p. 821. 
Reed y. State, 62 Mls«. 405, p. 63. i 

Reed y. Wilson, 41 N. J. Law, 29, p. 394. . 
Reese y. Reese, 90 Penn. 89, pp. 2^, 294, 

800. 
Reeye y. Dennett, 145 Mass. 28, p. 189. 
Regina y. Dent, 1 C. & R. (47 E. C. L.) 96, 

p. 219. 
Regina y. Dyer, 6 Mod. 41, p. 8C3 
Regina y. Newman, 3 C. & E. 260, p. 90. 
Reglny y. Still, 32 Me. 370, p. 164. 
Regina y. Taylor, 6 Cox C. C. 58, pp. 840, 

413. 
Regina y. Williams, pp. 297. 300. 
Reid y. Ladue, 68 Mich. 22, p. 18. 
Reid y. Piedmont, etc. Life Ins. Co., 58 

Mo. 425, p. 82. 
Rellley y. Riyett, i Cases in Eng. Bcc. 

Cts. 43. n. a., pp. 299, 310. 
Renlhan y. Dennin, 103 N. Y. 573, pp. 

107, 110. 
Republican Valley R. R. Co. y. Arnold, 

18 Neb. 486, p. 370. 
Republican, etc. Co. y. Miner, 12 Col. 86, 

p. 18. 
Reyett y. Braham, 14 Term, 49, p. 298. 
Rex y. Cator, 4 Esp. 117, p. 299. 
Rex y. Despard, 28 Howell St. Tr. 846, p. 

447. 



Reynolds y. Jourdan, 6 Cal. 108, p. 274. 
Ri-ynolda y. Lounsbury, 6 Hill (N. Y.), 

634. p. 89. 
Reynolds y. Robinson, 64 N. Y. 689, pp. 

61,886. 
Rice's Saooession, 21 La. Ann. 614, p. 197. 
Rich y. Jones, 9 Cush. (Mass.) 887, p. 59. 
Richards y. Doe, 100 Mass. 624, p. 282. 
Richards y. Fuller, 88 Mich. 658, p. 446. 
Richards y. Murdock, 10 B. A C. 537, p. 

247. 
Richardson y. McGoldriok, 48 Mich. 476, 

p. 863. 
Richardson y. Newoomb, 21 Pick. 816, 

pp. 820, 829. 
Rider y. Miller, 86 N. Y. 607, p. 158. 
Rinehart y. Whitehead, 64 Wis. 42, p. 

130. 
Riordan y. Gugerty, 74 Iowa, 688. p. 808. 
Ripple y. Ripple, 1 Rawle (Penn.), 386, 

p. 199. 
Ritter y. Daniels, 47 Mich. 617, p. .380. 
Roberts y. Oommisnioners of Brown 

County, 21 Kan. 248, pp. 20, 867. 
Roberts y. Johnson, 58 N. Y. 613, pp. 48, 

104, 149. 
Roberts y. Ogdensbnrgh, etc. B. R. Co., 

29 Hun (N. Y.). 154, p. 184. 
Robertson y. Knapp. 85 N. Y. 91. p. 878. 
Robertson y. Sta*'k, 16 N. H. 109, pp. 20, 

352. 
Robinson y. Adams, 62 Me. 869, p. 166. 
Robinson y. Clifford, 2 Wash. C. C. 2, p. 

206. 
Robinson y. Fitchburg, etc., R. R. Co., 7 

Gray (Mass.), 92, p. 6. 
Robinson y. N. Y. Central R. R. Co., 9 

Fed. R. 877, p. 414. 
Robinson y. St. L., etc. K. R. Co., 21 Mo. 

A pp. 144, p. 242. 
Rochester, etc. R. R. Co. y. Budlong, 10 

How. Pr. 289, pp. 20, 25, 870. 371. 
Rochester y. Chester, S N. H. 864, pp. 6, 

362. 
Rodgers y. Kline, 66 MUs. 8<8. pp. 18, 

274. 
Roe y. Roe. 40 N. Y. Sup. Ct. 1, p. 294. 
Roe y. Taylor, 46 111. 486. p. 158. 
Rogers y. Ritter, 12 Wall. 317, p. 289. 
Root y. Merriwether, 8 Bush (Ey.),401, 

p. 200. 
Rose y. First Nat. Bank of Springfield, 

91 Mo. 399, pp. 821, 828, 842. 
Rouse y. Morris, 17 S. A R. (Penn.) 828, 

p. 384. 
Rowu y. Rawllngs, 7 East, 282, note a, 

p. 310. 
Rowe y. Yuba Co., 17 Cal. 61. p. 426. 
Rowell y. City of Ltiwell, 11 Gray 

(Ma88.),420. p. 180. 



TABLE OF CASES CITED. 



XXXIX 



Bowell ▼. Faller, 69 Vc. 688, pp. 833, 380, 

881. 
Rowland v. Fowler, 37 Conn. 848, p. 30. 
Bowley v. London, etc. B. R. Co., 8 Ex. 

(L. R.) «21, pp. 886, 887, 392. 
Bucker v. Wheeler, 127 U. S. 85, p. 445. 
Bolofl V. People. 45 N. T. 318, p. .333. 
Bnmsey v. People, 19 N. Y. 41, p. 188. 
Runyon v. Prlot*, 16 Oblo St. 14, p. 159. 
Bush y. Megee, 86 Ind. 69. pp. 61. 168. 
Bussell Y. Hayden. 40 Minn. 88, p. 366. 
Boasell v. Horn Pond, etc. B. B. Co., 4 

Gray, 6(7, p. 878. 
Bussell V. State, 68 Miss. 367, pp. 108, 

163. 
Ruthfrfnrd v. MorrU. 77 111. 397, p. 478. 
Ryoian v. Crawford, h6 lod. 26i, p. 168. 



S, 



S 



V. A . 3 Prob. DlT. (L. B.) 72, p. 

176. 
Sallwaaer t. Hazlit, 18 m. App. 243, p. 

20. 
Salyln v. Korth Brancepeth C^al Co., 

9 Oh. App. (L. B.) 706, p. 146. 
Salvo V. Duncan, 49 Wis. 157, p. 269. 
Sanborn v. Madeira Flume & Trading 

Co..70Cal. 261,p. 270. 
Sanchez ▼. People, 22 N. Y. 147, p. 169. 
Sanderson v. Ka8hua,44 N. H. 492, pp. 

84,122. 
Sanderson v. Osgood, 52 Vt. .309, p. 333. 
Sandwich Mnfg. Co. v. Nicholson, 32 

Kan. 666, p. 39. 
San Diego Land, etc. Co. v. Neale, 78 

Cal. 6.3, p. 39e. 
Sapb y. Atkinson, 2 £ng. Boc., B. 64, p. 

310. 
Sarle y. Arnold, 7 R. I. 586, pp. 40, 57, 

266. 
Sartorlons y. State, 21 Miss. 602, p. 90. 
Sasser y. State, 18 Ohio, 463, p. 344. 
Sayings Bank y. Ward, 100 U. S. 196, p. 

271. 
Sauter y. N. Y. Cent, R. R. Co., 13 N. Y. 

Sup. Ct. 451, pp. 887, 392. 
Sawyer v. Boston, 144 Mass. 470, p. 349. 
Scaggs y. Biltlinore, etc. B. B. Co., 10 

Md. 268. p. 6. 
Scharfi y. Keener, 64 Pa. St. 376, p. 286. 
Sohell y. Plumb, 66 N. Y. 698, pp. 387, 

392. 
Sobenck y.*Mercer Co. Ins. Co., 24 N. J. 

Law, 461, p. 249. 
Scberinerhorn v. Tyler, 11 Hun, 561, p. 

354. 
Schlencker y. State, 9 Neb. 250. p. 128. 
Schmidt y. Herfurth, 6 Bobertson (N. 

Y.), 124, p. 878. 
Schmltt y. Peoria Ins. Co., 41 111. 296, p. 

250; 8. C, 6 Ben. Fire Ins. Cases, 90, p. 

260. 



Schneider y. Manning, 121 111. 376, pp. 

119, 121, 168, 166. 
Schonp y. Schenck, 40 N. J. L. 196, p. 

380. 
Schroeder y. C.,B. I. etc. B. B. Co., 47 

Iowa, 375, pp. 176, 182. 
Schultz y. Linden, 30 Mo. 810, p. 266. 
Schwander y. Blrge, 46 Hun (N. Y.), 66, 

pp. 14, 16, 24. 68. 
Schwartzbach y. Ohio Valley Proteo 

tion Union, 21 Pa. St. 466, p. 249. 
Seals y. Edmondson, 71 Ala. 609, p. 283. 
Seayer y. Boston, etc. B. B. Co., 14 Gray 

(Mas9.),466. p. 241. 
Seamans y. !5mith, 46 Barb. (N. Y.) 320, 

p. 264. 
Seaman y. Foneiau,2 Strange, 1183, p. 

247. 
Seeley y. Brown, 15 N. J. L. 35, p. 380. 
Seibles y. Blackwull, 1 McM. (S. 0.) 57, 

p. 6. 
Seliger y. Bastlan, 66 Wis. 621, pp. 15, 16. 
Selma, etc. B. B. Co. y. Keath, 63 Ga. 

178, p. 37S,375. 
Semple y. Hager, 27 Cal. 163,1). 196. 
Senor y. Hoist, 31 Minn. 479, p. 361. 
Sexton y. Lamb, 27 Kan. 426, p. 351. 
Shafer y. Dean's Admr., 29 Iowa, 144, p. 

386. 
Shatter y. Eyans, 63 Cal. 82, p. 25. 
Sharp y. Hall, 86 Ala. 110, p. 18. 
Shattuck, y. Stoneham Branch B. B. 

Co., 6 Allen, 115, p. .370. 
Shattuck y. Train, 116 Mass. 296, p. 378. 
Shayer y. McCarthy, 110 Pa. St. 389, pp. 

9, 167. 
Shaw y. City of Charleston, 2 Gray 

(Mass.), 109, p. 851. 
Shaw y. Susquehanna Boom Co., 125 

Pa. St. 324, p. 35. 
Shawneetown y. Mason, 82 111. .337, pp. 

189, 191. 
Sheahan y. Barry, 27 Mich. 217, p. 445. 
Shed y. Augustine, 14 Kan. 282, p. 199. 
Sheldon y. Benham, 4 Hill, 129, p. 276. 
Sheldon y. Booth, 60 Iowa, 2u9, pp. 269, 

26(1, 368. 
Sheldon y. Warner, 45 Mich. 638, p. 306. 
Shelton y. State, 84 Tex. 666, pp. 119, 181. 
Shepard y. Ashley, 10 Allen (Mass.), 642, 

p. 362. 
Shepard y. Pratt, 14 Kan. 209, p. 6. 
Sherb y. Kinzle, 80 Ind. 600, pp. 319, 328. 
Sherman y. St. Paul, etc. B, B. Co., 30 

Minn. 227, p. 870. 
Shlfflett y. Morelle, 68 Texas, 382, p. 18. 
Short Mountain Coal Co. y. Hardy, 114 

Mass. 197, t). 18. 
Sbriyer y. Sioux City, etc. B. B.,24 Minn . 

506, p. 282. 
Shulce y. Hennessey, 40 Iowa, 352, p. 262. 
Sibley y. Smith, 46 Ark. 275, p. 183. 



TABLE OF CASES CITED. 



Slokel? V. Goald, 61 How. Pr. (X. Y.) 2S> 

p. 264. 
Sid well ▼. Robert, 1 Pa. sa^. p. 226. 
Bikes V. Paine, 10 Ired. (N. C.) Law, 282, 

pp. 89, 282, 445. 
8U1 v. Reese, 47 Oal. 848, p. 289. 
Silverthorne t. Fowle, 4 Jones (N. C.) 

Law, 862, p. 274. 
Simmons v. Means, 8 8. A M. (MlSB.) 897, 

p. 884. 
Simmons v. St. Paul, etc. R. R. Co., 18 

Minn. 168, p. 870. 
Simmons v. St. Panl, etc. R. R. Co., 19 

Minn. 184, p. 878. 
Simmons t Oarrier, 68 Mo. 416, p. 862. 
Slmonson v. C, R. L A P. R. Co., 49 Iowa, 

87, p. 887. 
Sims ▼. Maryatt, 17 Q. B. (79 E. C. L.) 292, 

p. 197. 
Sinndtt V. Mullin, 82 Pa. St. 842, p. 84. 
Sinclair v. Rousb, 14 Ind. 4A0, p. 867. 
Sioux City, etc. R. R. Co. v. Flnlaysun, 

16 Neb. 678, pp. 44, 184. 
Sirrine v. Briggs, 31 Mich. 448, pp. 377, 

878. 
Sisson V. Cleveland, etc. R. R. Co.. 14 

Mich. 489, pp. 350, 878. 
Sizer y. Burt, 4 Denio, 426, p. 91. 
Slater v. Wilcox, 57 Barb. 604, pp. 193, 

266. 
Slocoviob y. Orient Mut. Ins. Co., 108 

N. Y. pp. 66, 358» 880. 
Slussman y. Merkle, 8Boa. (N. Y.) 402* 

p. 881. 
Small V. Pool, 8 Ired. (N. O.) 47, p. 360. 
Smalley v. Appleton, 70 Wis. 840, pp. 11, 

189. 
Smith y. Clews, 114 N. Y. 190, p. 274. 
Smith y. Frost, 42 X. Y. Sup. Ct. 87, p. 

388. 
Smith y. Gould, 4 Moore, P. C. 21, p. 198. 
Smith y. Gugerty, 4 Barb. (N. Y.) 619, p. 

263. 
Smith V. Hickenbottora, 57 Iowa, 783, 

p. 61. 
Smith y. Mitchell, 12 Mich. 180, p. 860. 
Smith y. State, 55 Ala. 1, p. 11. 
Smith y. Tallapoosa Co., 2 Woods, 574, 

p. 196. 
Smith y. Walton, 8 Gill, 86, pp. 287,826. 
Smith y. Watson, 14 Vt. 832, p. .384. 
Smith y. Wilcox, 4 Hun, 411, p. 864. 
Smyth y. Caswell, 67 Tex. 673, p. 823. 
Snelllng y. Hale, 107 Mass. 184, p. 271. 
Snider y. Burks, 84 Aia. 63, p. 3-28. 
Snow y. Boston, etc. B. R. Co., 65 Me. 

280, pp. 4, 20, 870. 
Snow y. Grace, 29 Ark. 188, p. 12. 
Snow V. Wlggln, 19 111. App. 542, p. 825, 



Snowdon y. Idaho Quartz Mnfg. Co., 66 

Cal. 450, p. 89. 
Snyder y. Iowa City, 40 Iowa, 646, pp. 

422, 426. 
Snyder y. McKeever, 10 Brad. (111.) 190, 

p. 290. 
Snyder, v. State, 70 Ind. 849, pp. 446, 490. 
Snyder y. Western Union R. R. Co., 26 

Wis. 60, p. 870, 878. 
Solarte y. MeWiUe, 7 B. A C. 430, p. 446. 
Soquet y. State, 72 Wis. 659, pp. 102, 404. 
Sorg y. First German Congregation, 68 

Pa. St. 166, pp. 89, 55. 
South, etc. R. R. Co. v. McLendon, 68 

Ala. 266, p. 11. 
Southern Life Ins. Co. y. Wilkinson, 58 

Ga. 686, p. 66. 
Southern Kx. Co. y. Thornton, 41 Miss. 

216, p. 288. 
Southey y. Nash, 7 C. A P. 632, p. 90. 
Southwestern Freight, etc. Co. y. Stand- 
ard, 44 Mo. 71, p. 272. 
Sowers y. Dukes, 8 Mtnn. 23, pp. 15, 20. 
Sparrow y. Harrison, 8 Curteis. 16, p. 

176. 
Spaulding y. Vincent, 24 Vt. 601. pp. 206, 

210. 
Spear y. Bone, 5 A. & E. 709, pp. 2»7, 2U9. 
Spear y. Drainage Commissioners, 118 

111. 63i, pp. 12, 370. 
Spear y. Hlles, 67 Wis. 867, p. 118. 
Spear y. Richardson, 37 N. H. 23, pp. 

68, 64. 
Speiden y. State, 3 Tex. Ct. of App. 159, 

p. 397. 
Spickerman y. Clark, 9 Hun, 183, p. 280. 
Splya y. Stapleton, 88 Ala. 171, p. 266. 
Spottiswood y. Weir, 66 Cal. 525, pp. 332, 

Springer y. Hall, 83 Mo. 698. pp. 294, 321. 

878. 
Springfield y. Schmook, 68 Mo. 394, p. 

360. 
Springfield y. Worcester, 2 Cush. 

(Mass.) 62, p. 197. 
Stafford y. City of Oskaloosa, 64 Iowa, 

251, p. 26. 
Stambaugh y. Smitb, 23 Ohio St. 5S4, p. 

278. 
Stanford y. Pruet, 27 Ga. 248, p. 199. 
State y Ah. Chuey, 14 Ney. 79, p. 178; s. 

C, 1 Cr. Law Mag. 634, p. 178. 
State y. Alien, 1 Hawk's L. & Eq. (X. C.) 

6, p. 344. 
State y. Anderson, 10 Oregon, 448, pp. 

25,66. 
State y. Archer, 64 N. H. 465, p. 156. 
State y. Babb, 76 Mo. 601, p. 10. 
State y. Bailey, 4 La. Ann. 376, p. 458. 
State y. Baptlste, 26 La. Ann. 134, p. 119. 



TABLE OF CASES CITED. 



xli 



State y. Baldwin, 86 Kan. 1, pp. 8, 10, 961, 

400,408. 
State y. Benner, 64 Me. 267, p. 88. 
State y. Boban, 19 Kan. S8, p. 4!«. 
State y. Bowman, 80 N. O. 482, 487 p. 86. 
State y. Bowman, 78 N. O. 600, pp. 68, 

119, 184. 
State y. Brooks, 92 Mo. 642, p. 86. 
State y. Bryant, 98 Mo. 278, p. 158. 
State y. Candler, 8 Hawk's LawABq. 

(N. C.) 898, p. 844. 
State y. Carr, 6 X. H. 869, p. 840. 
State y. Cheo Gong, 17 Oreg. 688, pp. 127, 

256. 
State y. Cheek, 18 Ired. (N. C.) 114, p. 

845. 
State y. Clinton, 67 Mo. 880, pp. 821, 328, 
State y. Clark, 15 S. C. (N. S.) 408, pp. 4. 

20,99, 119. 
State y. Clark, 12 Ired. (X. C.) 161, pp.21, 

102, 124, 127. 
State y. Cob, 63 Iowa, 695, p. 55. 
State y. Cole, 68 Iowa, 696, pp. 89, 42, 54, 

185. 
State y. Cole, 94 N. C. 968, pp. 61, 71, 
State y. Cook, 17 Kan. 892, op. 105, 186, 

137, 188. 
State y. Cross, 68 Iowa, 180, pp. 66, 128. 
State y. Coollar, 47 Tex. 804, p. 217. 
State y. DoUar, 66 N. C. 626, p. 422. 
State y. BUington, 7 Ired. (N. C.) 67, p. 

447. 
State y. Erb, 74 Mo. 199, pp. 9, 168, 161. 
State y. Felter, 26 Iowa, 67, pp. 63, 76, 162, 

169. 
State y. Finch, 70 Iowa, 816, p. 366. 
State y. Fitzsimmons, 80 Mo. 286, p. 90, 
State y. Folwell, 14 Kan. 106, pp. 8, 10. 
State y. Gay, 94 N. C. 814, p. 286. 
State y. Gedicke, 48 N. J. Law, 86, pp. 116, 

117. 
State y. Geddis, 42 Iowa, 268, p. 156. 
State y. Gee, 85 Mo. 647, p. 447. 
State y. Giyens, 5 Ala. 754, pp. 310, 328. 
State y. Glass, 5 Oreg. 73, p. 76. 
State y. Graham, 74 N. C. 646, p. 179; s. c, 

21 Ara. Bftp. 493,p. 179. 
State y. Grant, 79 Mo. 113, p. 89. 
State y. Hackett, 70 Iowa, 442, p. 490. 
State y. Hanley, 84 Minn. 430, p. 66. 
State y. Harris, 5 Ired. (S» C.) Law, 287, 

p. 845. 
State y. Harris, 63 N. C. 1, p. 181. 
State y. Hastings. 63 N. H. 462, pp. 821, 
State y. Hayden, 61 Vt. 296, pp. 59,81, 168. 

830. 
State y. Hinkle, 6 Iowa, 880, pp. 58, 185, 

188. 
State y. Hlnchman, 27 Pa. St. 479, p. 200. 
State y. Hockett, 70 Iowa, 442, p. 192. 



State y. Hooper, 2 Bailey (S. C.) Law, 

87, pp. 88, 846. 
State y. Hogard, 12 Minn. 293, p. 444. 
State y. Houston, 78 Ala. 676, p. 11. 
State y. Hoyt, 46 Conn. 880, pp. 167.418. 
State y. Huzford, 47 Iowa. 16, p. 10. 
State y. Isaacson, 1 F. & F. 194, p. 90. 
State y. Jacobs, 6 Jones (N. C.) Law. 284, 

p. 278. 
State y. Jackson, 2 Dey. (X. 0.) 668, 

p. 226. 
State y. Jarrett, 17 Md. 309, p. 197. 
State y. Jones, 41 Kan. 809, p. 126. 
State y. Jones, 68 N. C. 448, pp. 130, 181. 
State y. Keene, 100 N. C. 509, p. 18L 
State y. Klinger, 46 Mo. 224, pp. 76, 158. 
State y. Knapp, 45 N. H. 148, pp. 152, 166. 
State y. Knight, 43 Me. 1, pp. 127, 182, 141, 

142, 144. 
State y. Lautenschlager, 22 Minn. 521, 

p. 71. - 
State y. Leabo, 88 Mo. 247 p. 86. 
State y. Maynes, 61 Iowa, 119, p. 41. 
State y. Matthews, 66 N. C. lU, pp. 118, 

130. 
State y. McKean, 4 Gray, 29. p. 447. 
State y. McLaughlin, 44 Iowa, 82, p. 89. 
State y. Medlcott, 9 Kan. 289, p. 58. 
State y. Morgan, 96 N. C. 641, p. 119. 
State y. Morphy, 3.1 Iowa, 272, pp. 127, 

ISO. 
State y. Morris, 147 Conn. 179, p. 393. 
State y. Morris. 84 X. C. 766, p. 10. 
State y. Murphy, 9 Xev. 894, p. 182. 
State y. Nash, 8 Ired. (N. C.) 35, p. 447. 
State y. Nat, 6 Jones (N. C), 114, p. 448. 
State y. Xewlln, 69 Ind. lu8, p. 158. 
State y. O'Brien, 7 B. I. 336, pp. 404, 408. 
State y. O'Conner, 13 La. Ann. 4>}6,p. 197. 
State y. Owen, 73 Mo. 440, p. 811. 
State y. Parker, 96 Mo. 382, p. 12. 
State y. Phalr, 48 Vt. 6.S6, pp. 3, 297, 2m. 
State y. Plko, 49 X. U. 399, pp.34, 119, 1:28, 

166, 187. 
State y. Porter, 34 Iowa, 131, pp. 37,127, 

130. 
State y. Portland Publishing Co., 68 Me. 

279, p. 10. 
State y. Potts, 100 X. C. 457, p. 157. 
State y. Powell, 7 X. J. Law, 296, pp. 125, 

180. 
State y. Rainsberger, 74 Iowa, 1%, pp. 

129, 182. 
State y. Beddick, ?Kan. 143, pp. 101, 102, 

108. 
State y. Reitz, 83 X. C. 634, p. 10. 
State y. Salge, 2 Xey. 321, p. 90. 
State y. Bayers, 58 Mo. 685, p. 88. 
State y. Scott, 45 Mo. 302, pp. 287,821,328. 



xlii 



TABLE OF CASES CITED. 



State ▼. Secrest, 80 N. 0. 460, pp. 99, 41,42, 

187, 445. 
State T. Shlnbom, 46 N. H. 497, pp. 18, 

294,821. 
State y. Sbelton, 64 Iowa, 833, p. 10. 
State ▼. Slagle, 88 N. 0. 630, pp. 99, 186. 
State.v. Sorenaon, 32 Minn. 12(', p. 26. 
State ▼. Small wood, 76 N. C. 104, p. 446. 
State y. Smith, 82 Me. 370, pp. 119, 164. 
State y. Smith, Phillips (N. C.) Law, 

802, p. 152. 
State y. Smith, 49 Conn. 876, p. 88. 
State y. Speaks, 94 N. C. 865. p. 100. 
State y. Stair, 87 Mo. 268, p. 886. 
Stiles y. Steele, 87 Kan. 562, p. 18. 
State y. Struble. 71 Iowa, 11, p. 181. 
State y. Surtly, 2 Hawk's (N. 0.), 441, p. 

199. 
State y. Telpner, 86 Minn. 682, p. 436. 
State y Terrill, 12 Ricb. (S. O ) 821, pp. 47, 

121, 122, 136. 
State y. Thompson, 80 Me. 194, pp. 286, 

820, 881. 
State y. Tompkins, 71 Mo. 618, pp. 298. 

897, 388. 
State y. Tutt, 2 Bailey (3. C.) Law, 87, p. 

345. 
State y. Twitty, 2 Hawks (N. 0.), 248, p. 

199. 
State y. Upton, 20 Mo. 897, p. 4U. 
State y. Vines, 98 M. C. 493, p. 186. 
State y. Ward, 89 Vt. 825, pp. 39, 296, 880, 

881. 
State y. Watson, 65 Me. 74, pp. 81, 249. 
State y. West, Houston O. C. 371, p. 418. 
State y. Whitacre, 96 N. C. 758, p. 856. 
State y. Windsor, 5 Harr. (Del.) 618, pp. 

161, 168, 167, 168, 475. 
State y. Williams, 42 Conn. 861, p. 447. 
State y. Wllcoz, 57 Barb. 604, p. 20. 
State y. Winter, 72 Iowa, 627, pp. 158, 

897, 410. 
State y. Wood, 58 N. H. 484, pp. 47, 108, 

154. 165. 
State y. Zellers, 7 N. J. Law, 820, p. 90. 
SteagaU y. State, 24 Tex. Ct. of App. 207, 

p. 189. 
Steamboat y. Ix>gun, 18 Ohio, 375, pp. 

281, 238. 
Steam Packet Co. y. Sickles, 10 How. 

(U.S.) 419, p. 864. 
Stearlne y. Hentzman, 17 C. B. (N. S.) 

66, p. 276. 
Stearns y. Field. 90 N. Y. 640, p. 65. 66. 
Stennett y. Ben. Fire Ins. Co., 42 N.J. 

Law, 46, p. 260. 
Stennett y. Pa. Fire Ins. Co., 68 Iowa, 

674, p. 247. 
Stephenson y. Bannister, 8 Bibb (Ky.), 

369, p. 1^. 



Steyens y. Brennan, 79 N. Y. 255, p. 58. 
Stewart y. Redditt, 8 Md. 67, p. 158. 
StilliDg y. Town of Thorp, 54 Wis. 588, p. 

404. 
Stillwater Turnpike Co. y. Cooyer, 26 

Ohio, 620, p. 14. 
StiUweU Mnfg. Co. y. Phelps, 180 U. 8. 

520, p. 65. 
St. George y. Biddeford, 76 Me. 598, p. 

166. 
St. Joseph, etc. R. B. Co. y. Orr, 8 Kan. 

419, p. 860. 
St. Louis, etc. B. R. Co. y. Anderson, 39, 

Ark. 167, p. 870. 
St. Louis, etc. R. R. Co. y. Chapman, 88 

Kan. 807, pp. 349, 870. 
St. Louis Mut. Life Ins. Co. y. Grayes, 6 

Bush (Ky.), 290, p. 82. 
St. Louis, etc. R. R. Co. y. Haller, 82 111. 

208, p. 849. 
St. Louis, etc. R. R. Co. y. Ritz, 33 Kan. 

404, pp. 16,26. 
St. Louis, etc. R. R. Co. y. Smith, 42 Ark. 

266, p. 860. 
St. Louis, etc. R. R. Co. y. Vickers, 122 

U. S. 860. p. 445. 
Stokes y. Macker, 62 Barb. (N. Y.) 146, 
p. 197. 
. Stokes y. State, 6 Bazt. 619, p. 179; s. C, 
I 80 Am. Rep. 72, p. 179. 
Stondenmeier y. Williamson, 29 Ala. 

558, p. 397. 
Stone y. Chicago, etc. R. R. Co., 66 Mich. 
I 76. pp. 490, 491. 
! Stone y. Coyell, 29 Mich. 868, p. 378. 
Stone y. Hubbard, 7 Cush. (Mass.) 695, 
I p. 302. 

: Stone y. Tupper, 68 Vt. 409, p. 878. 
Stone y. Watson, 87 Ala. 279, p. 189. 
Storey y. Salomon, 6 Daly (N. Y.),688, 
I p. 276. 

I Storer's Will, 28 Minn. 9 p. 71. 
Storm y. United States, 94 U. S. 76, p. 89. 
' Story y. Maday, 8 Mon. (Ky.) 480, 488, 
p. 24. 
Stowe y. Bishop, 58 Vt. 498 p. 16. 
I Stowe y. Bishop, 68 Vt. 498, p. 80. 
; Stranger y. Searle, 1 Esp. 14, pp. 290,294. 
' Stroh y. Hinchman, 87 Mich. 490, p. 87. 
Strohm y. X. Y., etc. R. R. Co., 96 X. Y. 
I 306, p. 123. 

' Strong y. Kean, 18 Irish Law R. 93, p. 64. 
Strother y. Lucas, 6 Pet. 763, pp. 196, 310, 

828. 
Stumore y. Shaw, 68 Md. 11, 19, p. 26. 
I Stuart y. Hayen, 17 Xeb. 814, p. 184. • 
; Sturgis y. Knapp, 38 Vt. 486, pp. 28. 856 



TABLE OF CASES CITKD. 



xliii 



dturm V. WUllams, 88 N. Y. Sup. Ct..326, 

p. 274. S57. 
^Dllivau ▼. Lear, S3 Fla. 468, pp. 868, 86fi. 
SumiDera v. U. S. Ins. Co., 18 La. Ann. 

604, p. 247; 9. C, 1 Blgelow Ina. Caa. 

181, p. 247. 
Summer v. State, 5 Ct. of Appeala, 874, 

p. 486. 
SuastfX Peerage Case, 11 CI. A F. 85, pp. 

204, 216, 220, 228, 409. 
Satberland ▼. Hawkins, 66 Ind. 848, p. 

168. 
Swan V. County of Middlesex, 101 Mass. 

173, p. 870. 
Swan y O'Fallon, 7 Mo. 281, p. 801. 
Sweet T. Shumway, 102 Mass. 866, pp. 46, 

868, 276, 875. 
Sweet ▼. Wrlgbt, 62 Iowa, 215, p. 82. 
Sweetser v. Lowell, 88 Me. 446, pp. 298, 

294,829. 
Swift T. Stevens. 8 Conn. 4.^1, p. 446. 
Sydleman v. Beckwitb, 48 Conn. 9, p. 

9. 
Syme y. Stewart, 17 La. Ann. 73, p. 199. 
Squires y. City of Cbllloothe, 89 Mo. 

2i6, p. 109. 



T. 

Talc y. Hull, 71 CuL 149, p. 18. 

Tttlbot v. Seeman, 1 Crancb, 88, p. 198. 

Tarpennlogy. Corn Ezcbange Ins. Co., 

48 N. Y. 279, pp. 20, 867, 357. 
Tate y. M, K. & T. B. B. Co., 64 Mo. 149, 

p. 378. 
-Tatum y. Mobr, 21 Ark. 349, pp. 121, 445, 

476. 
Taylury Asbton, 11 M. & W. 400. p. 446. 
Taylor y. Bank of Illinois, 7 B. Mon. 

(Ky.) 516, p. 207. 
Taylor v. Commonwealtb,109 Pa. St. 262, 

pp. 167, 160. 
Taylor y. Cook, 8 Price, 660, p. 310. 
"Taylor v. Freneb Lumbering Co., 47 

Iowa,'662,p.258. 
Taylor y. Grand Trunk B. B. Co., 48 N. 

H. 804, pp. 102, 116. 
Taylor y. Monnot, 4 Duer (N. Y.), 116, p. 

30. 
Taylor y. Penquite, 86 Mo. App. 889, 402, 

p. 18. 
Taylor y. Bunyan, 9 Iowa, 622, p. 199. 
Taylor y. Town of Monroe, 48 Conn. 86, 

pp. 14,20,28,26. 
Taylor Will Case, 10 Abb. Pr. (N. S.) 800, 

p. 838. 
Tebbetts y. Hasklns, 16 Me. 288, pp. 20, 

262, 861, 377. 
Tellt y. Wilcox, 6 Kan. 46, pp. C4, 76. 



Telegrapb Co. y. Cooper, 71 Tex. 607, p. 

119. 
Telepbone Telegrapb Co. y. Forke, 2 

Tex. App. Clyil Cas. 318, p. 870. 
Templeton y. People, 8 Hun, 357, p. 465, 

B. O., In 60 N. Y. 643. 
Tenor y. Jobnson, 107 Ind. 69, 448. 
Terra Haute, etc. B. B. Co. y. Crawford, 

100 Ind. 580, p. 862. 
Territory y. Kagan, 8 Dak. 119, pp. 127, 

18L 
Territt y. Woodruff, 19 Vt. 183, pp. 199, 

206. 
Terry y. McNeil, 58 Barb. (N. Y.) 241, p. 

878. 
Texas, etc. B. B. Co. y. Eddy, 42 Ark. 

627, p. 870. 
Texas, etc. B. B. Co. y. Klrby, 44 Ark. 

103, p. 870. 
Tbatober y. Kaucber, 2 Col. 696, p. 868. 
Tbayer y. Dayis, 88 Vt. 163, p. 69. 
Tbayer y. Proyldenoe Ins. Co., 70 Me. 

689, p. 249. 
Tbe Clement, 2 Curtis, 863, p. 196. 
Tbe Scotia, 14 Wall. 171, pp. 196, 197. 
Tbomasy. Mallinckrodt, 48 Mo. 65, p. 

878. 
Tbomas y. State, 40 Tex. 66, pp. 6, 167, 

474. 
Tboiuaa y. State, 18 Tex. Ct of App. 213, 

p. 804. 
Tbomas y. State, 103 Ind. 419, pp. 288, 

844. 
Tbompson y. Bennett, 2 Upper Canada 

(U. P.), 893, p. 310. 
Tbompson y. Bertrand, 28 Ark. 780, pp. 

189, 191. 
Tbompson y. Boyle, 36 Pa. St. 477, pp. 

881,382. 
Tbompson y. Dlckbart, 66 Barb. (X. Y.) 

604, p. 867. 
Tbompson y. Hall, 45 Barb. (N. Y.) 216, 

p. 7. 
Tbompson y. Moiles, 46 Mlcb. 42, pp. 360, 

376. 
Tbompson y. Biggs, 6 Wall. 663, p. 271. 
Tbompson y. Treyanion, Skinner, 4( 2, 

p. 114. 
Tlerney y. Minnesota, etc. B. B. Co., 38 

Minn. 311, p. 11. 
Tingley y. Cowglll, 48 Mo. 294, p. 61. 
Tlngley y. Proyidence, 8 B. 1. 498, p. .S70. 
Tinney y. New Jersey Steamboat Co., 

12 Abb. Pr. (N. 8.) 1, pp. 187, 262. 470. 
Titlow y. Titlow, 54 Pa. St. 216. p. 156. 
Tobin y. Sbaw, 45 Me. 331, p. 10. 
Tolson y. Inland Coasting Co., 17 D. C- 

89, p. 13. 
Tome y. Parkersburg, etc. B. B. Co., 39 

Md. 86, pp. 825, 828, 836. 



Xliv TABLE OF CASES CITED. 



864. 

U. 



Toomy v. Kay, 62 Wis. 104. p. 2M. Tyler v. Trabae, 8 B. Mon. (Ky.) 606, pp. 

Tupeka v. Sherwood, 89 Kan. 690» p. 13. Id9, 201, 214. 

Toulandon v. Laohenmeyar, 1 Sweeny ' Tyng v. Fields, S N. T. Sup. Ct. 672, p. 

(N. Y.), 46, p. 205. 
Towle V. Blake, 48 N. H. 92, p. 116. 
Townsdin v. Matt, 19 Kan. 282, p. 191. 

Townsend J- Brundage. 6 Tnomp., etc. ^dderzook y. Commonwealth, 76 Pa. St. 

(N. r.)027, p 864. 840 T> 33a 

Townsend v.PepperelI.» Maw. 40. pp. uh.e, V^gemple. J O.E.Green (N. J.). 

^'"' ""• »8 n 190 

''"'ts^W^TT ""• '• °°- ** ''"° Under'wood ;. Waldron. 80 Mich ^, p. 

(N. X.),100, p. 121. ^^ 



Traoy Peerage Oase, 10 O. & F. 154, pp. 

802, 468, 465. 
Tracy v. Swartout, 10 Pet. 80, p. 446. 
Trap aportttt ion Line v. Hope, 95 U. 8. 

297, pp. 75, 230. 
TruYltf V. Bi-own, 43 Pa. St. 9, 18, 14, pp. 

4, 324, 329. 
Treat v. Bates, 27 Mich. 390, p. 490. 



United Brethren Mat. Aid Society t. 

O'Hara, 120 Pa. St. 256, pp. 190, 191. 
United States v.Darnaud, 3 Wttll. Jr. 143,. 

p. 461. 
United States v. De Coarsey, 1 Plnney 

(Wis.). 508, p. 198. 
United Statea v. Faalkner, 35 Fed. Rep. 

730. p. 116. 



Jrelawney V.Coleman, 2 StHikle, 168, p. ^^,^^J ^^^^^'^ ^ ^^^^ ^^ ^^^^ L. J. 



Traitc V. Balrd, 12 Kan. 420, p. 349. 



I 193. p. 482. 
Tubbs V. Garrison. 68 Iowa. 44, p. 308. | UnlU,dJ^tates v. Jones. 10 Fed. Rep. 489, 
Tucker V. Donald, 60 Ulaa. 460. pp. 891. p„,, J^ ^^^^ ^ Kllpatrlck, 16 Fed. lU-p. 
Tucker y. Mass. Cent. R. K. Co . 118 Mass. | p„,;^J |,- ^J, , ^^,„y^ g, j,^^ ^^p „^ 



546. p. 40. 



p. 4S6. 



■^""ilf ▼■Williams. 2 Hilton (K. Y.). u„„ed states v. Mathlas, 86 Fed. Rep. 

'**' P- '"*• I 8<2. pp 2W, 811. 

Tunis y.K.Ud.l2 Ala. 648. pp. .W. 41. 48, I united States v. McGlue. 1 CurtU 0. U. 

* 1 PP li2 486 

Turnbuil v. Dodds. 6 Dunlop, 901, pp. united states v.McMiUln, 29 Fed. Rep 

297.462. 247, p. 329. 

Tarnball v Kjchardson 69 Mich, 400, | ^nUeu State, v. Otega,4 Wa»h. C. C. 

pp. 66, 68, 78, 88, 381, 382, 383. 588 p 205 

Turner v. Hand, 3 Wall. Jr. tS 461 | belted' SUte* v. Pendergast, 3 Fed. Rep. 

Turner v. Black Warrior, 1 McAllister, ' ^^^g •) 453 

181, p. 146. ^ _ .. „ United States v. Reading R. R. Co , 123 

Turner v. City of Newburgh, 109 N. Y. U S 113 d 445 

301, pp. 118, 122. United Stales v. Turner, 11 How. 663, 

Turner v. Cook, 36 Ind. 129, p. 6. ^g- j,^y 

Turner v. Kansas City. etc. R. R. Co., 23 ^nitei States v. Wiggins. 14 Pet. 384. 

Mo. App. 13, p. 158. p jgy 

Turner v. AlcFee, 61 Ala. 468, p. 10. ^nion Ins. Co. v. Smith, 124 L*. S. 405. pp. 

Turner v. Turner, 5 Jur. (N. S.)839, p. 2^4 i\tQ 

*^^" I Union Pacific B. B. Co. v. Clopper, 2 

Tuttle V. Rainey, 98 N. C. 513, pp. 288, I Am. and Eng. R. R. Cases, 649, p. 

322. I 252. 

Tutton V. Darke, 5 Hurl. & Norman, 647. Upatone v. Th« People, 109 III. 169, pp. 

p. 398. I 11,158. 

Trombly v. Leach, 11 Cush. (Muss.) 405, ! y 

pp. 149, 187. I 

Twcgood V. Hoyt, 42 Mich. 609, p. 256. ' Van Atta v. McKinney, 16 X. J L. 23o. p. 

Tylerv. State, llTex.Ct. of App.888,p. ^ J:' . , ^ „ , ,. ,., v. r ,. 
^„^ *'*'»*' Van Buskirk v. Mulock, 18 K. J. IS*, pp. 

^^^' I 19t). 210. 

Tylpr V. Todd, 86 Conn. 218, pp. 89, 319, I van Deusen v. Hooper. 2 Bailey (S. t .) 

3'^- I Laws, 37, p. 88. 



TABLE OF CASES CITED. 



xlv 



Van Hoesen v. CameroD, 54 Mloh. e09, p. 

68. 
Van Horn v. Keenan. 28 111. 445, p. 166. 
Van Huss v. BalnboU, 42 Tenn. 189, p. 

156. 
Van Sickle v. People, 29 Mloh. 64, p. S28. 
Van Wyck v. Mclntosb. 14 N. T. 439, pp. 

3-29. S48 
Van Wycklen v. City of Rrooklyn, 41 

Hun (y.Y.), 418. p. 24. 
Van Zandt v. Mut. Benefit Life Ins. Co., 

55 N. Y. ITS. p. 61. 
VBnrlcr Donckt v. Tbelluson.S Man. G. 

& S. (65 Eng. C. L ) 812, pp. 43, 216. 
Vandine v. Burpee, IH Met. (Mass.) 288. 

p. 264. 
Vates V. Cornelius, 59 Wis. 615, p. 198. 
Veerhusele v. Chicago, etc. R. R. Co., 53 

Wis. 689, p. 25. 
Vicksbuig.etc. R. R. Co. ▼. Putnam. 118 

U. .S. 545. pp. 392. 445. 
Vinton V. Peck, 14 Mich. 287, pp. 301, 820. 



W. 

Wabash, etc. R. R. Co. v. Pratt, 16 

Bradw. (111.) 177, p. 268. 
Whco, etc. R. R. Co. v. Shirlpy, 45 Tex. 

355, p. 365. 
Wade V. De Witt. 20 Tex. 898. p. 416. 
Wager v. Schuyler, 1 Wend. (N. Y.) 563. 

pp. 3S7, 392. 
Wagner v. Jacoby, 26 Mo. 630, pp. 20, 

293. 
Wagner v. Ruply, 69 Tex. "00, p. 823. 
Walte V. State. Sd Tex. Ct. of App. 169, 

pp. 128. 130. 
Walker v. Fields, 28 Ga. 237, pp. 52, 68, 

258. 
Walker v. Forbes, 31 Ala. 9. p. 212. 
Walker v. Rogers, 24 Md. 237. p. 64. 
Walker v. State, 102 Ind. 502, p. 168. 
Walker v. State, 7 Tex. Cc. of App. 245, 

p. 179. 
Walker v. State, 5S Ala. 393, pp. 10, 257. 
Walker v. Steele, 121 Ind. 436, p. 319. 
Walker v. Walker, 14 Ga. 242, p. 168. 
Wallace v. Finch, 24 Mich. 265, p. 373. 
Wallace v. Goodall, 18 N. U. 439, p. 256. 
Walsh V. Darst, 12 Wis. 686, p. 199. 
Walsh V. Sayre, 62 How. Pr. 384, p. 182. 
Walsh V. Washington Marine Ins. Co., 

32 N. Y. 427, p. 280. 
Ward V. Kilpatrick, 86 X. Y. 413, p. 268. 
Ward V. Salisbury, 12 111. 369, p. 235. 
Ware v Ware, 8 Me. 42, pp. 401, 444. I 

Warren v. Anderson, H Scott, 384, p. 287. 
Warren v. Spencer Water Co., 143 Mass. 

155, p. 366. 



Washburn v. Railroad, 57 Wis. 864. pp. 

849, 870, 487. 
Washburn v, Cnddihy, 8 Gray, 430, p. 

413. 
Washington v. Cole, 6 Ala. 212, pp. 39, 

86, 121. 122. 
Washington, etc. Co. v. Webster, 68 

Me. 449. p. 353. 
Waterbury Brass Co. v. N. Y., etc. Co., 

8 Fisher's Pat. Cas. 43, p. 270. 
Waters v. Waters, 85 Md. 631, p, 168. 
Watson V. Cresap. 1 B. Mon. (Ky.) 1%, 

p. 345. 
Watson V. Davis, 7 Jones, 178. p. 322. 
Watson ▼, Milwaukee Ry. Co., 67 Wis. 

382, p. 3.)0. 
Way T. Illinois Cent. R. R. Co., 40 Iowa, 

841, p. 13. 
' Weane ▼. E. A D. M. R. Co., 46 Iowa, 666, 

p. 29. 
Weaver v. Alabama, etc. Co., 88 Ala. 

176, p. 234. 
I Webb V. Paige, 1 Car. & K. 26, p. 438. 
Webb V. State, 9 Tex. Ct. App'. 490, p. 69, 

78. 
Webb V. State, 5 Tex. Ct. of App. 696, p. 

167. 
Weber v. Creston, 76 Iowa, 16, p. 191. 
Webber v. Eastern R. R. Co.. 2 Met. 

(Mase.),147.p. 374. 
Welch V. Brooks, 10 Rich. (S. C.) 124. p. 
Welch V. Ins. Co., 23 W. Va. 288, p. 26. 
Welch V. Ware, 32 Mich. 77, p. 446. 

122. 
Wtrlde V. Welde, 2 Lee, 680. p. 172. 
Wellman v. Wellraan, 8 C. & P. 380, p. 

287. 
Wells V. Eastman. 61 X. H. 607, p. 265. 
Wendell V. Troy, 39 Barb. (N. Y.) 329, 

p. 188. 
West V. State, 22 N. J. Law, 241, pp. 810, 

326, 329. 
West Newbury V. Chase, 5 Gray (Mass.), 

421, p. 373. 
Western Ins. Co. v. Tobin, 32 Ohio St. 

77, pp. 230, 231. 
Western Union Telegraph Co. v. Coop- 
er, 71 Tex. 507, p. 188. 
Westmore.v. Sheffield, 166 Vt. 239, p. 158. 
Weston V. Foster, 2 Curt. C. C. 119, p. 

235. 
Weatover v. JEtnA Life Ins. Co., 99 N. Y. 

56, p. 109. 
Wetherbee's Exrs. v. Wetherbee's 

Heirs, 38 Vt. 464, p. 113. 
Whelan v. Lynch, 60 X. Y. 469, p. 378. 
White T. BaUey, 10 Mich. 166, p. 18, 81, 

165. 
White V. Ballou, 8 Allen, 408, pp. 16, 25. 
White V. Clemens, 39 Ga. 282, p. 278. 



xlvi 



TABLE OF CASES CITED. 



White Deer Creek Improvement Co. v. 

Sassman, 67 Ptt. St. 416, pp. 966, 870. 
White T. Graves, 107 Mass. 825, pp. 87, 

169. 
White V. Milwaukee, etc. B. B. Co., 61 

Wis. 636, p. 188. 
Whitman v. Boston, etc. B. B, Co., 7 

GrHy, 818, p. 873. 
Whltcomb V. State, 41 Tex.^125, p. 167. 
Whltmore v. Bishoff, 5 Hun (N. V.), 176, 

p. 867. 
Whltmore v. Bowman, 4 G. Greene 

(Iowa), 148, pp. 20,867. 
Whitney v. Chicago A N. W. B. B. Co., 

27 Wis. 327, p. 278. 
Whitney v. City of Boston, 98 Mass. 316, 

p. 856. 
Whitney v. Thatcher, 117 Ma^s. 526, p. 

877. 
Whltbeck v. N.Y., etc. B. B. Co.. 86 Barb. 

(N. Y.) 644, p. 859. 
Whitesell v. Crane, 8 W. A S (Penn.) 

372, p. 358. 
Whiteside's V. Poole, 9 Blch. (S. 0.) 68, 

p. 199. 
Whitfield V. Whitfield, 40 Miss. 362, p. 

853. 
Whitsett V. Chicago, etc. B. B. Co , 67 

Iowa, 150, p. 239. 
Whittaker v. Parker, 42 Iowa, 686, p. 460. 
Wblttier V. Franklin, 46 N. H. 23, p. 12. 
Whittlesey v. Kellogg, 28 Mo. 404. p. 255. 
Wiggins V. Henson, 68 Ga. 819, p. 10. 
Wiggins V. V^aliace, 19 Barb. (N.Y.) 700. 

pp. 56, 281. 
WUber v. Eicboltz, 5 Cal. 240, p. 818. 
Wilcox V. Hall, 53 Ga. 635, p. 145. 
Wilcox V. Leake. 11 La. Ann. 178, p. 867. 
Wllcocks V. Phillips, 1 Wall. Jr. 49, p. 

215. 
Wilder V. Decou, 26 Minn. 10, p. 276. 
Wilkenson v. Mosely, 30 Ala. 562, pp. 11, 

118, 189. 
Wilkenson v. Pearson, 28 Pa. St. 117, p. 

158. 
Wliley V. Portsmouth, 36 N. H. 303, pp. 

64, 121. 
Williams V. Brown, 28 Ohio St. 547, pp. 

64. 67, 880, 381. 
Williams V. Conger, 126 U.S. 897, pp. 311, 

328. 
Williams' Case, 1 Lewin, 137, p. 840. 
Williams V. A«e, 47 Md. 321, pp. 156, 158. 
Williams V. Poppleton, 8 Oreg. 139, p. 

274. 
Williams v. Souther, 7 Iowa, 435, p. 18. 
Williams V. State, 64 Md. 884, pp. 65, 74, 

80, 127, 130. 
WUIiams V. State, 61 Ala. 83, p. 341. 
Williams V. State, 50 Ark. 511, p. 486. 



WUIiams V. Taunton, 125 Mass. 84, p. 

146. 
Williams v. Williams, 3 Beav. 547, p. 219. 
Williamson v. Yingling, 80 Ind. 379, p, 

258. 
Willings V. Consequa, 1 Pet. C. C. 225, p. 

206. 
Wilson V. Bauman, 80 111. 493, pp. 268,. 

271, 272. 
Wilson V. Beauohamp, 50 Miss. 2i, pp. 

821, 329. 
Wilson V. Betts, 4 Denio (K. Y.), 201, p. 

HIO. 
Wilson V. Carson, 12 Md. 54, pp. 214, 225. 
Wilson V. Irish, 62 Iowa. 26ii, p. 317. 
WiUon V. Smith, 13 Tenn. 899, p. 214. 
Wilson V. State, 41 Tex. 320, p. 188. 
Wilson V. State, 52 Ala. 299, p. 90. 
Wilson V. Town of Granby, 47 Conn. 59^ 

p. 115. 
Wilson V. Van Leer, 127 Pa. St. 872, p. 

894. 
Wilt V. Vickers, 8 Watts (Pa.), 227, p. 

180. 
Wlnans v. N.Y. & Brie B. B. Co., 21 How, 

88, p. m. 
Winch V. Norman, 65 Iowa, lb6, p. 317. 
Winn V. Paterson, 9 Pet. 668, p. 286. 
Winter v. Burt, 31 Ala. 88, p. 364. 
Winter v. City Council, 79 Ala. 481, pp. 

9,83. 
Wise V. Foote, 81 Ky. 10, pp. 158, 160. 
Wogan V. Small, 11 S. & B. (Penn.) UU 

p. 156. 
Wood V. Barker, 49 Mich. 295, pp. 489,. 

490. 
Wood V. Brewer, 67 Ala. 515, p. 884. 
Woodv. Chicago, etc. B. B. Co., 40 Wis. 

582, p. 6. 
Wood V. Sawyer, Phillips (N. C), 253, p. 

113. 
Wood v.- State, 58 Miss. 741, pp. 168, 160. 
Woods V. Allen, 18 N. H. 28, p. 258. 
Woodbridge v. Austin, 2 Tyler (Vt.),. 

864, p. 205. 
Woodbury v. Obear, 7 Gray, 467, pp. 64, 

75. 
Woodcock V. Houldsworth, 16 M. A W. 

124, p. 280. 
Woodcock V. Johnson, 36 Minn. 217, pp. 

158, 165. 
Wooden v. People, 1 Parker Cr.Cas. 464, 

p. 153. 
Woodman v. Dana, 52 Me. 9, pp. 89, 286,. 

820, 829, 382. 
Woodrow v. O'Conuer. 28 Vt. 776, p. 199. 
Woodrufi V. Imperial Fire Ins. Co., 83 

N. Y. 138, p. 368. 
Woodward v. Bugsbee, 4 N. Y. Sup. Ct. 

883, p. 886. 



TABLE OF CASES CITED. 



xlvii 



Woodward v. Bplller, 1 Dana, 180, p. 

338. 
Woodward t. The State, 4 Baxter 

(Tenn.), 822, p. 10. 
Woolner v. Spaulding, 65 Miss. 204, pp. 

66, 67. 
Worden v. Hameston, etc. R. R. Co., 76 

Iowa, 310, p. 392. 
Worth V. McConnell, 42 Mich. 475, pp. 

311, 320, 328. 
Wright V. City of Fort Howard, 60 Wis. 

119, p. 169. 
Wright V. Hardy, 28 Wis. 848, pp. 70, 149. 
Wright v. Heesey, 3 Baxter, 42, p. 329. 
Wright Y. P«' pie, 112 111. 640, p. 437. 
Wright y. Williams' Estate, 47 Vt. 222, 

pp. 44, 64, 66, 460. 
Wyman ▼. Goald, 47 Me. 169, p. 166. 
Wymao v. Lexington, etc. R. R.Co., 13 

Met. (Mass.) 216, p. 858. 
Wynne v. State, 56 Ga. 118, p. 282. 
Wynne t. Tyrwhitt, 4 B. ft Aid. 376, p. 



Y. 
Yahn v. City of Ottamwa, 60 Iowa, 429, 

p. 8. 
Yates V. Waugh, 1 Jones (N. O.) Law, 

483, p. 301. 
Yates V. Yates. 76 N. O. 142, pp. 68, 289, 

298,823. 
Yeatman v. Hart, 6 Humph. (Tenn.) 

374, p. 116. 
Yoe V. The People, 49 111. 410, pp. 417, 

419. 
York V. The People. 31 Hun (S. Y.),446^ 

448, p. 7. 
Young Y. Johnson, 46 Hun (N. Y.).164, 

p. 165. 
Young y. Makepence, 103 Mass. 50, p. 

187. 
Young y. O'Neal, 57 Ala. 666, p. 264. 
Yost V. Conroy, 92 Ind. 464. pp. 367, 369. 

Z. 
Zimmerman y. Hesler, 32 Md. 274, p. 206. 
Zube y. Weber, 67 Mich. 62, p. 6. 
Zugasti y. Lamer, 12 Moore P.C. 881, pp. 

197, 23J, 281. 



CHAPTER I. 



THE ADMISSIBIUTT IN EVIDENCE OF THE OPINIOUBT C^' 
ORDINARY AND EXPERT WITNESSES. 

BKCnON. 

1. The Term Expert Defined. 

2. The Practice of Admitting Expert Testimony an Ancient One. 

3. The Competency of Non -Professional Witnesses to Giye Opinion 

Evidence. 

4. The Admissibility in Evidence of the Opinions of Non-Professional 

Witnesses in Cases of Necessity. 
&• The Inadmissibility of Opinion Evidence. 

6. When Expert Testimony is Admissible. 

7. Meaning of the Terms Science and Art. 

8. When the Opinions of Experts are Inadmissible. 

9. The Question of the Admissibility of Expert Testimony fe for the 

Court. 

10. Cases Illustrative of the Inadmissibility of the Opinions of Experts. 

11. The Inadmissibility of Opinions Founded on a Theory of Morals 

or Duty. 

12. The Inadmissibility of Opinions on Abstract Questions of Science, 

not Related to the Facts in Issue. 

13. Inadmissibility of Opinions Based on Speculative Data. 

14. Admissibility of the Testimony of Experte Who Have Made Ex 

Parte Investigations. 

§ 1. The Term "Expert" Defined. — ^The phrase 
** expert testimony'' is not applicable to all species 
of opinion evidence. A witness is not giving ''ex- 
pert testimony'' who, without any special personal 
fitness, or special intelligence, simply testifies as to- 
the impressions produced on his mind or senses by^ 

(1) 



Z EXPERT TESTIMONY. 

that which he has seen or he'ayd and which can 
only be described to others Ijy giving the impression 
produced upon the witness^ " Neither is a person 
giving ''expert testinidiiy,,'-'' strictly speaking, when 
he is testifying a£ i&^iAatters which require* no pe- 
culiar intelligence' and concerning which any per- 
son is (]^ualified to judge according to his opportuni- 
ties of -/jfeservation. * 'Expert testimony" properly 
bp^ibe-with testimony concerning those "branches 
•qf business or occupations where some intelligence 
is requisite for judgment" and when ''opportunities 
and habits of observation must be combined with 
some practical experience." * And in the case cited 
it is said that "the scale rises as the qualifications 
become nicer, and require greater capacity or 
knowledge and experience, until it reaches scientific 
observers, and practitioners in arts and sciences 
requiring practice and thorough special training." 
An expert is one who is skilled in any particular 
art, trade, or profession, being possessed of peculiar 
knowledge concerning the same. Strictly speaking, 
An "expert" in any science, art, or trade, is one 
who, by practice or observation has become experi- 
enced therein. An expert has been defined as "a 
person of skill;" ' as "a skillful or experienced per- 
son; a person having skill, experience, or peculiar 
knowledge on certain subjects, or in certain profes- 
sions; a scientific witness."' "An expert" said 
Mr. Justice Folger, "is one instructed by experi- 
ence, and to become one, requires a course of pre- 
vious habit and practice, or of study, so as to be 

» See Kelly v. Richardson, 69 Mich. 430. 
» Rochester v. Chester, 3 N. II. 349, 365. 
» Heald v. Thing, 46 Me. 392, 394. 



"expert'* defined. 3 

familiar with the subject/' ' **A11 persons, I think/' 
said Mr. Justice Maule, **who practice a business 
or profession which requires them to possess a cer- 
tain knowledge of the matter in hand, are experts 
so far as expertness is required."* And this lan- 
guage has been adopted by the court in Virginia.' 
In New Hampshire, we find Mr. Justice Doe de- 
claring: **An expert must have made the subject 
upon which he gives his opinion a matter of par- 
ticular study, practice or observation, and he must 
have particular special knowledge on the subject." * 
While Mr. Chief Justice Ames, of Rhode Island, 
says: ''Knowledge of any kind, gained for and in 
the course of one's business as pertaining thereto, 
is precisely that which entitles one to be considered 
an expert, so as to render his opinion, founded on 
such knowledge, admissible in evidence."* ''An 
expert," says the court in Vermont, through Mr. 
Justice Royce, "is defined to be a person that pos- 
sesses peculiar skill and knowledge upon the sub- 
ject-matter that he is required to give an opinion 
upon."' As defined by Mr. Chief Justice Shaw in 
Massachusetts, an "expert is a person of large expe- 
rience in any particular department of art, business 
or science."^ As stated by Mr. Justice Redfield 
in his edition of Greenleaf s Evidence, "The term 
'expert' seems to imply both superior knowledge 
and practical experience in the art or profession; 



1 Nelson v. Sun Mutual Ins. Co., 71 N. Y. 453, 400. 

> Vander Donckt v. Thellusson, 8 Man. G. & S. (65 Eng. C. L.) 812. 

s Bird V. Commonwealth, 21 Gratt. 800. 

* Jones V. Tucker, 41 N. H. 646. 

s Buffum V. Harris, 5 R. I. 250. 

« State V. Phair, 48 Vt. 636, 377. 

' Dickenson v. Fitchburg, 13 Gray, 546, 565. 



4 EXPERT TESTIMONY. 

but generally, nothing more is required to entitle 
one to give testimony as an expert, than that he 
has been educated in the particular art or profes- 
sion." * For persons are presumed to understand 
questions pertaining to their own profession or 
business.* As the opinions of experts may rest 
either on their personal knowledge, or on facts tes- 
tified of by other witnesses,' it is error to assume, as 
is done in one case,* that an expert is one who sim- 
ply testifies from premises furnished by the testimony 
of other witnesses. One court says that no in- 
dividual can be considered an expert who does 
not thoroughly understand the sciences involved.' 

§ 2. The Practice of Admittinfir Expert Testimony 
an Ancient One. — The practice of admitting the 
evidence of witnesses, who have become qualified 
by study and experience to express opinions upon 
questions of science and art, is by no means peculiar 
to modern times. By the Roman law, persons who 
were artis periti could be summoned by the judex at 
his discretion, in order to inform himself as to phys- 
ical laws or phenomena,* And the celebrated 
criminal code framed by the Emperor Charles the 
Fifth, at Ratisbon in 1532, contained a formal 
enactment requiring the opinion of medical experts 
to be taken in all cases where death was supposed 



1 1 Greenl. £vid., § 440. 

> Jones V. White, 11 Humph. 268. And see State v. Clark, 16 S. C. 
(N. s.) 403, 408. 

* Snow V. Boston, etc. R. R. Co., 65 Me. 230, 232; Lessee of Forbes v. 
Caruthers, 3 Yeates, 527; Polk v. State, 36 Ark. 117, 124, 125. 

< Travis v. Brown, 43 Pa. St. 9, 13, 14. 
B Allen Y. Hunter, 6 McLean, 303, 310. 

< L. 8. § 1, X. 1 ; L. 3, § 4, zi. 6; L. 3, Cod. flu. reg., ill. 39. Endeman, 
243. 



ANCIENT PRACTICE. 

to have been occasioned by violent means.' In 
1606, Henry the Fourth, of France, in giving letters 
patent to his first physician, conferred on him the 
power of appointing two surgeons in every city or 
important towp, whose duty it should exclusively 
be to examine all wounded or murdered men, and 
report thereon.' While in England one of the early 
records shows,' that on an appeal of mayhem, the 
defendant prayed the court to see the wound for the 
purpose of determining whether there had been a 
maiming or not, but the court did not know how to 
decide, as the wound was new; and thereupon the 
defendant took issue, and prayed the court that the 
mayhem might be examined. A writ was accord- 
ingly sent to the sheriff to cause to come, medicos 
chirurgicos de melioribtis, London, ad informandum 
dominum regem et curiam de his, qua lis ex parte 
domini regis injungerentur. ^ And, in 1553, Mr. 
Justice Saunders is reported as saying: *'If matters 
arise in our law which concern other sciences or 
faculties, we commonly apply for the aid of that 
science or faculty which it concerns, which is an 
honourable and commendable thing in our law, for 
thereby it appears that we don't despise all other 
sciences but our own, but we approve of them, and 
encourage them as things worthy of commenda- 
tion." * Instances are recorded in the Year Books, 
where the courts received the opinions of witnesses 
learned in the sciences and arts.* 



> See 2 Beck's Med. Juris. 896. 
^Fodere, IntroduotioD, Vol. 1, p. 32. 
s 28 Ass. pi. 5. 

4 Buckley v. Bice, 1 Plowden, 125. 
•9H.716; 7n. 6,11. 



6 



EXPERT TESTIMONY. 



$3. The Competency of Non-Professional Witnesses 
to Give Opinion Evidence.— The rule admitting the 
testimony of experts is exceptional/ for no principle 
of the law is better settled than that the opinions of 
witnesses are, in general, inadmissible in evidence/ 
They must state facts and not opinions deduced 
from the facts; for it is the peculiar province of the 
jury to determine upon the inferences which are to 
be drawn from the facts. But to this general rule 
there are well recognized exceptions. Experience 
has demonstrated the diffculty which exists in cer- 
tain cases, of stating the facts in detail to the jury 
in such a manner, that they shall produce the same 
impression upon the minds of the jurymen that they 
have legitimately produced upon the minds of the 

1 Ellingwood v. Bragg, 52 N. H. 488; Polk v. State, 36 Ark. 117, 125. 

< Continental Ins. Co. v. Delpench, 82 Pa. St. 225; Frost v. Blanch- 
ard, 97 Mass. 156; Hames v. Brownlee, 63 Ala. 277; Fitzgerald y. Hay- 
ward, 50 Mo. 516; Holden. v. Bobinson Co., 65 Me. 216; Thomas v. 
State, 40 Tex. 36; Lawrence y. Hudson, 59 Tenn. 671; Benedict y. City 
of Fon du Lac, 44 Wis. 495; Cummins y. State, 58 Ala. 387; Lewis y. 
Brown, 41 Me. 448; Scaggs y. Baltimore, etc. B. B. Co., 10 Md. 268; 
Higgins y. Carlton, 28 Md. 115; Hayes y. Wells, 34 Md. 513; Babcock y. 
Middlesex Sayings Bank, 28 Conn. 306; McKnlght y. State, 6 Tex. Ct. 
of App. 162; Seibles y. Blaokwell, 1 McM. (S. C.) 57; Dawson y. Cal- 
laway, 18 Qa. 573; Hawkins y. State, 25 Ga. 207; Central Bailroad, etc. 
y. Kelly, 58 Ga. 107; Bochester y. Chester, 3 N. H. 364; Patterson y. 
Colebrook, 9 Foster (N. H.), 94; Daniels y. Mosber, 2 Mich. 183; GrifRn 
y. Town of Willow, 43 Wis. 509; Wood y. Chicago, etc. B. B. Co., 40 
Wis. 582; Montgomery y. Town of Scott, 34 Wis. 338; HoUiman y Ca- 
banne, 43 Mo. 568; Bailey y. Pool, 13 Ired. (N. C.) 406; New Albany, 
etc. B. B. Co. y. Huff, 19 lad. 315; Bobinson y. Fitchburg, etc. B. B. 
Co., 7 Gray (Mass.), 92; Forbes y. Caruthers, 3 Yeates, 527; Merritt y. 
Seaman, 6 N. Y. 168; Berckman y. Berckman, 16 N. J. Eq. 122; Corlis 
y. Little, 13 N. J. Law, 232; Massachusetts Life Ins. Co. y. Eshelman, 
30 Ohio St. 647; Turner y. Cook, 36 Ind. 129; Shepard y. Pratt, 16 Kan. 
209; Koons v. St. Louis & Iron Mountain B. B. Co., 65 Mo. 592; Mas- 
check y. St. Louis B. B. Co., 1 Mo. App. 600; Gassenheimer y. State, 
52 Ala. 314; McAdory y. State, 59 Ala. 92; Houston, etc.B. B. Co. y. 
Smith, 52 Tex. 178; Jasper Co. y. Osborne, 59Iowa,'208; Zubey. Weber, 
67 Mich. 52. 



OPINIONS OF NON-PROFESSIONAL WITNESSES. / 

witnesses. So that from the very necessities of the 
case, it is sometimes found essential that the opin- 
ions of ordinary witnesses should be received, as 
otherwise it would be impossible to arrive at any 
accurate conclusion as to the facts involved. 

The dividing line between what is a fact and what 
is an opinion cannot be very clearly defined, and 
while the general rule only allows an ordinary wit- 
ness to testify to facts and not to express opinions, 
yet it is not to be overlooked that that which is nec- 
essarily but an opinion may be a fact concerning 
which an ordinary witness can testify. Thus it has 
been held that the question whether a team can be 
turned in a road, or a certain thing pass through a 
door or other opening, while necessarily but an opin- 
ion, is also a fact as to which an ordinary witness 
can testify.' So a witness is allowed to testify as a 
fact to the financial standing of another," while the 
opinion of the witness as to such person's financial 
standing has been held inadmissible.' 

When it is sought to introduce in evidence the 
opinions of non-professional witnesses, it becomes 
necessary for the court to determine certain prelim- 
inary questions before such testimony can be given. 

1. The court must decide whether the subject- 
matter to which the testimony relates is of such a 
nature as to warrant the introduction of opinion 
evidence from non-professional witnesses. In de- 
ciding that question the court will be governed by 
the following principles : 

(a.) It is competent for a witness to state his 



^ Funston v. Chicago, etc. R. R. Co., 61 Iowa, 452 (1883). 

> Thompson v. Hall, 46 Barb. (N. Y.; 216. 

8 York V. The People, 31 Hun (N. Y.) 446, 448. 



"8 EXPERT TESTIMONY. 

opinion in evidence when the primary facts on which 
it is founded are of such a nature that they cannot 
be adequately reproduced or described to the jury, so 
as to enable another than the actual observer to 
form an intelligent conclusion from them.* 

(5,) And when the facts upon which the witness 
is to express his opinion are of such a nature that men 
in general are capable of comprehending and under- 
standing them.* If they are not of that nature the 
opinions of ordinary witnesses could not be received, 
but the opinions would have to come from men of 
science or skill. 

2. It having been determined by the court that 
the subject-matter to which the testimony relates 
warrants the admission of opinion evidence from 
ordinary witnesses, the court must then determine 
whether the witness in question is competent to ex- 
press an opinion. The qualifications of the witness 
to express an opinion should be made to appear to 
the satisfaction of the court. The witness must first 
state the facts and his means of observation, and 
the court may then decide whether the facts testified 
to and his means of observation are such as to justify 
the expression of an opinion.' 

A witness, who is not an expert, is not allowed to 
express an opinion unless he has a personal knowl- 
edge of the facts on which the opinion is based. He 
cannot express an opinion on facts testified to by 

1 Tahn v. City of Ottumwa, 60 Iowa, 429; The Atchison, etc. R. R. 
Co. V. Miller, 39 Kan. 419, 421 ; State v. Baldwin, 36 Kan. 2; Railroad 
Co. V. Schultz, 43 Ohio St. 270, 282; City of Parsons v. Lindsay, 26 
Kan. 426; Cavendish v. Troy, 41 Vermont, 108; State y. Folwell, 14 
Kan. 105; Bates y. Sharon, 45 Vermont, 474. 

' See Commonwealth y. Sturtivant, 117 Mass. 122, 137. 

•First National Bank v. Wirebach, 106 Pa. St. 37, 44; People v. 
Levy, 71 Cal. 618. 



OPINIONS OF NON-PROFESSIONAL WITNESSES. 9 

Other witnesses, nor in answer to a hypothetical 
case/ As his opinion is based on facts within his 
personal knowledge, he is, as a rule, required to 
state the facts as fully as he may be able, and hav- 
ing done so, he is then allowed to state his 
opinion based on the facts so testified to.' But in 
some cases it is impossible in the nature of things 
to describe the facts, and the opinion of the witness 
will not be excluded in such case because of his 
inability to give a description of the facts. For in- 
stance, in questions relating to identity of persons, 
the identification may be by the mere expression 
of the countenance, which cannot be described. 
And the witness may be correct although unable to 
describe a single feature, or to give the color of the 
hair, or of the eyes, or the particulars of the dress.' 

^ 4. The Admissibility in ^Tidence of the Opin- 
ions of Non-Professional Witnesses in Cases of Neces- 
«ity. — We have stated in the preceding section that 
ordinary witnesses are allowed to express opinions 
based on facts within their personal observation 
when the facts cannot be so described as to enable 
another to draw any intelligent conclusion therefrom. 
Opinions in such cases must be received in evidence 
from the necessities of the situation. The cases are 



1 Winter y. City Council, 79 Ala. 481; Bell v. McMaster, 29 Han (K. 
T.) 272; Pittard v. Foster, 12 ni. App. 132; Appleby v. Brock, 76 Mo. 
314; Eyerman v. Sheehan, 52 Mo. 221 ; Sydleman v. Beckwith, 43 Conn. 
9. 

* Carthage Turnpike Co. v. Andrews, 102 Ind. 138; Jones v. Fuller, 
19 S. C. (N. s.) 66; Bailroad Co. v. Schnltz, 43 Ohio St. 270, 282; 
Bhaver y. McCarthy, 110 Pa. St. 339; Goodwin y. State, 96 Ind. 600; 
American Bible Society y. Price, 115 ni. 623; Pinney's Will, 27 Minn. 
aSO; state y. Erb, 74 Mo. 199. 

See Sydleman y. Beckwith, 43 Conn. 9, 13. 



10 EXPERT TESTIMONY. 

not a few in which the opinions of ordinary wit- 
nesses are admissible. 

1. An ordinary witness may express an opinion 
concerning the age of a person whom he has seen.' 

2. And the identity of a person or thing which he 
has observed.' 

3. Concerning the appearance of a person. As 
to whether he appeared to be sober or intoxicated 
when the witness saw him,' and this without show- 
ing that the witness had any previous knowledge of 
the habits and conduct of such person.* As to 
whether a person appeared angry or not;* or sad;* or 
nervous, and showed fear or manifested grief;^ or 

1 Commonwealth v. O'Brien, 134 Mass. 198; FoiCz v. The State, 33 
Ind. 215; Morse v. The State, 6 Conn. 9; DeWltt v. Bailey, 17 N. Y. 
344; Benson y. McFaddon, 50 Ind. 431; Kansas Faciftc R. R. Co. v. 
Miller, 2 Colo. 442; Marshall v. State, 49 Ala. 21. 

•Walkery. The state, 58 Ala. 393; Wiggins v. Henson, 68 Ga. 819; 
State v. Babb, 76 Mo. 501 ; King v. N. Y. Cent. R. R. Co., 72 N. Y. 607; 
Woodward v. The State, 4 Baxter (Tenn.), 322; Turner v. McFee, 61 
Ala. 468; Beverly v. Williams, 4 Dev. & Bat. (N. C.) 236; Common- 
wealth V. Sturtivant, 117 Mass. 133; and in Commonwealth v. Williams^ 
105 Mass. 62, where there was identification of a burglar by his voice. 
In Beale v. Posey, 72 Ala. 323, that witness knew and recognized the 
walk of another. And so witnesses can express an opinion that certain 
foot-prints correspond with certain boots. Commonwealth v. Pope, 103 
Mass. 440; State v. Morris, 84 N. C. 756. And that certain tracks were 
made by a certain person. State v. Reitz, 83 N. C. 634. In the case 
just cited, the court remarks: *^The bare opinion of a witness as to the 
identity of the tracks should have no weight with a jury ; but when the 
witness gives his reasons for entertaining the opinion, the whole of the 
testimony should be allowed to go to the jury, for them to say whether 
the grounds of the opinion are reasonable and satisfactory.^' So, too, 
a witness has been allowed to testify that certain tracks were made by 
a certain wagon. State v. Folwell, 14 Kan. 105. 

8 People v. Monteith, 73 Cal. 7; State v. Huxford,47Iowa,16; People 
V.Eastwood, 14 N. Y. 562; Stacy v. Portland Publishing Co., 68 Me. 
279; City of Aurora v. Hillman, 90 111. 66. 

* Castner v. Sliker, 33 N. J. L. 95; s. c, Ibid, 507. 

« Jenkins v. The State, 82 Ala. 25; State v. Shelton, 64 Iowa, 333. 

• Culver V. D wight, 6 Gray (Mass.), 444; Tobin v. Shaw, 45 Me. 331. 
^ State V. Baldwin, 36 Kan. 1. And see Brownell v. People, 3S Mich. 

732. 



OPINIONS OF NON-PROFESSIONAL WITNESSES. 11 

seemed excited-/ or appeared to be suflFering pain;* 
or appeared attached to another.' 

4. Concerning the health, the physical and 
mental condition of another.* For instance, that a 
person was sick;* or in poor health;* or was formerly 
in'good health;' or grew worse in health;' or was 
rational or irrational;' sane or insane;*' or whether 
a person's mind was clear;" or had failed mentally 
in a given time;" whether a person appeared to be 
well or iU;" or ^ looked bad.'' " 

5. Concerning a person's habits. For instance, 
that a person was of intemperate habits." 

6. Concerning his actions. For example, that a 
person acted strangely and in a childish manner,'* 
or was ''short" in answering questions." 

7. Concerning his character. For example, that 
he was eccentric,*' or of fickle mind.*' 

1 state V. Houston, 78 Ala. 676. 

> South, etc. R. R. Co. v. McLendon, 63' Ala. 266. 

3 Trelawney v. Coleman, 2 Starkle, 168; McKee v. Nelson, 4 Cowen 
(N. T.),355; Pelamourges v. Clark, 9 Iowa, 1, 17. And see Evans v. 
The People, 12 Mich. 27, 35; Blake v. The People, 73 K. Y. 586. 

• Tierney v. Minnesota, etc. B. R. Co., 33 Minn. 311 ; Albert v. The 
State, 66 Md. 325; Bridge v. City of Oshkosh, 71 Wis. 363. 

» Chicago, etc. R. R. Co. v. George, 19 111. 510, 515. 

• Carthage Turnpike Co. v. Andrews, 102 Ind. 138. 
^ Smalley v. Appleton, 70 Wis. 340. 

« Louisville, etc. R. R. Co. v. Wood, 113 Ind. 644. 

• People v. Lavelle, 71 Cal. 351. 

WHaney v. Clark, 65 Texas, 93; Upstone v. The People, 109 Dl. 169 ; 
Conn. Mut.Life Ins. Co. v.Lathrop, 111 U. 8. 612; McRae v. Malloy, 93 
N. C. 154. 

" People V. Sanford, 43 Cal. 32. 

^ Commonwealth v. Brayman, 136 Mass. 438. 

» Canady v. Lynch, 27 Minn. 435; Wilkenson v. Moseby, 30 Ala. 562. 

" South, etc. R. R. Co. v. McLendon, 63 Ala. 275. 

» Gallagher v. The People, 120 ni. 179, 182; Smith v. State, 55 Ala. 1. 

w Parsons v. Parsons, 66 Iowa, 764; Irish v. Smith, 8 S. & R. 573. 

1' Carroll v. State, 23 Ala. 28. 

^ Eraser v. Jennison, 42 Mich. 206, 215. 

» Mills V. Winter, 94 Ind. 329. 



12 EXPERT TESTIMONY. 

8. Concerning his reputation. Whether it was 
good or bad.^ 

So the opinions of ordinary witnesses are received. 

1 . In matters of size, color, weight and quantity.' 

2. In estimations of time and distance.' . 

3. In regard to the character of sounds, and the 
direction from which they seem to come.* 

4. Whether a thing was done in a jocular or in 
an insulting manner.*^ 

5. How a certain thing which the witness ob- 
served appeared.* 

6. On questions of value." 

7. As to impressions of cold or heat, light and 
darkness.' 

8. As to the disposition of animals.' 

9. And in some cases as to the capacity and suffi- 
ciency of an object for the purpose intended. Thus, 
ordinary persons having sufficient opportunity for per- 
sonal observation, and giving in their testimony the 
facts of their observation, have been allowed to ex- 
press their opinions as to the capacity and sufficiency 

1 Childs V. State, 55 Ala. 28; Snow v. Grace, 29 Ark. 138. 
> Commonwealth v. Sturtivant, 117 Mass. 133 ; Bass Furnace Co. y. 
Glasscock, 82 Ala. 452. 
' See Commonwealth v. Sturtivant, 117 Mass. 133. 

• State y. Shinborn, 46 N. H. 501. In Atchison, etc. B. B. Co. v. 
Miller, 39 Kan. 419, a person was permitted to testify that he was in a 
position to have heard a whistle, if it had been sounded. In Dyer v. 
Dyer, 87 Ind. 13, it was held a witness could not express his opinion as 
to whether a person heard certain words. 

• Powers y. The State, 23 Texas App. 42. And see Bay v. Stato, 60 
Ala. 104; Baisler v. Springer, 38 Ala. 703. 

• The State v. Parker, 96 Mo. 382, 393. In Commonwealth y. Sturti- 
vant, 117 Mass. 122, where a witness was permitted to express an opin- 
ion that certain shoes which he had seen appeared as if they had re- 
cently been washed. 

7 Spear v. Drainage Commissioners, 113 Ul. 632, 635. See chapter VIII. 
^ Kelley v. Bichardson, 69 Mich. 430, 436. 

• Matteson v. State, 55 Ala. 224; Whittier v. Franklin, 46 ]!^. H. 23. 



WHEN OPINIONS ARE INADMISSIBLE. 13 

of a culvert to carry away accumulated water in time 
of freshets.* And where the question was as to the 
strength and sufficiency of a dam to sustain the 
quantity of water which would be accumulated by 
it, the opinions of practical and observing men, who 
possessed no peculiar skill on the subject, but 
stated the facts of their observation, have been re- 
ceived in evidence.* (But see pages 14, 15.) 

^ 5. The Inadmissibility of Opinion Evidence. — 
We have seen that opinions may be received when 
the facts cannot be made palpable to the jurors so 
that their means of forming opinions are practically 
equal to those of the witnesses. It is equally true 
that opinions cannot be received in cases where the 
jury are equally capable with the witness of forming 
an opinion from the facts stated.' 

1. The opinions of witnesses, whether experts or 
not, will not, according to some of the authorities, 
be received on the question whether a certain place 
is safe or dangerous.* 

For instance, it has been held that the opinions 
of witnesses could not be received as to whether a 

1 McPherson t. St. Loais, etc. B. R. Co., 97 Mo. 253, 256. 

' Porter v. The Pequonaoc Mnfg. Co., 17 Conn. 249. In this case it is 
stated : **They (the witnesses) had acquired, by their personal obser- 
yation, a knowledge of the character of the stream, and also of the dam^ 
and were therefore peculiarly qualified to determine whether the latter 
was sofiSciently strong to withstand the former. The opinions of such 
persons, on a question of this description, although possessing no pecu- 
liar slcill on the subject, would ordinarily be more satisfactory to the 
minds of the triers than those of scientific men who were personally 
unacquainted with the facts in the case.'^ And see Harford County y. 
Wise (Md.) , 18 Atl. Hep. 31. 

> Railroad Co. y. Schultz, 43 Ohio St. 270; Kent y. Miltenberger, 15 
Mo. App. 480; Parlchurst y. Masteller, 57 Iowa, 476. 

* See Couch y. Charlotte, etc. R. R. Co., 22 S. C. 557, 561; Tolson y. 
Inland Coasting Co., 17 D. C. 39; Way y. Rlinois Central R. R. Co., 40 
Iowa, 341; King y. Missouri, etc. R. Co. (Mo.), 11 S. W. Rep. 563; 
Topeka y. Sherwood, 39 Kan. 690. 



14 EXPERT TESTIMONY. 

stock car was a dangerous place for a person to ride, * 
and that a city surveyor, civil engineer and super- 
intendent of streets could not express an opinion 
whether a street gutter was in a safe or unsafe con- 
dition;' and that a witness could not state whether 
in his opinion a bridge ^^ was reasonably safe;''' nor 
whether a highway was safe;* and yet the rule is not 
one that has been applied in all cases. The elements 
entering into the question of reasonable safety are 
sometimes numerous and often difficult of descrip- 
tion,' and there are cases in which opinions have 
been received on the subject.* 

2. The question whether a certain thing is nec- 
essary or not, is, ordinarily, a question for the jury 
to determine. It has therefore been held incompe- 
tent to introduce expert testimony to show the opin- 
ion of the witness that a cattle-guard or barrier was 
necessary at a particular point on defendant's line 
of railroad,^ and it has been held that opinions will 
not be received on the question whether a certain 

1 Lawson v. Chicago, etc. R. R. Co., 64 Wis. 447. 
« Baker v. City of Madison, 62 Wis. 143. 

< Weeks v. Town of Lyndon, 54 Vt. 638; Bliss y. Wilbraham, 8 Allen 
(Mass.) 564; Crane v. Northfield, 33 Vt. 126. 

* Kelley v. Fon Da Lac, 31 Wis. 179 ; Stillwater Turnpike Co. v. Coov- 
er, 26 Ohio St. 520; Brown y. Cape Girardean, etc. Plank Road Co., 
89 Mo. 152; City of Topeka v. Sherwood, 39 Kan. 690. 

« See Schwander v. Birge, 46 Hun (N. Y.) 66, 69. 

< Taylor v. Town of Monroe, 43 Conn. 36; Albert v. The State, 66 Md. 
325. In Laughlin v. Street Railway Co., 62 Mich. 226, the court say: 
^< It is always competent for those who are familliar with the highways 
and their use to give their impressions received at the time concerning 
safety or convenience of passage, and other conditions of an analogous 
nature. They are not strictly scientific questions, and come within 
familiar principles." But in the foregoing case, Mobse, J., delivered a 
strong dissenting opinion. In Cross v. Lake Shore, etc. Railway Co., 
69 Mich. 363, a civil engineer was allowed to testify that a hole near a 
traveled way *' was a dangerous place, and needed protection." And 
seo M«»rkle v. Bennington, 68 Mich. 133, 143; also section 10. 

^ Amstein v. Gardner, 134 Mas^. 10. 



WHEN OPINIONS ARE INADMISSIBLE. 15 

fence was sufficient to turn stock/ nor whether cer- 
tain cattle-guards were sufficient and proper.* 

3. The question of what is the proximate cause 
of an injury is ordinarily not one of science or of 
legal knowledge, but of fact for the jury to deter- 
mine in view of the circumstances of fact attending 
it.' But while opinions as to proximate cause are 
ordinarily inadmissible, experts are allowed on ques- 
tions of science to testify as to the possible causes 
of a given effect,* and the opinions of ordinary wit- 
nesses are sometimes likewise received as to the 
cause of a given effect. Thus, where the question 
was whether a dam was the cause of an overflow, 
and it was claimed that the question should be set- 
tled by actual survey, measurement and science, the 
court declared that the opinions and observations of 
the witnesses who were well acquainted with the 
premises were as certain and direct.* 

4. Whether this or that act amounts to negli- 
gence is ordinarily a matter of judgment and com- 
mon experience rather than of science or skill, and 
the opinions of experts are inadmissible in evidence 
concerning the same.* An expert may be asked 
whether certain things were properly or skillfully 
done, but not whether a person was guilty of want 
of ordinary care or of negligence in the doing ol 
such things.' The witness cannot be asked whether 

I Railroad Co. v. Schultz, 43 Ohio St. 270; Sowers v. Bakes, 8 Minn. 
23; Enright v. The Railroad Co., 33 Cal. 230. 
s St. Louis, etc. R. R. Co. v. Ritz, 33 Kan. 404. See page 12 * 
s Milwakee, etc. R. R. Co. v. Kellogg, 94 U. S. 469, 474. 

* Moyer v. New York Central R. R. Co., 98 N. Y. 646. 

* McLeod V. Lee, 17 Nevada, 103. 

* Mantel v. Chicago, etc. R. R. Co., 33 Minn. 62, 65; The East Tennes- 
see, etc. R. R. Co. V. Wright, 76 Ga. 632, 536; Ballard v. New York 
etc. R. R. Co., 126 Pa. St. 141 ; Bills v. Ottumwa, 35 Iowa 107. 

7 Seliger v. Bastian, 66 Wis. 521, 522. 



16 EXPERT TESTIMONY. 

a person exercised due care;* nor whether a person 
was a careful driver;' nor *4s that the ordinary, 
careful, prudent, and safe manner (of performing the 
service); '" nor ''what would be the chances for a 
stage coach to tip over, being driven by an ordi- 
narily careful, prudent driver;''* nor whether the 
practice of a certain railroad in blowing its whistle 
was * 'reasonable or unreasonable," ^ ^prudent'' or 
"extraordinary," or "an unreasonable manner of 
proceeding on the part of the engineer;"* nor 
whether leaving a horse unhitched in a mill yard 
"was the act of a careful and prudent man; " * nor 
whether placing wet staves on the outside of an arch 
with fire in it "was a safe and prudent way to dry 
them; " ^ nor whether the plaintiff could have been 
injured in oiling a certain part of the machinery of 
a steam engine if he had not been careless;* nor 
whether the means of egress from a building were 
all that due care required the defendant to provide;' 
nor whether certain goods "were as well handled 
and cared for as goods usually are when attached. "*• 
And so it has been held that while a physician 
might state what, in his opinion, was the cause of a 
certain hemorrhage, yet it was not competent for 
him to say whether it was to be attributed to the 



1 Hopkins y. Indianapolis, etc. R. R. Co., 78 Dl. 32. 
s Morris y. East Haven, 41 Coon. 252. 
> Seliger v. Bastian, 66 Wis. 621. 
< Oleson ▼. Tolford, 37 Wis. 327. 
s Hill V. Portland, etc. R. R. Co., 55 Me. 439. 

•Stowe V. Bishop, 58 Vt. 498 (1886). And see Monroe v. Lattin, 2.> 
Kan. 351. 
7 White v. Ballon, 8 Allen (Mass.), 408. 

* Buxton v. Somerset Potters^ Works, 121 Mass. 446. 

• Schwander v. Birge, 46 Hun (N. Y.), 66. 
i*) Dow V. Julien, 32 Kan. 576. 



WHEN OPINIONS ARE INADMISSIBLE. 17 

party's negligence.* It has been held, too, that the 
opinion of a witness was inadmissible that it was not 
prudent to use a certain hoisting apparatus with less 
than three men, on a stone of two tons' heft.' In 
the case last cited the court says: **When this ma- 
chine was fully described as to its structure, strength, 
methods of use, number of men required, danger in 
its use by less number, its safety and adequacy 
when properly used, the inference as to the pru- 
dence of undertaking to operate it on a stone of the 
size in question with only two men, was one which 
required no particular knowledge and skill, but 
rested in the sound judgment of the jurors, and one 
w^hich they could as well decide for themselves." 

In a case where it was claimed that a railroad 
company had been guilty of negligence in not re- 
moving certain brasses from the boxes of car wheels, 
it was held improper to ask an expert '^when ought 
they to be removed?' ' The court says: ' 'We think, 
however, that the proposed fact is not competent to 
be established by the opinion of a witness offered as 
an expert. The effects of allowing the brasses to 
become worn and thin and broken should be shown. 
Then the jury would be competent to determine 
whether it was negligence to fail to remove them 
before such condition existed. To allow a witness 
to testify as an expert to such fact would be to sub- 
stitute the witness for the jury.'" 



1 Brant v. City of Lyons, 60 Iowa, 172, 174. 

» Bemis v. Central Vermont R. R. Co., 58 Vt. 636. 

» Kitterlngham y. The Sioux City, etc. R. R. Co., 62 Iowa, 286. The 
qneBtion had been asked in order to show that the brasses should be 
removed before they are worn as thin as a knife, before they become 
broken, or before the old axle-grease burns into the broken brass, there- 

(2) 



18 EXPERT TESTIMONY. 

5. Intention or motive is an inferential fact to 
which a witness is ordinarily not allowed to testify 
in terms/ 

6. A witness cannot testify whether, in his opin- 
ion, a certain thing is fair or not;' or give his opin- 
ion on matters of moral obligation.* 

7. The opinion of a witness on a question of law 
or legal obligation is inadmissible/ except on the 
subject of foreign law in which case the opinions of 
persons skilled in the same may be received.* 

8. As a rule, opinions are inadmissible on the 
measure of damages.* But this subject is fully con- 
sidered in a subsequent chapter.^ 

9. Ordinarily the opinions of witnesses are inad- 
missible as to the meaning of English words,' but in 
action for slander or libel the principle is establised 
that after evidence has been given to show that the 
words used may have conveyed a special meaning 
on the particular occasion the opinion of the witness 



by causing a poisonous substance to accumulate on them—all of which 
counsel claimed constituted the elements of negligence. 

1 Sharp V. Hall, 86 Ala. 110; Taylor y. Penqulte, 35 Mo. App. 389, 402. 

> Beid T. Ladue, 66 Mich. 22, 26. And see section 11 of this chapter; 
Adams v. Thornton, 82 Ala. 260; Manufacturers, etc. v. Koch, 105 N.T. 
630; Tait v. Hall, 71 Gal. 149. 

s See 1 Greenl. Evid. § 441. 

* Williams v. Souther, 7 Iowa, 435; Jackson v. Benson, 54 Iowa, 654; 
Short Mountain Coal Co. v. Hardy, 114 Mass. 197; Fairchild v.Bascom, 
35 Vermont, 398; Bodgers v. Kline, 56 Miss. 808; Lindauer v. Delaware 
Mut. Ins. Co., 13 Ark. 462; Phelps v. Town, 14 Mich. 374; White v. 
Bailey, 10 Mich. 155; Stiles v. Steele, 37 Kan. 562; Shifflet v. Morelle, 
68 Texas, 382; Moser v. Cochrane, 107 N. Y. 35. 

« See Chapter V. 

• Central B. Co. v. Kelly, 58 Ga. 107 ; Norman v. Wells, 17 Wend. 136; 
Bain v. Cushman, 60 Vermont, 343. 

T See Chapter VHI. 

8 Hill V. King Mfg. Co., 79 Ga. 105; Pennsylvania Co. v. Connell, 127 
ni. 419; Bepubllcan, etc. Co. v. Miner, 12 Col. 86; Common wealth v. 
Marzynski, 149 Mass. 68, 72. 



ADMISSIBILITY OP OPINIONS OP EXPERTS. 19 

as to their intended meaning is admissible/ Thus, 
it is said: '^Something may have previously passed 
which gives a peculiar character and meaning to 
some expression ; and some word which ordinarily 
or popularly is used in one sense, may from some- 
thing which has gone before be restricted and con- 
fined to a particular sense or may mean something 
different from that which it ordinarily and usually 
does mean. But the proper course of a counsel who 
proposes so to get rid of the plain and obvious mean- 
ing of words imputed to a defendant as spoken of 
the plaintiff, is to ask the witness not *what did you 
understand by those words?' but 'was there any- 
thing to prevent those words from conveying the 
meaning which ordinarily they would convey?' be- 
cause if there was, evidence of that may be given, 
and then the question may be put. When you have 
laid the foundation for it, the question may then be 
put 'what did you understand by them?' when it 
appears that something occurred by which the wit- 
ness understood the words in a sense different from 
their ordinary meaning.'" 

The right to introduce opinion evidence to explain 
the meaning of technical terms and unusual words is 
elsewhere considered.' 

§ 6. When Expert Testimony is Admissible. — ^The 
rule is, that the opinions of experts or skilled wit- 
nesses are admissible in evidence in those cases in 
which the matter of inquiry is such, that inexperi- 
enced persons are unlikely to prove capable of 
forming a correct judgment upon it, for the reason 

1 See Odger on Libel and Slander, 566. See Gribble v. Pioneer Press 
Co., 37 Minn. 277. 

> Daines v. Hartley, 3 Exch. 200. 

> See the section on technical terms and unsual words in Chapter VI. 



20 EXPERT TESTIMONY. 

that the subject-matter so far partakes of the nature 
of a science, art or trade, as to require a previous 
habit, or experience, or study in it, in order to ac- 
quire a knowledge of it. When the question in- 
volved does not lie within the range of common 
experience, or common knowledge, but requires 
special experience, or special knowledge, then the 
opinions of witnesses skilled in the particular science, 
art or trade to which the question relates, are ad- 
misssible in evidence.* ''It is not because a man 
has a reputation for sagacity, and judgment, and 

^Folkes v:Ohadd, 3 Douglas (26 Eng. C. L. 63), 175; Ohaurand v. 
Angerstein, Peake N. P. C. 61; Campbell v. RicardB, 5 Barn. A Ad. 840; 
Davis T. StAte, 38 Md. 15,38; City of Chicago v. McGiven, 78 Ul. 347; 
City of Parsons v. 'Lindsay, 26 Kan. 426, 432 ; Monroe v. Lattln, 25 Kan. 
351; Roberts v. Commissioners of Brown County, 21 Kan. 248; Crom- 
well V. Western Reserve Bank, 3 Ohio St. 406; Cleveland, etc. R. R. Co. 
V. Ball, 6 Ohio St. 568,573; Page v. Parker, 40 N. H. 59; Jones v. 
Tucker, 41 N. H. 546; Sowers v. Dukes, 8 Minn. 23; Cole v. Cla'-k, 3 
Wis. 323 ; Cottrill v. Myrick, 12 Me. 222, 231 ; Humphries v. Jolinson, 20 
Ind. 190; Dillard v. State, 58 Miss. 368; Wagner v. Jacob, 26 Mo. 530; 
Newmark v. Liverpool, etc. Ins. Co., 30 Mo. 165; Whitmore v. Bowman, 
4 G. Greene (Iowa), 148; Pelamourges v. Clark, 9 Iowa, 1, 13; Bearss 
V. Copley, 10 N. T. 95; Robertson v. Stark, 16 N. H. 109, 113; Norman 
V. Wells, 17 Wend. 136,162; Lincoln v. Saratoga, etc. R. R. Co., 23 
Wend. 425, 432; Terpenning v. The Corn Exchange Ins. Co., 43 N. T. 
279, 282; Evansville R. R. Co. v. Fitzpatrick, 10 Ind. 120; Mlshv. Wood, 
34 Pa. St. 451, 453; Snow v. Boston, etc. R. R. Co., 65 Me. 230; Teb- 
betts V. Haskins, 16 Me. 283, 287; Forbes v. Caruthers, 3 Yeates (Penn.), 
527 ; HasUngs v. Steamer Uncle Sam, 10 Cal. 341 ; Kline v. K. C, St. J., 
etc. R. R. Co., 50 Iowa, 656; Hamilton v. Des Moines Valley R. R. Co., 
36 Iowa, 31; Bills v. Ottumwa, 35 Iowa, 107; Higgins v. Carlton, 28 
Md.ll5; Marshall v. Columbian, etc. Ins. Co., 7 Foster (N. H.),157; 
mil V. Lafayette Ins. Co., 2 Mich. 476, 481; Milwaukee, etc. R. R. Co. 
V. Kellog, 94 U. S. 469, 473; Lester v.Pitsford, 7 Vt. 158; Cavendish v. 
Troy, 41 Vt. 99, 108; Rochester, etc. R. R. Co. v. Budlong, 10 How. Pr. 
289, 291; Slater v. Wilcox, 57 Barb. 604, 608; Taylor v* Town of Mon- 
roe, 43 Conn. 36, 43 ; State V.Clark, 15 S.C. (N.s.) 403,408; Dowd v. 
Guthrie, 13 m. App. 653; Sallwasser v. Hazllt, 18 ni. App. 243; Hilton 
V. Mason, 92 Ind. 157; Coyle v. Commonwealth, 104 Pa. St. 117; Clark 
V.Bruce, 19 Hun (N. Y.), 274, 276; Krippner v. Biebe, 28 Minn.140; 
Stowe V. Bishop, 58 Vt. 498, 501; Milwaukee, etc. R. R. Co. v. Kellog, 
94 U. S. 469; Donnelly v. Fitch, 136 Mass. 558. 



ADMISSIBILITY OF OPINIONS OF EXPERTS. 21 

power of reasoning, ' ' as Mr. Chief Justice Shaw has 
said, ''that his opinion is admissible; if so, such 
men might be called in all cases, to advise thejury, 
and it would change the mode of trial. But it is 
because a man's professional pursuits, his peculiar 
skill and knowledge in some department of science, 
not common to men in general, enable him to draw 
an inference, where men of common experience, 
after all the facts proved, would be left in doubt." * 
And the rule admitting the opinions of experts in 
such cases, is founded on necessitj^' for juries are 
not selected with any view to their knowledge of a 
particular science, art or trade, requiring a course 
of previous study, experience and preparation.' It, 
therefore, becomes matter of necessity, when ques- 
tions arise which do not lie within the ordinary 
information of men in general, but fall rather within 
the limits of some art or science, that juries should 
have the benefit to be derived from the opinions of 
witnesses possessing peculiar skill in the particular 
departments of knowledge to which such questions 
relate. So that it may be said that the foundation 
on which expert testimony rests, is the supposed 
superior knowledge or experience of the expert in 
relation to the subject-matter upon which he is 
permitted to give an opinion as evidence.* And it 
has been said that it is because all persons have not 
the leisure or capacity to master the principles of 
art or science, that those who are specially skilled 



1 New England Glass Co. v. LoYell, 7 Cash. 319. 
« State V. Clark, 12 Ired. (N. C.) Law, 152, 163; City ol Chicago v. 
McGiven, 78 111. 347. 
s Hartford Protection Ins. Co. v. Banner, 2 Ohio St. 452, 457. 
* Clark V. Bockland Water Power Co., 52 Me. 68, 77. 



22 EXPERT TESTIMONY. 

in either, are allowed to give their opinions in evi- 
dence.' 

The Supreme Court of New Hampshire, in de- 
claring under what circumstances the testimony of 
experts may be properly received in evidence, has 
classified the cases under three heads, and declares 
that experts may give their opinions: 

1. Upon questions of science, skill or trade, or 
others of like kind. 

2. When the subject-matter of inquiry is such, 
that inexperienced persons are unlikely to prove 
capable of forming a correct judgment upon it, 
without such assistance. 

3. When the subject-matter of investigation so far 
partakes of the nature of a science as to require a 
course of previous habit or study, in order to the 
attainment of a knowledge of it.' 

The following statement of the law upon this 
point is to be found in a decision of the Supreme 
Court of Iowa: '*Itis often very difficult to deter- 
mine in regard to what particular matters and points 
witnesses may give testimony by way of opinion. 
It is doubtftil whether all the cases can be harmo- 
nized, or brought within any general rule or princi- 
ple. The most comprehensive and accurate rule 
upon the subject, we believe to be as follows: That 
the opinion of witnesses possessing peculiar skill is 
admissible whenever the subject-matter of inquiry 
is such, that inexperienced persons are not likely to 
prove capable of forming a correct judgment upon 
it, without such assistance; in other words, when it 
so far partakes of the nature of a science, as to re- 

1 Atchison, etc. R. R. Co. v. United States, 15 Ct. of Claims, 140. 
s Jones Y. Tucker, 41 N. H. 546. 



ADMISSIBILITY OF OPINIONS OP EXPERTS. 23 

quire a course of previous habit or study in order 
to the attainment of a knowledge of it, and that the 
opinions of witnesses cannot be received when the 
inquiry is into a subject-matter, the nature of which 
is not such as to require any particular habits of 
study in order to qualify a man to understand it. 
If the relations of facts and their probable results 
can be determined without especial skill or study, 
the facts themselves must be given in evidence, and 
the conclusions or inferences must be drawn by the 
jury." ' 'The true test," says the Supreme Court 
of Connecticut, '*of the admissibility of such testi- 
mony, is not whether the subject-matter is common 
or uncommon, or whether many persons or few 
have some knowledge of the matter; but it is whether 
the witnesses offered as experts have any peculiar 
knowledge or experience, not common to the world, 
which renders their opinions, founded on such 
knowledge or experience, any aid to the court or to 
the jurj'- in determining the questions at issue." * 

The New York Court of Appeals has laid down the 
following rule : *' It is not suMcient to warrant the 
introduction of expert evidence that the witness 
may know more of the subject of inquiry, and may 
better comprehend and appreciate it than the jury ; 
but to warrant its introduction the subject of the 
inquiry must be one relating to' some trade, profes- 
sion, science or art in which persons instructed 
therein, by study or experience, may be supposed 
to have more skill and knowledge than jurors of 
average intelligence may be presumed generally to 
have."' 

1 Muldowney v. niiiiois Central R. R. Co., 36 Iowa, 472. 
* Taylor v. Town of Monroe, 43 Conn. 36, 44. 
FergoBon v. Hnbbell, 97 N. Y. 607, 613. 



24 EXPERT TESTIMOlTf . 

And in a well considered case in the Supreme 
Court of New York the rule was stated as follows : 
'* The governing rule deduced from the cases per- 
mitting the opinions of witnesses is that the subject 
must be one of science or skill, or one of which ob- 
servation and experience have given the opportunity 
and means of knowledge, which exists in reasons 
rather than descriptive facts, and therefore cannot 
be intelligently communicated to others not familiar 
with the subject so as to possess them with a full 
understanding of it.'" Expert testimony is admissi- 
ble when the question involved is one of professional 
or scientific knowledge.* 

$ 7. Meaiiiiigr of the Terms '^Science'' and '^Art/' 
— It is sometimes laid down in a general way, that 
the opinions of experts are admissible only when the 
subject-matter of inquiry relates to some '' science " 
or '' art." It is to be observed, however, that these 
words include all subjects on which a course of spe- 
cial study or experience is necessary to the forma- 
tion of an opinion,' and that it is not necessary *'that 
a specialty to enable one of its practitioners to be 
examined as an expert, should involve abstruse 
scientific conditions.''* ''Art, in its legal signifi- 
cance, embraces^ every operation of human intelli- 
gence, whereby something is produced outside of 
nature ; and the term 'science' includes all human 
knowledge which has been generalized, and sys- 
tematized, and has obtained method, relations and 
the forms of law.' "^ So that while it may belaid 

1 Schwander v. Birge, 46Hun (N. Y.), 66, 70. 

2 Van Wycklen v. City of Brooklyn, 41 Hun (N. Y.), 418. 
8 Stephen's Dig. of Law of Evid. Art. 49, p. 104. 

< Story V. Maclay, 3 Mon. (Ky.) 480, 483. 
. ^ Atchison, etc. R. R. Co. v. United States, 16 Ct. of Claims, 140, per 
Davis, J. 



INADMISSIBILITY OP OPINIONS OP EXPERTS. 25 

down that the opinions of experts are limited to 
matters of science, art or skill, yet this limitation is 
not applied in any rigid or narrow sense.* And 
every business or employment, which has a partic- 
ular class devoted to its pursuit, is said to be an art 
or trade, within the meaning of the rule.' As has 
been said in the Irish Exchequer Chamber by Pigot, 
C. B., *'the subjects to which this kind of evidence 
is applicable, are not confined to classed and spec- 
ified professions. It is applicable wherever peculiar 
skill and judgment, applied to a particular subject, 
are required to explain results, or trace th^m to their 
causes.'" 

§ 8. When the Opinions of Experts are Inadmis- 
sible. — The rule is well established that the opinions 
of experts cannot be received in evidence in cases 
where the subject-matter of inquiry is such that it 
may be presumed to lie within the common expe- 
rience of all men of common education, moving in 
the ordinary walks of life.* The opinions of such 
witnesses are inadmissible where the inquiry is into 



1 Clifford V. Richardson, 18 Vt. 620, 627 ; Sturgis v. Knapp, 33 Vt. 486, 
631. 

> Rochester, etc. R. R. Go y. Badlong, 10 How. Pr. 289, 291 ; and Tay- 
lor v. Town of Monroe, 43 Conn. 36, 43. 

» 1 Irish R. (Com. L.) 211, 218. 

^ New England Glass Co. v. Loyell, 7 Cush. (Mass.) 319; Shafter v. 
Evans, 53 Cal. 32; City of Chicago v. McGiven, 78 ni. 347; Naughton 
V. Stagg, 4 Mo. App. 2n ; Cook v. State, 24 N. J. Law, 843, 852; Dillard 
y. State, 58 Miss. 368; Gayick v. Pacific R. R. Co., 49 Mo. 274; Concord 
Railroad Co. y. Greely,3 Foster (N. H.), 237, 243; Nashyille, etc. R. R. 
Co. y. Carroll, 53 Tenn. 9^7; Linn y. Sigsbee, 67 El. 75; Veerhusen v. 
Chicago, etc. R. R. Co., 53 Wis. 689, 694; White y. Ballou, 8 Allen, 408; 
Hoyey y. Sawyer, 5 Allen, 554; Perkins y. Augusta, etc. Banking Co., 
10 Gray, 312 ; Clark y. Fisher, 1 Paige Cb. 171 ; s, c, 19 Am. Decis. 402 ; 
Monroe y. Lattin, 25 Kan. 351,354; People y. Mullen, 96 N.Y.408; Bal- 
timore, etc. R. R. Co. y. Leonhardt, 66 Md. 77, 78; State y. Anderson, 10 
Oregon, 448. 



26 EXPERT TESTIMONY, 

a subject, the nature of which is not such as to re- 
quire any peculiar habits or study in order to qual- 
ify a man to understand it, men of common informa- 
tion being capable of forming a judgment thereon/ 
If the facts can be placed before a jury, and they 
are of such a nature that jurors generally are just 
as competent to form opinions in reference to them 
and draw inferences from them as witnesses, then the 
opinions of experts cannot be received in evidence.* 
' 'To require the exclusion of such evidence, ' ' says the 
New York Court of Appeals, **it is not needed that 
the jurors should be able to see the facts as they 
appear to eye-witnesses, or to be as capable to draw 
conclusions from them as some witnesses might be, 
but it is sufficient that the facts can be presented in 
such a manner that jurors of ordinary intelligence 
and experience in the affairs of life can appreciate 
them, can base intelligent judgments upon them 
and comprehend them sufficiently for the ordinary 
administration of justice."' The Supreme Court of 
Pennsylvania, speaking of the same matter, says : 
''How any person can be said to bean expert in 
that which is not and cannot be followed as a busi- 
ness, or in that which must necessarily result from 
observation of a character so general that it must 
be common to every person, we cannot understand. 



1 Ferguson v. Hubbell, 97 N. Y. 507, 513; Pemuylvania Coal Co. v. 
Conlan, 101 m. 93; De Berry v. 0. C. R. B. Co., 100 N. C. 310, 316, 
aSSS) ; Welch y. Ins. Co. 23 W. Va. 288, 306; Gutridge v. Missouri, etc 
B. B. Co., 94 Mo. 468, 473; State v. Sorenson, 32 Minn. 120. 

s Stafford v. City of Oskaloosa, 64 Iowa, 251 ; Neilson v. Chicago, etc. 
E. B. Co., 68 Wis. 676; Stumore v. Shaw, 68 Md. 11, 19, (1887) ; May- 
hew V. Sullivan Mining Co., 76 Me. 100; St. Louis, etc. R. R. Co. v. 
Bitz, 33 Kan. 404; Kansas, etc. B. R. Co. v. Peavey, 29 Kan. 170; Ama- 
dou y. IngersoU, 34 Hun (N. Y.), 132, 134. 

« Ferguson v. Huhhell, 97 N. Y. 507, 513. 



INADMISSIBILITY OP OPINIONS OF EXPERTS. 27 

The opinion of a witness who neither knows, nor 
can know, more about the subject-matter than the 
jury, and who must draw his deductions from facts 
already in the possession of the jury, is not admissi- 
ble."^ 

$ 9. The Question of Admissibility of Expert Tes- 
timony is for the Court. — The question whether the 
subject-matter of inquiry in a particular case is of 
such a nature that it does not lie within the com- 
mon experience of all men of common education so 
that the testimony of experts is admissible in evi- 
dence, is a question which must be determined by 
the court. All the cases recognize the rule that it is 
for the court to determine whether the subject-mat- 
ter is one of science, art or trade, or whether it is 
a matter of common experience.* 

$ 10. Cases Illustrative of the Inadmissibility of 
the Opinions of Experts. — ^While there i& no doubt 
as to the general rule stated in the preceding sec- 
tion, it is often found exceedingly difficult to deter- 
mine whether the facts to be examined are such as 
lie within the common experience of all men of com- 
mon education, or whether they lie outside the range 
of ordinary intelligence. And the decisions are 
found to be by no means clear or satisfactory upon 
the distinctions between facts that lie within com- 
mon experience and ordinary intelligence, and those 
that lie beyond them. The principles on which the 
authorities rest have been very truly pronounced 
more consistent than the attempts which have been 
made to apply them in actual practice.' 

1 Franklin Ins. Co. y. Graver, 100 Pa. St. 266, 273. 
>See Dillardy. The State, 58 Miss. 868,388; Campbell v. Bosaell, 
139 Mass. 278. 
> Evans v. The People, 12 Mich. 27. 



28 EXPERT TESTIMONY. 

In illustration of the general principle that the 
opinions of experts will not be received as to facts 
within the common experience of men, we shall 
notice the following cases: Where one was indicted 
under a statute making it an oflfense to sell an ob- 
scene or indecent book, writing, picture or photo- 
graph, the question of obscenity or indeceny was 
considered as falling within the range of ordinary 
intelligence, so that it was not necessary to have an 
expert in literature or art to determine it/ 

That expert evidence was not admissible to show 
that actual danger from fire to certain premises had 
been increased by the erection of adjacent build- 
ings.' That it could not be received on the question 
whether the position of certain canal boats was a 
proper or improper position in which to lie at night.* 

It has been held that the opinion of one whose 
occupation was the braking and switching of cars, 
was inadmissible on the question of whether it 
would be prudent for a man to stand any other way 
than flatwise in making a coupling of cars, and 
whether it was considered safe or unsafe among 
brakemen to stand facing the draft iron while mak- 
ing the coupling.* That a railroad expert could not 
be asked whether the time which a railroad train 
stopped at a station was sufficient to enable passen- 
gers to get off.* That a railroad conductor could 
not be asked whether a person would have been 
thrown from the cars, if, at the time of the cars 



1 People V. Muller, 96 N. Y. 408. 

8 Franklin Fire Ins. Co . v. Graver, 100 Pa. St. 266. See chapter VI. 
« Case V. Perew, 46 Hun (N. Y.), 57. 

* Belair v. The C. & N. W. R. Co., 43 Iowa, 667; Muldowney v. Dll- 
nois Cent. R. R. Co., 36 Iowa, 472. 
« Keller v. N. Y. Central R. R. Co., 2 Abbott (Ct. of App.), 480. 



INADMISSIBILLITY OF OPINIONS OF EXPERTS. 29 

striking, he had been holding on to the brakes, and 
exercising ordinary care and prudence in his own 
protection and preservation/ That an experienced 
railroad man could not be asked the following ques- 
tion: ''Suppose there was a man standing by the 
side of a switch that night, and holding a lantern, 
such as you have described, a foot or two from the 
ground, how far away from the target could the man 
see the top of the target, or any part of the target 
above the lantern? '' ' 

So it has been held that a medical expert who had 
testified as to the injury of the plaintiffs fingers be- 
ing very severe — that the fingers were badly mashed 
— that the middle finger was quite stiff, and fore- 
finger permanently stiff — could not answer the fol- 
lowing questions: 

'*I will ask you to state to what extent the injury 
impairs the usefulness of that hand for any skilled 
occupation, or any occupation requiring a quick and 
ready use of the hand? ' ' 

''State the degree to which the usefulness of that 
hand would be impaired for skilled labor, requiring 
a quick and ready use of the fingers, such as coup- 
ling and braking cars on the railroad? ' ' ' 

That a physician could not testify as to the possi- 
bility of a rape having been committed in a partic- 
ular manner, described by the prosecutrix. "No 
peculiar knowledge of the human system was neces- 
sary to answer it. It was a mere question of relative 
strength or mechanical possibility, which an athlete 
or a mechanic could have answered as well as a 



1 Gavisk y. Pacific R. R., 49 Mo. 274. 

» Weane v. K. & D. M. R. Co., 45 Iowa, 246. 

» Kline v. The K. C, St. J. & C. B. R. Co., 50 Iowa, 656. 



30 EXPERT TESTIMONY. 

physician, and every man upon the jury as well as 
either/'^ 

That brokers and bankers could not be asked 
whether brokers and bankers would discount a note 
of the appearance of the one in question, without a 
wilful failure to inquire into the circumstances un- 
der which it was obtained — the note was written on 
tracing paper.' 

That detectives could not express an opinion as 
to whether it was possible to commit a robbery in 
the manner charged.' That a surveyor could not 
express an opinion as an expert as to where the 
highest part of a hill was.* That an innkeeper could 
not express an opinion as to whether it was safe for 
a guest to keep his money in a locked trunk.' 

That firemen, long connected with a city fire de- 
partment — to whom had been presented a plan of 
the buildings, with a statement of the distances 
between them, the materials of which they were 
constructed, the direction of the wind, the state of 
the weather, and the fact that no water was used 
on the fire — could not be asked whether or not, in 
their opinion, the dwelling house and connected 
buildings would take fire from the barn; whether or 
not it was a common occurrence for fire to be com- 
municated from leeward to windward across a space 
greater than twenty-six feet; whether or not, in 
their experience, large wooden buildings or large 



1 Cook V. state, 24 N. J. Law, 843. 

* Rowland v. Fowler, 37 Conn. 348. 

8 People V. Morrigan, 29 Mich. 1. "If experts were allowable on 
questions of criminal science, tlie professors and practitioners of that 
science would naturally be the experts needed.^' 

* Hovey v. Sawyer, 5 Allen (Mass.), 554. 
« Taylor v. Monnot, 4 Duer (N. Y.), 116. 



INADMISSIBILITY OF OPINIONS OP EXPERTS. 31 

fires made their own currents, frequently eddying 
against the prevailing wind/ 

That an expert accustomed to the use of fire-arms 
could not be asked whether a certain piece of paper 
had been used as wadding, and as such shot from a 
loaded gun.* That the question whether the de- 
ceased, seated at or near a window, through which 
he was shot, could have seen and recognized the 
person on the outside who inflicted the wound, was 
not one of skill or science, and that, therefore, ex- 
periments made by others, and the results thereof, 
and opinions founded thereon, were inadmissible.' 

That the opinion of a person experienced in clear- 
ing land by fire was inadmissible, as to the proba- 
bility that a fire set under the circumstances de- 
scribed by the witnesses, would have spread to the 
adjoining land.* 

Whether glass placed in a sidewalk to afford 
light to the area below is unsafe, by reason of 
the too great smoothness or slipperiness of its sur- 
face, is not a question of science or skill such as to 
render the opinions of witnesses admissible.* So it 
has been said that whether a street crossing is un- 
safe and dangerous is not a question of science or 
skill, upon which it is proper to receive the opin- 



1 state y. Watson, 65 Me. 74. 

«Manke v. People, 24 Hun (N. Y.), 316; 8. c, 78 N. Y. 611. The 
coart said it could have been determined by a jury from a descnption 
of the facts touching the appearance of the paper when found, such as 
the manner in which it was folded, whether it appeared to have been 
partially burned, whether it bore upon its creases traces of powder 
stains, etc. 

^ Jones T. State, 71 Ind. 66. 

* Higgins V. Dewey, 107 Mass. 494. And see Fraser v. Tupper, 29 Vt. 
409. 

» City of Chicago v. McGlven, 78 m. 347. 



32 EXPERT TESTIMONY. 

ions of witnesses/ In Wisconsin it is said that 
* 'possibly there might be cases in which the opinions 
of experts might be admissible upon matters going 
to the sufficiency of a highway. Generally, how- 
ever, it is a pure question of fact, not of science or 
skill."' 

^ 11. Inadmissibility of Opinions Founded on a 
Theory of Morals or Duty, — ^The opinion of a witness, 
not founded on science, but as a theory of morals or 
duty, is inadmissible in evidence, whether given by 
professional or unprofessional witnesses. Hence, 
where the question was whether a man who had 
committed suicide was sane or insane, the opinion 
of a physician that no sane man would commit sui- 
cide in a Christian country, was held inadmissible, 
as being founded, not on the phenomena of mind, 
but rather on a theory of morals, religion and a 
future state.' And the opinions of medical practi- 
tioners are inadmissible on the question whether a 
physician has honorably and faithfully discharged 
his duty to his medical brethren.* So it has been 
held that the opinion of an attorney, that a certain 
transaction was an honest one, was inadmissible.* 

The opinions of experts are ordinarily inadmissi- 
ble on questions of duty. Thus, it has been held 
that the opinions of tenders of draw-bridges were 
inadmissible as to the necessity of keeping gates 
shut, and hanging out lanterns for the proper pro- 



1 City of Pareons v. Lindsay, 26 Kan. 426, 432. 

« Benedict v. City of Fond du Lac, 44 Wig. 406. And see Oleson v. 
Tolford, 37 Wis. 327; Montgomery v. Scott, 34 Wis. 338. 

8 St. Louis Mutual Life Ins. Co. v. Graves, 6 Bush (Ky.), 290. See 
Frary v. Gusha, 59 Vt. 257. 

^ Ramadge v. Ryan, 9 Bing. 333. 

« Sweet V. Wright, 62 Iowa, 215. 



INADMISSIBILITY OP OPINIONS. 33 

tection of travelers, while. a draw was open in the 
night time/ So while witnesses cannot be per- 
mitted to express an opinion that a person performed 
a certain service in the manner required of him in 
the proper discharge of his duty, yet it is competent 
for any witness having personal knowledge of the 
facts to state what services are performed, by per- 
sons employed in a certain capacity, in the discharge 
of their duty.' 

^ 12. Inadmissibility of Opinions on Abstract 
Questions of Science, not Belated to the Facts in 
Issue. — The opinions of professional witnesses can- 
not be asked upon mere abstract questions of science, 
having no proper relation to the facts upon which 
the jury are to pass. The opinion of an expert, to 
be admissible, on the direct examination, must 
always be predicated upon, and relate to the facts 
disclosed by the evidence in the case.' 

^13. Inadmissibility of Opinions Based on Spec- 
ulative i>ata. — The rule is, that the opinions of ex- 
perts are not admissible when based on merely spec- 
ulative data.* On a trial for murder, where the 
question was asked whether the deceased was not 
addicted to the excessive use of snuff and violent 
fits of passion, the evidence being desired as a basis 
for the introduction of expert testimony, to prove 
that such haTbits and temperament indicated the 

1 Nowell V. Wright, 3 Allen (Mass.), 166, 170. And see Raymond v. 
City of Lowell, 6 Ou^h. (Mass.) 524, 531 ; Grand Rapids, etc. R. R. Co. 
v. Ellison, 117 Ind. 234, 241. 

> Allen V. Railroad Co., 57 Iowa, 626; Missouri, etc. R. R. Co. v. 
Mackey, 33 Kan. 299. 

8 Champ V. Commonwealth, 2 Met. (Ky.) 18. 

* Cooper V. State, 23 Texas, 336, 337. And see Winter v. City Council, 
79 Ala. 481. 

(3) 



34 EXPERT TESTIMONY. 

probable presence of a condition from which sudden 
death might well have resulted, without reference 
to the blow given by the prisoner, it was held that 
such expert testimony could not be received, as no 
evidence had been introduced, and none offered, to 
prove that the deceased was in a violent fit of pas- 
sion, or had taken an overdose of snuff at the time 
the blow was struck. The court ruled the testi- 
mony inadmissible, as being speculative in its 
nature.^ And where it did not appear that the med- 
ical witness had been present at the post-mortem 
examination, or that he had any knowledge of the 
case, or the kind, or extent of the examination 
needed, the court refused to allow him to an- 
swer the following question: '* For the purpose 
of arriving at a correct conclusion in the case 
of the death of a person, where you don't know 
to your own satisfaction what caused the death, how 
long a time should two men give to a post-mortem 
examination? And would four hours be sufficient?" * 
So an engineer has not been permitted to express an 
opinion as to the original purpose in view, in build- 
ing a wall which had been standing between twenty 
or thirty years.' The Supreme Court of Mississippi 
has held it to be incompetent to show by the testi- 
mony of professional persons, in impeachment of the 
mother's testimony, in a prosecution for bastardy, 
that it was highly improbable that impregnation 
could be produced liy the first act of coition.* Such 
testimony was said to be too uncertain, indefinite, 
and hypothetical to form the basis of judicial 

1 Ebo8 V. State, 34 Ark. 520. 
> state v. Pike. 65 Me. 111. 
« Sinnott v. Mullln, 82 Pa. St. 342. 
^ Anonymous, 37 Miss. 54. 



ADMISSIBILITY OF THE TESTIMONY. 35 

action. ''The courts, in our opinion,*' it is said, 
*'have gone quite far enough in subjecting the life, 
liberty and property of the citizen to the mere spec- 
ulative opmioai^ of men claiming to be experts in 
matters of science, whose confidence, in many cases, 
bears a direct similitude and ratio to their ignorance. 
We are not disposed to extend this doctrine into the 
field of hypothetical conjecture and probability, and 
to give certainty as evidence, to that which, in its 
very nature, must be wholly uncertain and unsatis- 
factory; dependent on circumstances and conditions 
entirely secret, hidden and unknown, as facts, and 
without a knowledge of which, neither science nor 
experience, could afford us the remotest informa- 
tion/' 

But an expert, speaking on a question of science, 
can be asked, in presence of a given effect, of what 
causes it either was, or might be the resultant. 
Such an inquiry is not regarded as speculative in 
any objectionable sense, but is a common and proper 
mode of examination.^ One, however, who is not 
an expert, cannot ordinarily give his opinion as to 
the cause of a given effect.* 

$ 14. Admissibility of the Testimony of Experts 
Who Have Made Ex Parte Investigrations. — In many 
cases it is no doubt advisable that notice should be 
given to the opposing interest of an intention to 
have experts make an investigation of the facts in- 
volved in the particular case. And whenever prac- 
ticable it would be proper that such notice should be 
given. Of course, in the case of public officers car- 
rying on an investigation immediately after the com- 

1 Moyer v. N. Y. Central, etc. R. R. Co., 98 N. Y. 646. 
> Sbaw y. Susquehanna Boom Co., 125 Pa. St. 324. 



36 EXPERT TESTIMONY. 

mission of a crime, their public action may no doubt 
be considered adequate notice of their proceedings 
to all parties. But the question has been raised 
whether notice is not essential when it is desired to 
make an examination after the preliminary inquiries 
conducted by the magistrates have been terminated. 
The opinion has been expressed by distinguished 
writers on medical jurisprudence that not only is 
notice to opposing interests desirable in such cases, 
but that * 'there can be no question that when the 
question comes fairly up such examination, when 
taken flagrantly ex parte at a time when there could 
readily have been notice to the opposite side, will 
be ruled out as inadmissible."^ In this, we think, 
they are mistaken; not only has the practice been 
to receive the testimony of experts who have made 
ex parte investigations, but, in our opinion, it is en- 
tirely proper that the testimony should be allowed 
to go to the jury, whose duty it is to determine the 
weight to be accorded to it in the light of all the 
circumstances, the character of the experts, the care 
and skill with which they appear to have carried on 
their investigations, and the manner in which they 
sustain themselves on the cross-examination. No 
necessity exists for excluding the testimony of an 
expert as to the facts which he has learned merely 
because his knowledge of the facts was acquired at 
a time and place when the opposite party was not 
present. Both on principle and authority such tes- 
timony is admissible in evidence.* 

When a post-mortem examination of a deceased 

1 Wharton and Stile's Medical Jurisprudence, Sec. 1246. 

« People V. Foley, 64 Mich. 148, (1887) ; State v. Leabo, 89 Mo. 247, 
(1886) ; state y. Brooks, 92 Mo. 542, 579, (1887) ; State v. Bowman,80 N. 
0.432,437,(1879). 



ADMISSIBILITY OF THE TESTIMONY. 37 

person is made, the admissibility of the testimony 
of the physicians who made it does not at all de- 
pend on the thoroughness of the examination which 
they made/ In the case cited, the question was 
whether death had been caused by internal disease 
or external violence. And the physicians were al- 
lowed to express an opinion thereon, although their 
examination had not been sufficiently thorough to 
enable them to state that no other cause existed 
than the one they assigned, to which the death could 
be attributed. 

1 state V. Porter, 34 Iowa, 131, 134. 



38 EXPERT TESTIMONY. 



CHAPTER II. 

THE COMPETENCY OF EXPERT WITNESSES. 

SECTION. 

15. The Qualification of the Witness to Testify as an Expert Most First 

be Shown. 

16. The Competency of the Witness a Question for the Court. 

17. Preliminary Examination of the Expert. 

18. Competency of Experts Whose Knowledge is Derived from Ex- 

perience. 

19. Competency of Experts Whose Knowledge is Derived from Study. 

20. Competencj of Experts Whose Knowledge is Derived from Ob- 

servation. 

21. Upon What the Competency of Experts Rests. 

22. The Competency of the Witness as a Subject of Review in an 

Appellate Court. 

23. How the Objection to the Competency Should be Taken. 

24. Competency as Dependent on Whether the Expert has Heard the 

Testimony. 
26. Competency of Experts in Particular Cases. 

$ 15. The Qualification of the Witness to Testify 
as an Bxpert Must First be Shown. — It having been 
determined that the subject concerning which the 
witness is to testify is one upon which the opinion 
of an expert can be received, the next question 
which arises is whether the witness is possessed of 
the qualifications necessary to entitle him to testify 
as an expert. That he is possessed of the requisite 
qualifications must appear in evidence before he can 



COMPETENCY OF WITNESSES. 39 

properly be permitted to give expert testimony/ 
It would be as improper to allow a witness to testify 
as an expert without first showing that he was pos- 
sessed of the peculiar khowledge or skill which one 
must have to be an expert, as it would be to allow 
secondary evidence of the contents of a lost paper 
without having first shown that the paper was lost, 
and that a diligent and thorough search for it had 
been made without finding it.* 

§ 16. Competency of the Witness a Question for 
the Court. — The question whether the witness pos- 
sesses the necessary qualifications to render him 
competent to testify in the character of an expert, 
is a preliminary question addressed to the court, 
which should be satisfied upon that point, by the 
presentation of proper evidence.* The question 
must be determined by the court, and cannot be 



1 Chicago A Alton B. B. Co. v. Springfield & Northwestern R. B. Co., 
67 ni. 142; Heald v. Thing, 45 Me. 392; State v. Secrest, 80 N. 0. 460; 
Washington v. Cole, 6 Ala. 212; Tullis v. Kidd, 12 Ala. 648; State v. 
Ward, 29 Vt. 226, 236; Tyler v. Todd, 36 Conn. 218, 221; Sandwich 
Mnfg. Co. V. Nicholson, 32 Kan. 666; Citizens' Gas Light & Heating 
Co. V. O^Brien, 15 Brad. (Ul.) 400, 409; Harris v. Township of Clinton, 
64 Mich. 467. 

> See Jones v. Tucker, 41 N. H. 646. 

•Nelson v. Sun Mut. Ins. Co., 71 N. Y. 463, 460; Lincoln v. Inhab- 
itants of Barre, 6 Cush. 591; Flynt v. Bodenhamer, 80 N. C. 206, 207; 
Gulf City Ins. Co. v. Stephens, 52 Ala. 121 ; Forgery v. First National 
Bank, 66 Ind. 123; Davis v. State, 36 Ind. 496; Boardman v. Woodman, 
47 N. H. 120, 136; Sorg v. First German Congregation, 63 Penn. St. 156; 
U. S. V. Kapatrick, 16 Fed. Eep. 765, 772; Chandler v. Thomp- 
son, 30 Fed. Bep. 38; State v. Cole, 63 Iowa, 696; Broquet v. Tripp, 36 
Kan. 700; Carpenter v. Corinth, 58 Yt. 214, 216; Beynolds v. Lounsbury, 
6 Hill (N. Y.), 634; Sikes v. Paine, 10 Ired. (N. C.) Law, 282; State 
V. Secrest, 80 N. C. 460; Washington v. Cole, 6 Ala. 212; Tullisv. Kidd, 
12 Ala. 648; Woodman v. Dana, 62 Me. 9, 13 ; Delaware, etc. Steam Tow- 
boat Co. V. Starrs, 69 Penn. St. 36; Jones v. Tucker, 41 N. H. 646; 
Snowden v. Idaho Quartz Mnfg. Co., 55 Cal. 450; McEwen v. Bigelow, 
40 Mich. 217 ; Ives v. Leonard, 60 Mich. 296 ; State v. Ward, 29 Yt. 225, 236. 



40 EXPERT TESTIMONY. 

referred by it to the jury/ And in determining 
whether the witness is a person of skill, in the par- 
ticular department or subject-matter in which his 
opinion is desired, very much is left to the discretion 
of the presiding judge.' The right to review his 
decision in an appellate court will be subsequently 
considered. 

In a case tried by a referee, the qualification of 
the witness to give opinion evidence is a question 
to be determined by the referee at the trial.* 

§ 17. Preliminary dxamination of Expert.-^For 
the purpose of determining the competency of the 
witness, a preliminary examination takes place, in 
which the witness may be asked to state his ac- 
quaintance with the subject-matter in reference to 
which his opinion is desired, and what he has done 
to qualify himself as an expert in that particular 
department of inquiry.* But the opinion of the 
witness as to whether he considers himself quali- 
fied to give an opinion as an expert would seem to 
be irrelevant, as that is a question for the court 
alone.* The court is also at liberty to examine other 

^Fairbank y. Haghson, 58 Cal. 314. In this case the Supreme 
Court of California reversed a judgment, because the trial court allowed 
a book-keeper in a bank to testify (having been offered as an expert in 
handwriting), with the remark : *^I shall hold it is for the jury to say 
how much he knows about it. I will admit the testimony.'' And see 
Heacock v. State, 13 Tex. Ct. of App. 97, 131. 

> Hills v. Home Ins. Co., 129 Mass. 345; Chandler v. Jamaica Pond 
Aqueduct, 125 Mass. 544, 551 ; Tucker v. Massachusetts Central B. R. 
Co., 118 Mass. 546; Lawrence v. Boston, 119 Mass. 126; Lawton v« 
Chase, 108 Mass. 238, 241; Berg v. Spink, 24 Minn. 138, 139; Howard v« 
Providence, 6 R. I. 516; Ardesco Oil Co. v. Gilson, 63 Penn. St. 146, 152; 
Erippner v. Blebl, 28 Minn. 139; Sarle v. Arnold, 7 B. I. 586; Delaware, 
etc. Steam Towboat Co. v. Starrs, 69 Penn. St. 36. 

s Goodwin v. Scott, 61 N. H. 112. 

* Boardman v. Woodman, 47 N. H. 120, 135. 

'Boardman v. Woodman, 47 K. H. 120; Naughton v. Stagg) 4 Mo. 
App. 27. 



PRELIMINARY EXAMINATION OP EXPERT." 41 

witnesses to aid it in determining whether he is qual- 
ified to draw correct conclusions upon questions 
relating to the science or trade in relation to which 
he is to be examined/ In a case where it was con- 
tended that no evidence of the qualifications of a 
person to testify as an expert was admissible until 
the expert himself had been introduced as a witness 
upon the stand, and an opportunity aflforded for a 
cross-examination, the court declared that its atten- 
tion had not been called to any such rule, and it 
thought none such existed, and added: ''Any evi- 
dence tending to show that the witness called as an 
expert possesses the requisite knowledge and skill 
is, we think, admissible for what it is worth.'' ' On 
this preliminary examination the court simply de- 
cides upon proof of the opportunities which the 
witness has had for acquiring special knowledge 
and experience in the subject-matter, that the jury 
may hear his opinion as a person of science and 
skill.' 

It is not easy for an incompetent person to sus- 
tain himself in the character of an expert witness. 
Consequently, on the preliminary question as to the 
qualifications of the witness to testify as an expert, 
it is not often the case that the subject is very fully 
gone into. The witness is usually allowed, after 
slight evidence as to his qualifications has been 
given, to testify in the character of an expert, it 
being left to counsel on the cross-examination, and 
otherwise, to show the absence of qualification, and 

1 Mendam v. Commonwealth, 6 Rand. (Va.) 704, 710; Tullis v. Kidd, 
12 Ala. 648; Laros v. Commonwealth, 84 Pa. St. 200; Mason v. Phelps, 
48 Mich. 127. 

> state T. Maynes, 61 Iowa, 119. 

s state V. Secrest, 80 N. C. 450, 457. 



42 EXPERT TESTIMONY. 

the consequent worthlessness of the testimony. 
But if opposing counsel think the evidence of quali- 
fication is insuflficient to establish the right of the 
witness to testify as an expert, their proper course 
is to object on that specific ground. For if no such 
objection is interposed the court may assume that 
counsel is satisfied as to the competency of the wit- 
ness,^ and counsel may, as a consequence, be pre- 
vented from having the matter reviewed in the 
higher court.' 

When it is made to appear prima facie that the 
witness possesses the qualifications of an expert, the 
court may admit the testimony, and is not bound to 
allow a preliminary cross-examination.' Opposing 
counsel have the opportunity on the cross-examina- 
tion in chief to impeach his skill and test his com- 
petency. 

Of course it is error to allow a witness to testify 
as an expert without some preliminary examination 
as to his qualifications.* But whether counsel can 
avail themselves of the error will depend on cir- 
cumstances, elsewhere considered.*^ 

§ 18. Competency of Experts Whose Knowledge 
is Derived from Experience. — ^We have seen that the 
ground on which expert testimony is received in 
evidence is, that the subject in controversy depends 
on science or peculiar skill or knowledge. We have 
also seen that before a witness can be allowed to 
give testimony as an expert it must be made to 

1 See The State t. Cole, 63 Iowa, 695, 699. 
s See section 22. 

» Sarle v. Arnold, 7 R. I. 682; City of Fort Wayne v. Combs, 107 Ind. 
75,86. 
* state V. Secrest, 80 N. C. 460. 
' See section 23. 



COMPETENCY OF EXPERTS. 43 

appeajr that he is an expert or experienced person 
in the matter concerning which he is to testify. 
The peculiar skill, knowledge or experience which 
qualifies one to testify as an expert is, as a general 
rule, that which has been acquired by the witness 
in his trade, profession or calling.^ A person en- 
gaged in a particular profession, trade or calling is 
presumed to understand thoroughly the questions 
pertaining to such profession, trade or calling, and 
to be competent to testify in respect to the same.' 

But in such cases the competency of the witness 
to testify does not depend on his being actually en- 
gaged in the practice of the profession, trade or 
calling at the time he gives his testimony, he hav- 
ing been previously employed therein.* Hence one 
who, at the time he was offered as a witness was a 
student at law, has been allowed to testify as an ex- 
pert in the tanning business, he having formerly 
been employed in that trade.* ''There was nothing 
in the change of employment, from tanning hides 
to the study of the law, which would necessarily 
deprive him of the skill acquired in his original 
trade.'' 

The mere fact that the witness was at one time 
and in former years engaged in the practice of the 
art or trade would not, in every case, make it the 
duty of the court to allow him to testify as an ex- 
pert in regard to the same. In a case where one 

^ Lincoln v. Inhabitants of Barre, 5 Cush. 691. 

« MlBSOurl, etc. R. B. Co. v. Finley, 68 Kan. 650. 

s Vander Donckt v. Thellusson, 8 Man. G. & S. (66 Eng. 0. L.) 812. 
^^Whatever the line of business he now follows, if he was an expert be- 
fore, he can hardly be said to be less so now,'* per Mr. Justice Maule. 
See, too, Roberts y. Johnson, 58 N. Y. 613; Tullis v. Eidd, 12 Ala. 648, 
650. 

< Bearss v. Copley, 10 N. Y. 95. 



44 EXPERT TESTIMONY. 

was offered as an expert in a matter of plumbing, 
and it appeared that he had been a plumber many 
years ago, but had not been such for twenty years, 
it was held that the trial court committed no error 
in declining to receive his testimony/ It is evideijt 
that in all such cases the question of competency 
must depend largely on the nature of the trade or 
occupation, as well as on the length of time since 
the witness abandoned it. 

The kernel of this character of expert is said to be 
the fact of peculiar knowledge or skill derived from 
experience in the particular matter in question.* 
And the court should be satisfied that he is pos- 
sessed of this peculiar knowledge or skill at the 
time he gives his testimony. If not possessed by 
the witness at that time it avails nothing that he 
was possessed of it at some former time, but if he has 
practical skill or scientific knowledge and experi- 
ence as to the matters under investigation, he is 
competent to testify.' 

We have stated at the beginning of this section 
that the peculiar skill or knowledge which entitles 
a witness to testify as an expert is usually that 
which the witness has derived from his trade, pro- 
fession or calling. While this is usually the case it 
has been held to be not in every case necessarily 
so. If the witness has been so instructed by ex- 
perience as to have peculiar sources of knowl- 
edge to guide him on the subject under investi- 
gation, fitting him to answer with more accuracy 
than others, he has been said to be a competent 
witness to express an opinion in relation to the 

1 McEwen v. Bigelow, 40 Mich. 215. 

8 Wright V. Wmiams' Estate, 47 Vt. 222, 223. 

s The Sioux City, etc. B. B. Co. v. Finlayson, 16 Neb. 678, 587. 



COMPETENCY OF EXPERTS. 45 

same/ ' The matter was well put by Mr. Justice 
Talcott of New York, when he said: ''The opinions 
of experts are only admissible when it appears from 
the nature of their avocations, or from their testi- 
mony concerning their experience, that the matter 
inquired about involves some degree of science or 
skill which they have made use of, so that from ex- 
perience they are fitted to answer the question pro- 
pounded with more accuracy than others, who may 
not have been called upon to employ science or ex- 
ercise skill on the subject.'" In the Court of Ap- 
peals of Maryland, the principle is stated as follows: 
''When the subject under investigation is one requir- 
ing special skill and knowledge, they (the jury) may 
be aided by the opinions of persons whose pursuits or 
studies or experience have given them a familiarity 
with the matter in hand.'" 

In the Supreme Court of Pennsylvania, it is said: 
"It was said by the present chief justice that no 
clearly defined rule can be found as to what consti- 
tutes an expert. Much depends on the nature of 
the question in regard to which an opinion is asked. 
While undoubtedly it must appear that the witness 
has enjoyed some means of special knowledge or 
experience, no rule can be laid down in the nature 
of things as to the extent of it."* 

^19. Competency of Experts Whose Knowledge 
is Derived from Study. — A witness, otherwise quali- 
fied, may express an opinion on a matter pertaining 
to his special calling or profession, although his 
knowledge of that particular matter has been de- 

1 See Hand v. Church, 39 Hun (N. Y.), 304. 

« Clark V. Bruce, 12 Hun (N. Y.), 271, 276. 

« Baltimore, etc. R. B. Co. v. Leonhardt, 66 Md. 77, 78. 

4 Monongahela Water Co. v. Stewartson, 96 Pa. St. 436, 439. 



46 EXPERT TESTIMONY. 

rived from study rather than from actual experi- 
ence. It is the doctrine of the courts that 
study of a matter without practical experience in 
regard to it may quality a witness as an expert.^ 
But a witness cannot testify as an expert on 
a particular matter when that particular matter does 
not pertain to his special calling or profession, and 
his knowledge of the subject of inquiry has been 
derived from study alone. It would be most un- 
wise to recognize the principle that a person might 
qualify himself to testify as an expert in a particular 
case, merely by devoting himself to a study of the 
authorities for the purpose of giving such testimony, 
when such reading and study is not in the line of 
his special calling or profession. A lawyer would 
not be competent to express an opinion on a ques- 
tion of medical science, from information which he 
might acquire from reading medical authorities 
bearing on such question. Neither would a physi- 
cian be qualified to express an opinion on a ques- 
tion of foreign law, from information which he 
might acquire by an examination of legal authori- 
ties. While the opinion of either would not be 
inadmissible on a question lying within the domain 
of their particular department of science, merely 
because such opinion was based on information ac- 
quired from books. In the English case of Collier 
V. Simpson,^ Mr. Chief Justice Tindal laid down the 
doctrine, that an expert could be asked whether in 
the course of his reading he had found so and so 
laid down, and that his judgment and the grounds 
of it could be founded in some degree on books as a 

^Clty of Fort Wayne v. Combs, 107 Ind. 75, 87; Howard v. Great 
Western, etc Co., 109 Mass. 384; Swett v. Shnmway, 102 Mass. 365. 
> 5 Car. & Payne, 73 ; 8. c, 24 £ng. C. L. 219. 



COMPETENCY OF EXPERTS. 47 

part of his general knowledge. And the authority 
of that case has been recognized and followed in 
this country. 

Thus it has been held that a medical man may 
state his knowledge of a particular subject in med- 
ical science, although such knowledge was not de- 
rived fron;i experience or actual observation, but 
from what he had learned from reading and study- 
ing medical authorities.^ 

In a case decided in the Supreme Court of Georgia, 
an expert, who was a civil engineer, stated the rules 
for the construction of cuts and embankments as 
such rules are found in standard works on engineer- 
ing, and added: *'I give these rules solely from 
what I recollect of the books. These rules are found 
inMahan, Gillespie and Gilmore, and many others.'' 
The court held that *'the expert was competent to 
testify. Every expert derives much of his knowl- 
edge from books as well as from experience, and can 
give his opinion based upon the knowledge acquired 
from. both sources."* 

In the same way a teacher of natural sciences, 
who in the teaching of that science had had 
occasion to investigate the gases produced by the 
combustion of hard coal, was held competent to 
testify as to the eflFect upon a human being of 
breathing poisonous gases, although his knowledge 
had not been gained by actual experience and ob- 
servation.' 



* state V. Wood, 53 N. H. 484; State v. TerriU, 12 Rich. (N. C.) 321 ; 
Melvin v. Easley, 1 Jones (N. 0.) Law, 3S8. 

« Central B. B. Co. v. MitcheU, 63 Ga. 173; s. C, 1 Am. & Eng. R. R. 
Cases, 145. 

« Citizens' Gas Light, etc. Co. v. O^Brien, 19 Brad. (lU.) 231, 233. 



48 EXPERT TESTIMONY, 

On the other hand, as we have said, study alone 
does not qualify one to express an opinion on a 
subject not pertaining to the special calling or pro- 
fession to which the witness belongs. Thus, where 
the question was whether the editor of a stock 
journal who had read extensively on the subject of 
* 'foot-rot" could testify as an expert in relation to 
that disease, it was held that he could not. The 
subject of the competency of experts, whose knowl- 
edge was derived from study only, was discussed 
with such force and clearness as to warrant its repe- 
tition in the note below. ^ In the same way it has 

7 In Dole Y. Johnson, 60 N. H. 452, a Mr. Waite, editor of a stock 
journal, who had read extensively on the subject of "foot-rot,*^ but who 
was without practical experience as to the treatment of the disease, 
had been called as an expert on the question whether the ' 'foot-rot'* is 
evei a spontaneous disease, or is bred only by contact. Mr. Justice 
Foster, speaking for the court, said : ''Mr. Waite had no skill what- 
ever, *no practical experience in the treatment of sheep for any dis- 
ease;' that he must then have had special and peculiar knowledge; that 
he must have been really a man of science, in order to be qualified to 
give an opinion, would seem to be a settled and definite rule of law. 
The extent ofMr. Waite's qualification is thus described: 'As editor 
of a stock journal, he had read extensively on the subject of foot-rot.' 
The object of all testimony in courts Is to place before the jury a knowl- 
edge of facts pertaining to the case under consideration, and It is a 
serious departure from this purpose ever to admit, Instead of actual 
knowledge, mere opinion, however correct it may probably be, and 
therefore opinion, if admitted at all, should be as nearly approximated 
as possible to the actual knowledge of fact for which It Is substituted; 
and it should always be required of an expert, that he should, at least, 
be sufficiently acquainted with the subject-matter of his testimony to 
know what its laws are, and not merely to conjecture or to have an Idea 
about It. That Is, he should be really a man of science. The science 
(especially In the absence of skill) ^ which an expert should be required 
to possess and employ on a given subjecti Implies that special and pecu- 
liar knowledge acquired only by a course of observation and study, and 
the expenditure of time, labor and preparation. In a particular employ- 
ment and calling of life. The matter of our present consideration is of 
vast Importance. * ♦ ♦ 

'*We admit the wisdom of the rule which, permitting a man of genu- 
ine science to give as his opinion the results of study and research into 



COMPETENCY OF EXPERTS. 49 

been held that a lawyer who had reaci extensively 
on the subject, and who had listened to the testi- 
mony of experts in court, was not competent to give 

books of acknowledged authority, yet will not allow such books to be 
read in court to the jury. The rule is founded partly in the delay which 
would thus be occasioned to the business of courts, and partly in the 
idea that it is safer, on the whole, to trust to the judgment of learned 
men, acquired by study, observation and skill, than to the imperfect 
deductions of jurors, hastily derived from readings not familiar to them, 
unassisted by study, examination and comparison of kindred subjects 
(though we must confess that, in a particular case, we may have little 
doubt that a page fromYonatt or Morrell would be a safer guide for the 
jury than the opinion of such a witness as Mr. Waite). But so long as 
the opinions of the most distinguished and most learned authors in the 
world, expressed through the direct and pure media of their celebrated 
works, are thus excluded from the jury, surely it can be neither wise 
nor prudent to admit opinions unsustalned by the slightest experience 
or even observation, the deductions of readings at best scanty and 
superficial, because not pertaining to the $pecial study and business of 
the reader. * ♦ • 

^^Of course it must be admitted tbat the testimony of knowledge and 
opinion, obtained from mere reading, without study, reflection or ob- 
servation, is no more than a relation by the witness of that which the 
policy of the law excludes, namely, the books themselves which the 
witness has read. 

*^The limit of safety in this direction is reached, it would seem, when 
we admit, as the practice in this State is, the opinions of medical men, 
for instance, with regard to a disease which in actual practice they may 
not have treated, but concerning which the science and skill of long 
experience in the affinities and analogies of the subject have prepared 
them to speak with confidence, from a knowledge of the rules and laws 
governing the special subject of inquiry. ♦ ♦ ♦ 

^^And so the practice in this State permits the skilled practitioner, 
who has made himself familiar with the science of medicine or surgery 
by a long course of study and practical experience with kindred sub- 
jects, to testify as an expert ; and common sense demands that such a 
man shall have respect given to bis opinion, though he may have had 
no practical experience in a particular case. 

^^But how is it in the case of this witness? He was not a veterinarian, 
nor any other kind of a physician or surgeon. ^He had bad no practi- 
cal experience in the treatment of sheep,' nor of any person or thing 
'for any disease.' He was the editor of a newspaper, devoted, not to 
the special consideration of this, nor even of kindred subjects, but em- 
bracing the very large class of matters ordinarily included in a stock 
journal. His newspaper was, probably, the ordinary collection of 

(4) 



50 EXPERT TESTIMONY. 

his opinion as* to the symptoms and causes of Texas 
fever as affecting cattle."^ 

On the subject of opinions based on study, the 
following excerpt from an opinion pronounced by 
Mr. Justice Campbell is of interest, and therefore 
given at length. He says: *'No one has any title 
to respect as an expert, or has any right to give an 
opinion upon the stand, unless as his own opinion; 
and if he has not given the subject involved such 
careful and discriminating study as has resulted in 
the formation of a definite opinion, he has no busi- 

miscellaneous literature and news items, conoeming all the diverse 
matters embraced within the range of such a production, its editor hav- 
ing and making no pretension to veterinary skill and practice. 

*^It being evident, too, that in the line of his comprehensive reading 
and study the subject of the diseases of animals was by no means a 
specialty, the element of editorship has in reality nothing to do with 
the party's qualifications. <As an editor,' it is said *he had read exten- 
sively on the subject of foot-rot.' So, as a lawyer, prosecuting or de- 
fending a man charged with murder, I, who am not a doctor, may have 
read extensively on the subject of the effects of strychnine and its mani- 
festations after death, and, as the result of my reading, I might well 
form the opinion that enough of strychnine might be administered to 
cause death, without a possibility that a medical man or chemist could 
be able to detect it in the stomach or blood of the deceased ; but, it is to 
be hoped, my opinion upon this subject would not be allowed. And, as 
a lawyer, also, in the examination of this case, I have, in fact, read ex- 
tensively on the subject of foot-rot, the books of Morrell, Youatt and 
Clock. ♦ • ♦ 

*^As the result of my reading, I should, perhaps, be inclined to believe 
the disease is not contagious, but my opinion is no more admissible than 
the books themselves of these authors. They are men of acknowledged 
science and skill. The witness in this case can have examined no 
better authority. Why should his opinion, without practical skill and 
experience, be received, and theirs rejected? 

^'In view of all these considerations, and of the evidence reported by 
the case submitted to us, we are stroogly of the opinion that the wit- 
ness, having confessedly no veterinary skill nor practice, having also 
no professional education, not being in any true sense a man of science, 
because not instructed and prepared by a long course of habit of study 
concerning the diseases of domestic animals, did not possess the legal 
qualifications of an expert." 

1 Missouri, etc. B. B. Co. v. Finley, 3S Kuii. 550, 560. 



COMPETENCY OP EXPERTS. 51 

ness to give it. ' Such an opinion can only be safely 
formed or expressed by persons who have made the 
scientific questions involved matters of definite and 
intelligent study, and who have by such application 
made up their own minds. In doing so, it is their 
business to resort to such aids of reading and study 
as they have reason to believe contain the informa- 
tion they need. This will naturally include the 
literature of the subject. But if they have only 
taken trouble enough to find or suppose they find 
that certain authors say certain things, without 
further satisfying themselves how reliable such 
statements are, their own opinion must be of very 
moderate value, and whether correct or incorrect, 
cannot be fortified before a jury by statements of 
what those authors hold on the subject. The jury 
are only concerned to know what the witness thinks, 
and what capacity and judgment he shows to make 
his opinion worthy of respect.'" 

§ 20. Competency of Experts Whose Knowledgre 
is I>eriTe«L from ObserTation Outside Their Special 
Caiiinsr. — Mere opportunities for special observation 
have been held insufficient in some cases to render 
a witness competent to testify as an expert. For 
example, a painter by trade who had worked at his 
calling for twenty years, and who swore that his ex- 
perience as a painter had enabled him to judge of 
the quality and character of carpenter work and 
material, was held incompetent to testify as an ex- 
pert respecting the workman-like manner in which 
the carpenter and joiner work was done upon a 
house on which he did the painting.' So a miller 

i People V. Millard, 53 Mich. 63, 76. 

* Kilboarne v. Jennings, 38 Iowa, 533. "A painter, in virtue of the 
special knowledge and skill acquired in his employment of painting,'* 



52 EXPERT TESTIMONY. 

was held not a competent witness to give an opinion 
as to the skillfulness of work done on a mill, that 
the construction of its machinery was improper, 
although a millwright would be a competent witness 
in such an inquiry/ And where the investigation 
relates to the quality of iron, it was held that the 
witness must show himself to be skilled in the busi- 
ness of manufacturing iron, and that '*a clerk or 
book-keeper, although he might have been long 
employed in an iron foundry, and might have seen 
the business, was not competent to testify as an ex- 
pert, unless he could show by his testimony that he 
had given the subject of examining and testing iron 
special attention and study, and had experience in 
that art. If he relied upon the decision of others, or 
upon the marks on the iron, he was not an expert." * 
But in a case in New York, a person who had 
been a carpenter and house joiner by trade for 
twenty- two years, and had worked some on stone 
buildings, some on brick and some on cobble-stone, 
but mostly on wooden buildings, was held compe- 

said the court, <^couId learn nothing of the proper mode of framing to- 
gether materials for the construction of a huilding. Whatever knowl- 
edge he acquires respecting carpenter and joiner work, must be gained 
from mere observation and attention. But any observant man, whose 
attention has been specially directed to buildings in process of erection 
and erected, could have equal means of knowledge, and could be equally 
qualified to give an opinion. But the opinion of a witness is not to be 
received merely because he has had some experience, or greater oppor- 
tunity of observation than others, unless the experience relates to mat- 
ters of skill and science. It is true the witness in question could tell 
whether a joint was a close or an open one. And any observant person, 
without special instruction or skill, could do as much. Bnt it is apparent 
that, to admit as an expert every person who had availed himstflf of an 
opportunity to observe a structure, and who had acquired a knowledge 
as to the closeness of the joints, would overturn entirely the rule re- 
specting expert testimony." 

1 Walker v. Fields, 28 Ga. 237. 

« Pope V. Filley, 9 Fed. Bep. 65, 66. 



COMPETENCY OF THE EXPERT. 53 

tent to express an opinion whether a wall was worth 
covering. The court thought he was as competent to 
express such an opinion as a mason would have been/ 
^ 21. Upon what the Competency of the Expert 
Bests. — The right of a witness to give expert testi- 
mony depends, therefore, upon either the actual 
experience of the witness with respect to the subject 
under investigation, or his previous study and 
scientific research concerning the same, and some- 
times on both combined.' Certainly, one who has 
neither made a special study of the subject on which 
his opinion is desired, nor had any experience in 
relation to the same, cannot be allowed to give ex- 
pert testimony concerning it, although the subject 
under investigation relates to science and the wit- 
ness is a scientific man.' Of course, no exact test 
can be laid down by which one can determine with 
mathematical precision how much skill or experi- 
ence a witness must possess to qualify him to testify 
as an expert.* That question rests within the fair 
discretion of the court whose duty it is to decide 
whether the experience or study of the witness has 
been such as to make his opinions of any value.* 
The witness should have at least a general knowl- 
edge of the matter about which he is called to tes- 
tify,' but it is by no means necessary that he should 
possess the highest degree of skill to qualify him to 
testify as an expert.^ 

1 Pullman v. Corning, 9 N. Y. 93. 

« Citizens' Gas Light Co. v. O'Brien, 118 m. 174, 181. 

< See Citizens' Gas Light Co. v. O'Brien, 15 Brad. (111.) 400. 

* Fcgery v. First National Bank, 66 Ind. 123, 125. 
3 McEwen v. Bigelow, 40 Mich. 215, 217. 

• Heacock v. The Stote, 13 Texas Ot. of App. 97, 132. 

7 Yates V. Yates, 76 N. C. 142, 149; Hyde v. Woolfolk, 1 Iowa, 159, 
166; State v. Hinkle, 6 Iowa, 159, 166. 



54 EXPERT TESTIMONY. 

^ 22. The Competency of the Witness as a Sub- 
ject of Review in an Appellate Court. — It being a 
question of fact to be decided by the trial judge 
whether a witness offered as an expert has the qual- 
ifications necessary to entitle him to testify in that 
capacity, the question arises whether the decision 
of the matter by the trial court can be reviewed in an 
appellate court. The courts in some instances appear 
to have laid down the principle unqualifiedly, that 
the question whether a witness possesses the neces- 
sary qualifications of an expert is a question of fact 
purely within the province and discretion of the 
trial judge, and that his decision concerning the 
matter is not subject to revision in the appellate 
court. ^ But there is not a harmony of opinion on 
the subject. The Supreme Court of Indiana say: 
'*Some of the cases go very far upon this point, for 
some of them hold that the decision of the trial 
court is conclusive, but we think the cases which 
hold that where there is no evidence at all tending 
to prove that the witness is qualified to testify as an 
expert, or where there is a palpable abuse of dis- 
cretion, the ruling of the trial court is subject to 
review, are supported by the better reason.'" In 
this expression of opinion we emphatically concur. 
In the Supreme Court of Maine, it is said: * 'Whether 
this witness was qualified to testify as an expert, 
was a question of fact for the presiding judge, and 
his decision of such a question is usually final. 
In extreme cases, where a serious mistake has been 

1 Dole V. Johnson, 50 N. H. 452, 459; Jones v. Tucker, 41 N. H. 546; 
Hammond v. Schiff, 100 N. C. 161; State v. Cole, 94 K. C. 968,964; 
Flynt V. Boldenhamer, 80 N. C. 205; Wright y. William's Estate, 47 
Vt. 222, 232. 

« City of Fort Wayne v. Coombs, 107 Ind. 75, 85. 



COMPETENCY OF WITNESS. 55 

committed through some accident, inadvertence, or 
misconception, his action may be reviewed/'^ And 
in Massachusetts it has been declared that the de- 
cision of this question by the trial court is conclu- 
sive * * unless it appears upon the evidence to have been 
erroneous, or to have been founded upon some error 
in law/'* In the Supreme Court of the United 
States, the decision of the trial judge is said to be 
conclusive ''unless clearly shown to be erroneous in 
matter of law. ' " The Supreme Court of Vermont while 
declaring that the question of competency is a ques- 
tion of fact, the decision of which by the trial court 
"as an inference from evidence is not revisable," 
add: ''An arbitrary ruling without evidence or 
against conclusive showing would leave the question 
of revisability the same as it would stand on sim- 
ilar rulings on other questions of fact/'* In the 
Supreme Court of Pennsylvania it is said that the 
matter rests "very much in the sound discretion of 
the court, and we never reverse in such cases unless 
the discretion has been grossly abused."* There are 
other States in which appellate courts will review 
the trial court's decision.' 



1 Fayette v. ChestervlUe, 77 Me. 28,33 a886). Andseemggins v. 
Downs, 76 Me. 346, 347 (ISSS). 

• Perkins v. Stickney, 132 Mass. 217, 218 (1882) , citing Xunes v. Perry, 
113 Mass. 274, 276, and Commonwealth y. Sturtivant, 117 Mass. 122. And 
see Lowell y. Coanty Commissioners, 146 Mass. 403. 

> Stillwell Mnfg. Co. v. Phelps, 130 U. S. 520, 527. 
^Bemis y. Railroad Co., 68 Vt. 636, 641 (1886). And see Wright 
y. WilUams' Estate, 47 Vt. 222, 233. 

• Allen's Appeal, d9 Pa. St. 196, 202 (1881). See also Sorg y. First Ger- 
man Congregation, 63 Pa. St. 156. 

• See Citizens' Gas Light Co. y. O'Brien, 16 Brad. (Ul.) 400, 411 ; Hea- 
cock y. The Stote, 13 Texas Ct. of App. 97, 132. In State y. Cob, 63 
Iowa, 695, 699, the court say : "This matter of passing upon expert qual- 
ifloations is not one that is subject to yery well defined rules. There 
must, of course, be some eyidence of the existence of the qualifications; 



66 EXPERT TESTIMONY. 

It is evident that it is only in cases where the trial 
court has been cleariy in the wrong in passing- on 
the qualifications of a witness that a case will be re- 
versed for a ruling admitting one to testify as an 
expert, or declining to receive his testimony as such. 
The trial court has the witness before it and has an 
opportunity of estimating his mental caliber which 
the appellate court does not enjoy, and a personal 
examination of the witness ordinarily aflFords the 
most satisfactory method of determining his ability 
or disability to testify in the character of an expert/ 
It is said that if the witnesses offered had any claim 
to the character of experts the appellate court will 
not reverse on the ground that the experience of the 
witnesses was not sufficiently special. * 

Assuming that an appellate court has the power to 
review in a proper case the decision by the trial court 
of this question of competency it will not reverse 
the ruling of that court unless such ruling was 
against the evidence, or wholly or mainly with- 
out support in the facts which appear.' In the ab- 
sence of a contrary statement in the bill of exceptions, 
the presumption would be that the trial court was 
satisfied after proper inquiry as to the competency 
of the witness, and the mere statement that an ob- 
jection was made to the witness on the ground that 
he had not been shown qualified to testify as an 

but beyond that it must be left somewhat in the discretion of the court. 
In a criminal case of the gravity of this one, the discretion must, to be 
sure, be exercised cautiously; and if the appellate court should be sat- 
isfied that it had not been done, and should apprehend that the defend- 
ant had suffered injustice, it would doubtless be justified in reversing.^' 
And see Southern Life Ins. Co. v. Wilkinson, 53 Oa. 535; Wiggins v. 
Wallace, 19 Barb. (N. Y.) 338. 

1 Broquet v. Tripp, 36 Kan. 700. 

s Delaware, etc. Steam Towboat Co. v. Starrs, 69 Pa. St. 36. 

8 Slocovich V. Orient Mut. Ins. Co., 108 N. Y. 56, 62, (1888). 



COMPETENCY OF WITNESS. 57 

expert, would not be suflficient to rebut such a pre- 
sumption.* It must be borne in mind that a party 
seeking to have the decision of the trial court re- 
viewed should show in his bill of exceptions, or in 
some proper manner, that no examination was made 
to test the qualification of the witness, or if made 
should set forth the evidence that the want of qual- 
ification may affirmatively appear,* and the entire 
evidence upon that point should be incorporated 
in the bill of exceptions.' An appellate court 
cannot say that it was error to exclude the opinion 
of a witness offered as an expert, when the excep- 
tions fail to show that the trial court decided as a 
preliminary question that the witness was qualified 
as an expert.* If an exception is taken to the ex- 
clusion of testimony which could only come from an 
expert it should affirmatively appear that the person 
who was asked for the opinion was an expert.* An 
objection to the decision of the trial court on the 
question of the competency of the witness must 
have been taken at the time of the trial, as it cannot 
be raised in the first instance in the court above.* 

^ 23. How the Objection to the Competency of 
the Witness Should be Taken. — ^When the opinion 
of a witness is called for before his qualifications to 
testify as an expert have been shown, counsel, unless 
they are willing to waive the question of the com- 

1 Hardin v. Sparks, 70 Texas, 429, (1888). 

s Hardin v. Sparks, 70 Texas, 429, (1888) ; Campbell y. Russell, 139 
Mass. 278, (1885). 

S€k>ssler v. Eagle Sugar Refinery, 103 Mass. 331, 335; Quinsigamond 
Bank v. Hobbs, 11 Gray, 250, 258; Marcy.v. Barnes, 16 Gray, 161; Sarle 
V. Arnold, 7 R. I. 686. 

* Carpenter v. Corinth, 58 Vt. 214, (1885). 

B Higgins V. Downs, 75 Me. 346, (1883). 

« Hand y. Brookline, 126 Mass. 324. 



58 EXPERT TESTIMONY. 

petency of the witness or to take their chance of 
showing a want of competency on the cross-exami- 
nation, should state the specific ground of their ob- 
jection to the testimony of the witness, and not con- 
tent themselves with a mere general objection. A 
general objection is of no avail in such a case, and 
cannot be considered as applying to the competency 
of a witness to give expert testimony.^ A general 
objection failing to specify that no proper founda- 
tion has been laid for the admission of evidence 
otherwise competent is not available as a ground of 
error.' 

^ 24. Competency as Dependent on Whether the 
Expert has Heard the Testimony. — An expert either 
states general facts, which are the results of scientific 
knowledge or general skill, or else he testifies to 
opinions.* If he testifies to opinions, his testimony 
is founded either on personal knowledge of the facts, 
or else it is based on facts shown by the testimony 
of others.* If his opinion is desired on facts testi- 
fied to by other witnesses, it should appear that he 
has reliable information or knowledge of what those 
facts are.* But even in such cases it is not always 
necessary that the witness should have been present, 
and heard all the evidence.' 

It is sufficient if it appears that he has heard all 
the testimony which is material to the subject of 

^ See Stevens v. BreBnan, 79 N. Y. 255, 259; Amadon v. IngersoU, d4 
Hun (N. Y.), 134; Schwander v. Birge, 46 Hun (N. Y.), 66, 68; Case v. 
Perew, 46 Hun (N. Y.), 57,62. 

» Cushman v. U. 8. Life Ins. Co., 70 N. Y. 72, 80. 

> Emerson y. Lowell Gkis Light Co., 6 Allen, 146. 

^ Spear v. Richardson, 37 K. H. 23,34; Livingston v. Commonwealth, 
14 Gratt. (Va,) 592; Walker v. Fields, 28 Oa. 237. 

Heald v. Thing, 45 Me. 392; Lake v. People, 12 X. Y. 358; S. C, 1 
Parker Cr. Cas. 495; People v. Thurston, 2 Parker Cr. Cas. 49. 

• MUler V. Smith, 112 Mass. 470, 475. 



COMPETENCY OF EXPERTS. 59 

inquiry/ And he should have heard the evidence as 
actually given, and not as it appears on the minutes 
of the testimony as taken by counsel. When an 
expert had not heard the evidence as given on ""the 
trial, and counsel offered to read to him their min- 
utes of the testimony, it was held that this could 
not be allowed.* Of course, the necessity for the 
witness to have heard the testimony does not exist 
if the whole of the evidence is embraced in a hypo- 
thetical question submitted to him.' 

§ 25. Competency of Experts in Particular Cases. 
— ^We have thus confined our attention to the gen- 
eral principles relating to the competency of experts, 
and have left the consideration of the competency 
of experts in particular cases to be considered in 
subsequent chapters. For instance, the competency 
of physicians and surgeons to testify as experts, is 
considered in the chapter relating to expert testimony 
in medicine, surgery and chemistry, and the qualifi- 
cations of experts in handwriting in the chapter 
relating to expert testimony in handwriting. 

1 Carpenter v. Blake, 2 LanB. (N. Y.) 206; State y. Medicott, 9 Kan. 
289; Ricb v. Jones, 9 Cosh. (Mass.) 337; Hand v. Brookline, 126 Mass. 
324; Davis v. State, 38 Md. 16, 40; State v. Hayden, 51 Yt. 296. 

» Thayer v. Davis, 38 Yt. 163. 

> See Webb v. State, 9 Texas Ct. of App. 490 



60 EXPERT TESTIMONY. 



CHAPTER III. 

THE EXAMINATION OF EXPERT WITNESSES. 

SECTION. 

26. Mode of Examination of Expert Witnesses. 

27. The Hypothetical Question. 

28. The Form of the Hypothetical Qaestion. 

29. The Form of the Hypothetical Question— The Subject Continued. 

30. The Hypothetical Question is not to be Based on the Opinions of 

Other Experts. 

31. When Questions Need not be Hypothetical. 

32. Instructions to the Jury Concerning Testimony Based on Hypo- 

thetical Questions. 

33. The Hypothetical Question on the Cross-Examination. 

34. Questions to Experts Should not Embrace Questions of Law. 

35. Questions to Experts as to Particular Cases. 

36. An Expert Cannot be Asked for an Opinion on Facts not Stated. 

37. Other Matters Pertaining to the Examination and Cross-Examina- 

tion of Experts. 

38. General Rules Governing the Examination of Witnesses. 

39. Excluding Experts from the Court Room During the Examination 

of Witnesses. 

40. Right of Court to Limit the Number of Expert Witnesses. 

41. By Whom Expert Witnesses are Selected. 

^ 26. Mode of Examination of Expert Witnesses. 

— It being determined by the court, that the sub- 
ject-matter of inquiry is one upon which the opinion 
of experts may properly be received in evidence, 
and that the witness introduced possesses special 
skill, in the subject-matter of inquiry, the examina- 
tion of the witness is next in order, and it becomes 



MODE OP EXAMINATION OF EXPERT WITNESSES. 61 

important that such examination should proceed 
strictly in accordance with the rules which it has 
been found necessary to establish in relation to the 
admission of expert testimony. It is necessary in 
the examination of all such witnesses, that ques- 
tions should be so framed as not to call on the wit- 
ness for a critical review of the testimony given by 
the other witnesses, compelling the expert to draw 
inferences or conclusions of fact from the testimony, 
or to pass on the credibility of the witnesses,* the 
general rule being that an expert should not be 
asked a question in such a manner as to cover the 
very question to be submitted to the jury.' As ex- 
pressed in one of the opinions, ''a question should 
not be so framed as to permit the witness to roam 
through the evidence for himself, and gather the 
facts as he may consider them to be proved, and 
then state his conclusions concerning them.'" 

1 Jameson y. Drinkald, 12 Moore, 148 ; Guiterman v. Liverpool, etc. 
steamship Co., 83 N. Y. 358, 366; United States v. McGloin, 1 Curtis C. 
C. 1, 9; Buxton v. Somerset Potters Works, 121 Mass. 446; Reynolds v. 
Robinson, 64 K. Y. 589; Phillips v. Starr, 26 Iowa, 351 ; Van Zandt v. 
Mutual Benefit Life Ins. Co., 55 N. Y. 179; Dexter v. Hall, 15 Wall. 9; 
Cincinnati, etc. Mutual Ins. Co. v. May, 20 Ohio, 211, 224; Rush v. 
Megee, 36 Ind. 1 ; Elliott y. Russell, 92 Ind. 526. <'Le Medicin ne doit 
jamais donner un avis hur le difficulte meme, que les juris ont a 
resoudre; par exemple, sur le point de savoir si Taccuse est irresponsa- 
ble, mais simplement faire connaitre son opinion pur Texistence ou le 
degre dMntiuence de certain faits.*^ Dr. Mittermaier's Traite de la 
Procedure Criminelle. 

'Chicago & Alton R. R. Co. v. Springfield & Northwestern R. R. Co., 
67 111. 142; Tingley v. Cowglll, 48 Mo. 294; Muldownt*y v. Illinois 
Central R. R. Co., 39 Iowa, 615; Pelamourges v. Clark, 9 Iowa, 1, 16; 
mil V. Portland, etc. R. R. Co., 55 Me. 444; Keller v. N. Y. Central R. 
R. Co., 2 Abbott's App. Decls. (if. Y.) 480, 490; Clark v. Detroit Loco- 
motive Works, 32 Mich. 348; State v. Cole, 94 N. C. 958; Baltimore, 
etc. Turnpike Co. v. Cassell, 66 Md. 419; Henry v. Hall, 13 111. App. 
343; Smith v. Hlckenbottom, 57 Iowa, 733; Boor v. Lowrey, 103 Ind. 
480. 

8 Dolz V. Morris, 17 N. Y. Sup. Ct. 202. 



62 EXPERT TESTIMONY. 

And the language in another case is as follows: 
*'The questions to him must be so shaped as to give 
him no occasion to mentally draw his own conclu- 
sions from the whole evidence, or a part thereof, 
and from the conclusion so drawn, express his opin- 
ion, or to decide as to the weight of evidence or the 
credibility of witnesses; and his answers must be 
such as not to involve any such conclusions so 
drawn, or any opinion of the expert, as to the weight 
of the evidence or the credibility of the witnesses.'*^ 
**The object of all questions to experts,'' says the 
Supreme Court of Massachusetts, ''should be to ob- 
tain their opinion as to the matter of skill or science 
which is in controversy, and at the same time ' to 
exclude their opinions as to the effect of the evi- 
dence in establishing controverted facts. Questions 
adapted to this end may be in a great variety of 
forms. If they require the witness to draw a con- 
clusion of fact, they should be excluded." • It is 
not the duty of an expert to reconcile conflicting 
evidence.' In illustration of this principle, that an 
expert cannot be asked an opinion which requires 
him to pass upon the evidence, the following ques- 
tion may be cited as having been held to be an im- 
proper one, for the reason that it practically put the 
expert in the place of the jury: "From the facts and 
circumstances stated by previous witnesses, and 
from those testified to by still other witnesses, relat- 
ing to the homicide, and from defendant's conduct 
on the trial, is it your opinion that the defendant 



1 McMechen v. McMechen, 17 W. Va. 683, 6»4; Kerr v. Lunsford, 31 
W. Va. 659, 672. 
« Hunt V. Lowell Gas Light Co., 8 Gray, 169. 
« Lunlng V. State, 1 Chandler (Wis.), 178. 



MODE OP EXAMINATION OF EXPERT WITNESSES. 63 

was sane or insane when he committed the act?"^ 
And so where the question asked was: **What is 
your opinion based upon the testimony adduced at 
this trial, as to the sanity or insanity of the defend- 
ant at or before the time of the alleged shooting?'' * 
The truth of the testimony not being admitted, the 
question asked involved the determination of the 
truth of that testimony by the expert. It was 
therefore improper. For the same reason an engi- 
neer has not been allowed to answer the question 
whether **the plaintiff in oiling that pulley could 
have been injured unless he was careless.'' ' So it 
has been held improper to ask: **In your opinion 
as a canal boatman, did Mr. C. in any way omit or 
neglect to do anything which he might have done 
to save his boat?" He could be asked whether cer- 
tain acts assumed to be proven were seaman-like 
and proper, but he could not be allowed to express 
an opinion as to what was or was not done as a 
matter of fact.* And in an action against a physi- 
cian for neglect and non-attendance in a case of 
frost bite, it has been held that a medical witness, 
to whom the evidence was read, could not be asked: 
**From the evidence before the coiirt, to what do 
you ascribe the loss of the plaintiff's fingers and 
toes?" * A further illustration may be found in the 
case cited below.* 

» State V. Felter, 25 Iowa, 67, 74. 

3 Reed y. The State, 62 Miss. 405; and so in Bennett v. State, 57 Wis. 
69. 

< Buxton y. Somerset Potters Works, 124 Mass. 446. 

^ Carpenter v. Eastern Transportation Co., 71 K. T. 574. 

* Key V. Thompson, 2 Hannay (N. B.), 224. 

^ la State v. Bowman, 78 N. C. 509, 511, the following was the form 
of examination: '^Haveyou heard the statements of the witness as to 
the circnmstanees immediately preceding her being taken sick, the 



64 , EXPERT TESTIMONY. 

§ 27. The Hypothetical Question. — As an expert 
is not allowed to draw inferences or conclusions of 
fact from the evidence, his opinion should be asked 
upon a hypothetical statement'of facts. ^ Mr. Chief 
Justice Shaw well stated the law as follows: *'In 
order to obtain the opinion of a witness on matters 
not depending upon general knowledge, but on facts 
not testified of by himself, one of two modes is pur- 
sued: either the witness is present and hears all the 
testimony, or the testimony is summed up in the 
question put to him; and in either case the question 
is put to him hypothetically, whether, if certain 



appearance of the body immediately alter death, its appearance subse- 
quent and before interment, the condition of her limbs and members, 
tlie account given by the accused of her manner of death, her asking to 
have her feet uncrossed, and the manner in which she gripped him and 
her child, and have you heard the testimony of Mr. Redd as to his 
analysis and its results, and from them can you as a pliysician form an 
opinion as to this cause of her death?'' 

"The witness answered *Yes.' " 

"In giving answer, do you exclude from your consideration the evi- 
dence of other circumstances in the nature of moral evidence in the 
case?" 

"The witness answered *I do.' " 

"What in yonr opinion was the cause of her death?" 

"The witness answered, '1 believe it was strychnine.' " 

The supreme court held that this evidence should not have been re- 
ceived, as it put the expert in the place of the jury, and required him 
to pass on the evidence. 

1 Strong V. Kean,13 Irish Law R. 93; Polk v. State, 36 Ark. 117, 134, 
125; Spear v. Richardson, 37 N. H. 23; Teft v. Wilcox, 6 Kan. 46; 
Pidcock V. Potter, 68 Pa. St. 342; Woodbury v. Obear, 7 Gray (Mass.), 
467: Williams v. Brown, 28 Ohio St. 647, 651; Moore v. State, 17 Ohio 
St. 526; Jerry V. Townshend, 9Md. 145; Baltimore & Ohio Railroad Co. 
V. Thompson, 10 Md. 76; Walker v. Rogers, 24 Md. 237; Page v. State, 
61 Ala. 16; Willey v. Portsmouth, 35 N. H. 303; Bishop v. Spining, 38 
lad. 143; Dexter v. Hall, 15 Wall. 9; Ayers v. Water Commissioners, 
29 N. Y. Sup. Ct. 297; Guiterman v. Liverpool, etc. Steamship Co., 83 
N. Y. 368, 366; Hunt v. State, 9 Tex. Ct. of App. 166; Hoard v. Peck, 66 
Barb. (T!^. Y.) 202; City of Decatur v. Fisher, 63 Dl. 241; PhUlips v. 
Starr, 26 Iowa, 349. 



THE HYPOTHETICAL QUESTION. 65 

facts testified of are true he can form an opinion, 
and what that opinion is."* 

Counsel, in framing the hypothetical question, 
may base it upon the hypothesis of the truth of all* 
the evidence, or on an -hypothesis especially framed 
on certain facts assumed to be proved for the pur- 
pose of the inquiry.* The question is not improper 
simply because it includes only a part of the facts 
in. evidence.* And if framed on the assumption of 
certain facts, counsel may assume the facts in ac- 
cordance with his theory of them, it not being 
essential that he should state the facts as they actu- 
ally exist.* 

'*The claim is,'' says Chief Justice Folger, *'that 
a hypothetical question may not be put to an ex- 
pert, unless it states the facts as they exist. It is 
manifest, if this is the rule, that in a trial where 
there is a dispute as to the facts, which can be set- 
tled only by the jury, there would be no room for a 
hypothetical question. The very meaning of the 
word is that it supposes, assumes something for the 
time being. Each side, in an issue of fact, has its 
theory of what is the true state of the facts, and 
assumes that it can prove it to be so to the satisfac- 
tion of the jury, and so assuming, shapes hypothet- 
ical questions to experts accordingly. And such is 
the correct practice."* It is, therefore, the privi- 
lege of counsel to assume any state of facts which 

1 DickenflOD v. Fitchburg, 13 Gray (Mase.), 546, 556. 

s GoUieb y. Hartman, 3 Colo. 53; Williams v. SUte, 64 Md. 384. 

B Stearns v. Field, 90 K. T. 640; Turnbull v. Richardson, 69 Mich. 413. 

* Cowley y. People, 83 N. Y. 464; Dillebar y. Home Life Ins. Co., 87 
N. Y. 79 ; Loyelady y. State, 14 Tex. Ct. of App. 345 ; Qainn y. Higgins, 
63 Wis. 664; Kerr y. Lunsford, 31 W. Ya. 660. 

^ Cowley y. People, 83 N. Y. 464. And see to the same effect Dayis 

(5) 



66 EXPERT TESTIMONY. 

there is any evidence tending to prove, and to have 
the opinion of the expert based on the facts as- 
sumed.* The fact that counsel make an error in 
-their assumption, does not render the question ob- 
jectionable, if it is within the possible or probable 
range of the evidence.' But the testimony should 
tend to establish the facts embraced in the question.* 
A court, however, has no right to reject a question 
which counsel claims embraces facts which the evi- 
dence tends to prove, simply because in its opinion 
the facts assumed are not established by a pre- 
ponderance of the evidence. The question should 
be allowed if there is any evidence tending to prove 
the facts assumed. For what facts are proved in a 
case, when there is any evidence tending to prove 
them, is a matter for the jury and not for the court.* 
But if the hypothetical question is clearly exagger- 



V. state, 35 Ind. 496; Guetig v. State, 66 Ind. 94; Filer v. 1^. Y. Central 
B. R. Co., 49 N. Y. 42; Carpenter v. Blake, 2 Lang. (K. Y'.) 206. 

1 Peterson v. Chicago, etc. R. R. Co., 38 Minn. 511; Stearns v. Field, 
90 N. Y. 640; Quinn v. mgginp, 63 Wis. 664; Leache v. State, 22 Tex. 
Ot. of App. 279; Louisville, etc. R. R. Co. v. Falvey, 104 Ind. 409, 412; 
Goodwin y. The State, 96 Ind. 550, 555; Conway v. The State, 118 Ind. 
490; Kerr y. Lnnsford, 31 W. Va. 659,672; People v. Goldenson, 76 
Cal. 328. 

« Harnett v. Garvey, 66 N. Y. 641 ; Nave v. Tucker, 70 Ind. 15 ; Steams 
V. Field, 90 N. Y. 640. 

^ Bomgardner v. Andrews, 56 Iowa, 638 ; Hathaway^s Admr. v. National 
Life Ins. Co., 48 Vt. 335; Hurst v. The C. R. I. & P. R. Co., 49 Iowa, 
76; Gueting v. State, 66 Ind. 94; Daniells v. Aldrich, 42 Mich. 58; Dil- 
lebar v. Home Life Ins. Co., 87 N. Y. 79; State v. Cross, 68 Iowa, 180; 
In re Will of Norman, 72 Iowa, 84; Ballard v. Nebraska, 19 Neb. 609; 
State V. Hanley, 34 Minn. 430; People v. Angsbury, 97 N. Y. 501 ; State v. 
Anderson, 10 Oreg. 448; Meeker v. Meeker, 74 Iowa, 352; 'Woolner v. 
Spalding, 65 Miss. 204; Bomgardner v. Andrews, 55 Ind. 638; Bathrick 
V. Detroit Post and Tribune Co., 50 Mich. 643; People v. Millard, 53 
Mich. 64; O'Hara v. Wells, 14 Neb. 403; Morrill v. Tegarden, 19 Neb 
d34; In re Will of Ames, 51 Iowa, 596. 

* Qulnn V. Higgins, 63 Wis. 664; Louisville, etc. R. R. Co. v. Falvey 
104 Ind. 409, 413. 



THE HYPOTHETICAL QUESTION. 67 

ated and unwarranted by any testimony in the case, 
an objection to it will be sustained/ To allow on 
the direct examination an hypothetical question to 
be put which assumes a state of facts not warranted 
by the testimony is error,' and counsel will never 
be permitted on the direct examination to embrace 
in an hypothetical question anything which the 
testimony does not either prove or tend to prove.' 
For instance, in a case involving the value to the 
plaintiflF of a contract which the defendant had 
broken, an hypothetical question to an expert which 
did not accurately state the terms of the contract 
would be inadmissible.* A question based on an 
assumption which the evidence neither proves nor 
tends to prove is misleading. But to lay the 
foundation for exceptions on the ground that the 
hypothetical question embraces facts not in evi- 
dence, the attention of the trial judge should be 
called to the specific objection, in order that he may 
determine, as he must in the first instance, whether 
there is sufficient evidence tending to prove the 
facts stated to authorize the question.* For the 
rule is a general one, that objections to testimony 
should be specifically stated to the trial court, and 
that only such objections as are so stated can be 
-considered on appeal.* When the hypothetical 

1 WlUiamfrv. Brown, 28 Ohio St. 547, 551, 552; Muldowney v. Illinois 
Central R. B. Co., 39 Iowa, 616; Dickie v. Van Bleck, 5 Redf. (N. Y.) 
284,294; Haish v. Payson, 107 Dl. 365, where the hypothetical queatioti 
covers two pages and a hall and was condemned as assuming facts not 
within the range of legitimate evidence. Woolner v. Spalding, 65 Miss. 
^04. 

< Reber v. Henlng, 115 Pa. St. 599; People v. HaU, 48 Mich. 482, 489. 

s Eraser v. Jennison, 42 Mich. 206, 227. 

4 Jewett V. Brooks, 134 Mass. 505. 

* Powers V. Mitchell, 77 Me. 361. 

« Louisville, etc. R. R. Co. v. Falvey, 104 Ind. 409, 415. 



68 EXPERT TESTIMONY. 

question has been improperly allowed, because not 
including certain facts which should have been em- 
braced in it, the error is cured if the cross-examina- 
tion has supplied the omission and placed before 
the witness all the facts necessary to the formation 
of an opinion/ 

We have stated the rule to be that counsel in 
framing the hypothetical question can assume any 
state of facts which there is any evidence tending to 
prove, but that it is error on the direct examination 
to allow a hypothetical question to be put which 
assumes a state of facts not warranted by the testi- 
mony. We would not, however, be understood as 
saying that a question should not be allowed which 
assumes facts which the testimony already in the 
case neither proves nor tends to prove, provided 
counsel in putting the question declare that they 
will by subsequent testimony supply the necessary 
evidence to warrant the facts so assumed.* When 
this course is pursued if such testimony is not 
afterwards given it would be the duty of the court 
to strike out the answer to the question. 

^ 28. The Form of the Hypothetical Question. — 
The doctrine as to the proper form of the hypothet- 
ical question, has been set forth by the Supreme 
Court of Vermont in an opinion, from which we • 
quote as follows: ''A study of the various cases will 
show that the form of the question is modified and 
shaped by the courts; whether it states facts, or 
puts facts hypothetically, or refers to the testimony * 
of witnesses as being true, so as to give the witness 
no occasion or opportunity to decide upon the evi- 

^ Van Hoesen v. Cameron, 54 Mich. 609. 

> People V. SessioDS, 58 Mich. 594, 599; Turnbull v. Richardson, 60 
Mich. 400, 413. 



FORM OF THE HYPOTHETICAL QUESTION. 69 

dence, or mingle his own opinion of the facts, as 
shown by the evidence, with the facts upon which 
he is to express a professional opinion. This is the 
important point, and to secure this various forms 
of inquiry have been adopted. Hypothetical ques- 
tions may be so put as to require the witness to de- 
cide upon the evidence, to determine which side 
preponderates, and to find conclusions from the 
evidence, in order to reconcile conflicting facts. 
Such questions, though hypothetical, are as clearly 
improper as if they directly sought the opinion of 
the witness on th§ merits of the case. Hence, in 
framing such questions, care should be taken not to 
involve so much, or so many facts in them, that the 
witness will be obliged in his own mind to settle other 
disputed facts, in order to give his answer. * * In 
some cases, all the facts bearing on the issue might 
be summed up in a single question. But when 
facts on one side conflict with facts on the other, 
they ought not to be incorporated into one question,, 
but the attention of the witness should be called to 
their opposing tendencies, and if his skill or knowl- 
edge can furnish the explanation which harmonizes 
them, he is at liberty to state it. Then the jury 
can know all the facts and grounds on which the 
opinion is based." ^ The length of a hypothetical 
statement made to a witness must be left in a great 
degree to the court's discretion, its length neces- 
.sarily depending on the simple or complicated char- 
acter of the transactions recited, and the number of 
particulars which must be considered for the forma- 
tion of the opinion desired.* 

« FairchUd v. Bascomb, 35 Vt. 415. 

« Foreythe v. Doolittle, 120 U. S. 73, 78 (1886). 



70 EXPERT TESTIMONY. 

It is important in any case that the jury should 
distinctly understand what are the exact facts upon 
which the expert bases his opinion, for the value of 
that opinion depends upon whether or not it is 
based on false assumptions or on existing facts. 
Where the evidence is at all voluminous, and where 
it is not entirely harmonious, it is improper to per- 
mit a question to be put jvhich requires the expert 
to give an opinion upon his memory of what the 
evidence was, and upon his conclusions as to what 
the evidence proved.^ For this reason it has been 
held error to permit an expert witness to answer 
this question: **What, in your opinion, would all 
the facts as sworn to by the several witnesses, if 
true, indicate as to the mental condition of the 
prisoner at the time of the commission of the of- 
fense?'" The objections to the question are that 
the witness may understand the evidence to be 
radically different from what the jurors hearing the 
testimonv understand it, and that it asks for an 
opinion based on the memory of the witness as to 
what the evidence was, and upon his conclusions as 
to what the evidence established. It has, however, 
been held proper to ask an expert who had heard 
the evidence of a single witness his opinion * 'sup- 
posing the testimony of the witness to be truthful,'' 
it not appearing that there had been anything in 
the testimony of the witness which was contradictory, 
or from which different inferences might properly 
be drawn.' And in a case in New York, where 



iHHgadorn v. Conn. Mut. Life Ins. Co., 22 Hun (N. Y.), 249, 252 
(1880). 
« Bennett v. State, 57 Wis. 69 (1883). 
8 Wright V. Hardy, 22 Wis. 34b. 



FORM OF THE HYPOTHETICAL QUESTION. 71 

there was a single definite statement by a witness 
of services performed, the Court of Appeals sustained 
a question which in substance was: * 'Assuming 
that the services rendered were as described by- 
plaintiff, what were they worth?'' * Even in cases 
where more than one witness has testified, if there 
is no conflict in the evidence, and if the testimony 
is not voluminous,' a court may in its discretion al- 
low the counsel to put the question in the above 
form without any recapitulation of the evidence.* 
But courts should exercise caution in allowing 
questions to be thus put to the witness. To prop- 
erly form an opinion the witness should have full 
information as to the ascertained or supposed state 
of facts upon which his opinion is based, and ordi- 
narily should not be left to form an opinion on such 
facts as he can recollect.' And the jury to properly 
estimate his opinion should have the means of 
knowing exactly on what his opinion is based. The 
jury should know on what basis of actual evidence 
on the facts shown by the witnesses who were not 
experts, the experts themselves testified.* 

1 McCollum V. Seward, 62 N. Y. 316. See the explanation of this case 
In Hagadorn v. Conn. Mut. Life Ins. Co., 22 Hun (X. Y.)i 249, 252. 

> State V. Lautenschlager, 22 Minn. 521; Getchell v. Hill, 21 Minn. 
464; Storer's Will, 28 Minn. 9 (1881). In a caae in North Caroliaa the 
following was sustained : **If the jury find tl^ symptoms were as testified 
to hy Dr. Arnold and A. M. Wicker, and the conditions of the body after 
death, as described by Mrs. Annie McGilvary and Mr. Evander McGil- 
vary" (both of whom had given evidence on the pointy *'and if the jury 
should also find that strychnia was found in the stomach of deceased 
after death, as testified by the chemist, Dr. Hinsdale, can you say what 
produced the death ?'^ State v. Cole, 94 N. C. 958 (1886). And see 
Gates V. Fleischer* 67 Wis. 504. 

« Guiterman v. Liverpool, etc. Steamship Co., 83 N. Y. 358, 365 (1881) ; 
Hagadorn v. Conn. Mut. Life Ins. Co., 22 Hun, 251; Elliott v. 
Bussell, 92 Ind. 526, 530 (1883) ; Bums v. Barenfield, 84 Ind. 43, 48 
(1882) ; Craig v. Noblesville, etc. R. R. Co., 98 Ind. 109. 

* People V. Millard, 53 Mich. 63, 75. 



72 EXPERT TESTIMONY. 

$ 29. The Form of the Hypothetical Question — 
The Subject Continued. — rit is not always necessary 
that a hypothetical question should be asked in a 
formal manner. Where a medical expert had read 
the deposition of the plaintijff, detailing minutely 
the injuries and bodily condition claimed to have 
resulted to him from an injury which he related, it 
was held proper to ask him *'from the knowledge 
gained by reading the deposition/' his opinion as 
to the plaintiffs condition at the time the deposition 
was made, and as to the cause of that condition. 
The court said that where an expert heard or read 
the evidence, there was no reason why he might 
not form as correct a judgment based upon such 
evidence, assuming it to be true, as if the same evi- 
dence had been submitted to him in the form of 
hypothetical questions, and that it would be an idle 
and useless ceremony to require evidence with 
which he was already familiar to be repeated to 
him in that form.* 

We have elsewhere said that it is the privilege of 
counsel to assume any state of facts which there is 
any evidence tending to prove, and that the hypo- 
thetical question need not embrace all the facts * 
While this is true in every case where there 
is a conflict in the evidence, yet some of the 
cases hold that if there is no dispute as to the 
facts on which the expert's opinion is desired, it 
is proper to require that the question to the ex- 
pert shall embrace all the facts, and that the witness 
shall take them all into consideration 4n expressing 
his opinion.* And in a case in Texas, where the 

1 Oilman v. Town of Strafford, 50 Vt. 726. 

* See section 27. 

« Davis V. The Slate, 35 Ind. 496. 



FORM OF THE HYPOTHETICAL QUESTION. 73 

opinion of an expert was asked on the testimony of 
one of the witnesses, the Court of Appeals declared 
that an opinion could not be predicated on anything 
less than the entire testimony, whether actually or 
hypothetically presented/ So it has been said 
that the advantage of the usual hypothetical ques- 
tion, including the substance of the whole testimony, 
is so great, that it should only be sacrificed when 
the circumstances of the case plainly call for it.' 
The hypothesis should be clearly stated, so that the 
jury may know with certainty upon precisely what 
state of facts the expert bases his opinion.' We give 
in the note below an illustration of the hypothetical 
question, the question being the one propounded by 
the defense to the experts in the trial of Guiteau,* 
that propounded by the prosecution in the same 
case being of too great length to permit of its re- 
production in these pages. 

1 Webb V. state, 9 Texas Ot. of App. 490. 

« Haggerty v. Brooklyn, etc. R. R. Co., 61 N. Y. 624. * 

> McMecben v. McMechen, 17 W. Va. 683, 698. 

< Q. Assumlog it to be a fact tbat there was a strong hereditary taint 
of insanity in the blood of the prisoner at the bar; also that at about the 
age of thirty-five years his own mind was so much deranged that he 
was a fit subject to be sent to an insane asylum ; also that at different 
times after that date, during the next succeeding five years, he mani- 
fested such decided symptoms of insanity, without simulation, that many 
different persons conversing with him, and observing his conduct, be- 
lieved him to be insane; also that in or about the month of June, 1881, 
at or about the expiration of said term of five years, he became demented 
by the idea that he was inspired of God to remove by death the Presi- 
dent of the United States; also that he acted on what he believed to be 
such inspiration, and as he believed to be in accordance with the Divine 
will in the preparation for, and in the accomplishment of such a pur- 
pose; also that he committed the act of shooting the President under 
what he believed to be a Divine command which he was not at liberty 
to disobey, and which belief made out a conviction which controlled his 
conscience and overpowered his will as to that act, so fhat he could not 
resist the mental pressure upon him ; also that immediately after the 
shooting he appeared calm and as if relieved by the performanace of a 



74 EXPERT TESTIMONY. 

$ 30. The Hypothetical Question is not to be 
Based on the Opinions of other ^Experts. — It seems 
that it is not proper in asking hypothetical questions 
to incorporate in them the opinions of other expert 
witnesses. An opinion must rest on fact, and can- 
not rest in whole or in part upon other opinions. 
This question was recently raised in the Supreme 
Court of Indiana, and the court laid down the law 
as above stated. It said: **An opinion of an expert 
witness cannot be based upon opinions expressed by 
other experts. Facts, and not opinions, must be 
assumed in the questions. If it were otherwise', 
opinions might be built upon opinions of experts 
and the substantial facts driven out of the case." ^ 
And in a case recently decided in Maryland, that 
court said: '*Now, while an expert may give his 
opinion upon facts assumed to have been estab- 
lished, it would be against every rule and principle 
of evidence to allow him to state his opinion upon 
the conclusions and inferences of other witnesses." * 

$ 81. When Questions Need not be Hypothetical* 
— There are exceptions to the general rule requiring 
that on the direct examination the opinions of ex- 
perts should be asked upon an assumed state of 
facts. 

First, A distinction is taken, as already pointed 
out, between cases in which there is a conflict of 
evidence upon the material facts and those in 
which no such conflict exists. In the former class 

great duty; also that there was no other 'adequate motive for the act 
than the conviction that he was executing the Divine will for the good 
of his country — assuming all of these propositions to he true, state 
whether, in vour opinion, the prisoner was sane or insane at the time 
of shooting President Garfield? 

1 Louisville, etc., R. R. Co. v. Falvey, 104 Ind. 409, 421 (1885). 

« Williams v. The State, 64 Md. 384, 394 (1885). 



WHEN NEED NOT BE HYPOTHETICAL. 75 

of cases the question must be framed hypothet- 
ically, but in the latter class there is no such 
necessity/ 

Second, It is not necessary to assume a state of 
facts in those cases in which the expert is personally 
acquainted with the material facts in the case.' 

For instance, a medical witnesa who has no per- 
sonal knowledge of the prisoner cannot be asked: 
** From the facts and circumstances stated by pre- 
vious witnesses, and from those testified to by still 
other witnesses, relating to the homicide, and from 
defendant's conduct on the trial, is it your opinion 
that the defendant was sane or insane when he com- 
mitted the act? . * * * But if a physician 
visits a person, and from actual examination or ob- 
servation becomes accquainted with his mental con- 
dition, he may give an opinion respecting such 
mental condition at that time — that is, he may, ^ 
under such circumstances, state to the jury his 
opinion as to the sanity or insanity of. the person 
at the time when he thus observed or examined 
him.'" So, where a medical expert had made a 
personal examination of the uterus of a deceased 
woman, it was proper to ask him, *'What, in your 
opinion, caused the death of the person from whom 

1 See section 29, and Cincinnati, etc. Mut. Ins. Co. y. May, 20 Ohio, 
211, 224; Tefft v. Wilcox, 6 Kan. 46; Page v. State, 61 Ala. 16; Wood- 
bury V. Obear, 7 Gray, 467; Pidcock v. Potter, 68 Pa. St. 342; Bishop v* 
Spinlng, 38 Ind. 143; Guiterman y. Liverpool, etc. Steamship Co., 83 
N. Y. 358,366; State v. Klinger, 46 Mo. 224; Carpenter v. Blake, 2 
Lans. (N. Y.) 206; Coyle v. Commonwealth, 104 Pa. St. 117; Henry v. 
Hall, 13 111. App. 343. 

« Belief ontaine, etc. R. R. Co. v. Bailey, 11 Ohio St. 333, 337; Trans- 
portation Line v. Hope, 95 U.S. 297,298; Brown v. Huffard, 69 Mo. 
305; Ayres V. Water Commissioners, 29 N. Y. Sup. Ct. 297; Bellinger v. 
N. Y. Cent. R. R. Co., 23 N. Y. 42, 46; Dunham's Appeal, 27 Conn. 193. 

« state V. Felter, 25 Iowa, 67, 74, 75, per Dillon, C. J. 



76 EXPERT TESTIMONY. 

the Uterus was taken?'" And an expert having 
personal knowledge of the facts has been permitted 
to testify that a machine was constructed in a work- 
man-like manner;' that a wall was properly and 
compactly constructed;' that the abutments of a 
bridge were properly and skillfully placed, and suf- 
ficient to discharge water in time of flood;* that an 
article was properly stowed in a vessel/ 

In relation to this subject we cannot do better 
than quote from the opinion of Lord Chief Justice 
TiNDAL, delivered in the House of Lords, in the 
celebrated NcNaghten case: ^*The question lastly 
proposed by your Lordships is: *Can a medical man 
conversant with the disease of insanity, who never 
saw the prisoner previous to the trial, but who was 
present during the whole trial and the examination 
of all the witnesses, be asked his opinion as to the 
state of the prisoner's mind at the time of the com- 
* mission of the alleged crime, or his opinion whether 
the prisoner was conscious at the time of doing the 
act that he was acting contrary to law, or whether 
he was laboring under any and what delusion at the 
time?' In answer thereto, we state to your Lord- 
ships, that we think the medical man, under the 
circumstances supposed, cannot in strictness be 
asked his opinion in the terms above stated, because 
each of those questions involves the determination 
of the truth of the facts deposed to, which it is for 
the jury to decide, and the questions are not mere 



1 State y. Glass, 5 Oreg. 73. 
« Curtis V. Gano, 26 N. Y. 426. 
8 Pullman v. Corning, 9 N. Y. 93. 

* Conhocton Stoue Road Co. v. Buffalo, N. Y. & Erie R. R. Co., ION. 
Y. 523. 
« Price V. Powell, 3 N. Y. 322. 



INSTRUCTIONS TO THE JURY. 77 

questions upon a matter of science, in which case 
such evidence is admissible. But where the facts 
are admitted or not disputed, and the question be- 
comes substantially one of science only, it may be 
convenient to allow the question to be put in that 
general form, though the same cannot be insisted 
on as a matter of right.'' ^ 

It may be remarked as well in this connection as 
any other, that answers to hypothetical questions 
are not objectionable because they include consid- 
erations not referred to in the questions, as consti- 
tuting the basis of the opinion given, and such as 
the testimony tends to prove, and as might properly 
have been included in the questions.' 

^ 82. Instructions to the Jury Concerning^ Testi- 
mony Based on Hypothetical Questions. — But an 
hypothetical question may have been asked and 
answered which it afterwards appears should have 
been excluded. In such cases, the court should 
properly instruct the jury concerning the same. 
The question put to an expert maybe objectionable, 
either because it includes too much or because it 
includes too little. In either case it would seem 
proper that the jury should be instructed to disre- 
gard the opinion based on it.' It is proper 
to instruct the jury to disregard the opinions 
of expert witnesses, based on hypothetical state- 
ments of fact, in case they find the hypothesis 
not in accordance with the facts.* But the 

UOCl. «fcFin. 200, 211. 

* Hatbaway's Admr. v. National Life Ins. Co., 48 Vt. 335. 

s Commonwealth v. Mailing, 2 Allen (Mass.), 296; Gueting v. State, 
66 Ind. 94; Hovey v. Chase, 52 Me. 304; People y. Sessions, 58 Mich. 
594, 599. 

^Loucks V. Chicago, etc. R. B. Co., 31 Minn. 526; Forsyth v. Doo- 
Uttle, 120 U. S. 73, 77 (1886). 



78 EXPERT TESTIMONY. 

court should be careful not to assume the province 
of the jury and pass on the weight of the testimony, 
for if there is any evidence tending to prove the 
facts assumed, it is for the jury to weigh the evi- 
dence, and determine whether the supposed facts 
embraced in the hypothetical question actually cor- 
respond with the facts as proved by the evidence/ 
In a case in Indiana, it has been decided that 
an instruction was substantially correct which 
informed the jury that the facts stated in an hypo- 
thetical case need not necessarily be always fully 
proven to give value to the testimony of an expert.* 
But in a case in the Supreme Court of Michigan, 
Mr. Justice Morse says: *'The answer of an expert 
witness to a hypothetical question must be sup- 
posed to rest on all of the facts stated in such 
question; and, if one of these facts is not found in 
the case, the jury must discard the answer to the 
question, under all of the authorities. And the 
reason of the rule is founded upon principle, 
and is clearly apparent without argument. ' ' ' 
So in another case before the same court, the 
trial court charged the jury that it was im- 
portant for them just as far as they could, to look 
into the evidence and determine whether the facts 
assumed in the hypothetical question actually ex- 
isted, adding, '^because if one fact supposed to be 
true, included in the question, is untrue, not sup- 
ported by the evidence, then the opinion of the 
doctor would be valueless. He gives his opinion 
upon a certain state of facts supposed to -be true, 

I Boardman v. Woodman, 47 N. H. 120, 135; Lake v. The People, 1 
Pjirker'8 Cr. Gas. 495; People v. Thurston, 2 Parker's Cr. Gas. 49. 
s Epps V. The State, 102 Isd. 539. 
> Turnbull v. Richardson, 69 Mich. 400, 420. 



QUESTION ON CROSS-EXAMINATION. 79 

and we don't know what his opinion would be if 
one of those facts were withdrawn/' ^ No fault was 
found with this in the Supreme Court. And in a 
case in Wisconsin it is said that if the question fails 
to assume all the facts essential to the formation of 
a proper opinion, the effect of the testimony based 
thereon is much weakened, if not entirely destroyed, 
and that the court may so instruct the jury.' 

^ 83. The Hypothetical Question on the Gross- 
Examination. — ^The general rule has been stated in 
a preceding section to be, that on the direct exam- 
ination of an expert witness it is error to include in 
the hypothetical question an assumed state of facts 
which the evidence in the case does not prove or 
tend to prove.' But on the cross-examination of 
the witness counsel are not similarly restricted. 
On the cross-examination of any witness, whether 
an ordinary or an expert witness, counsel are en- 
titled to ask any questions which tend to test the 
accuracy, veracity or credibility of the witness, or 
which tend to shake the credit of the witness by 
injuring his character, although the facts concerning 
which he is questioned may be, as to the main issue, 
irrelevant and collateral.* Consequently, on the 
cross-examination of a witness testifying as an ex- 
pert, counsel may be permitted, for the purpose of 
testing the skill and accuracy of the witness, to ask 
him hypothetical questions pertinent to the inquiry 
whether the facts assumed in such questions have 
been testified to by witnesses or not.* To test the 

1 People V. Foley, 64 Mich. 148, 156. 

> Qalnn v. Higgias, 63 Wis. 664. 

' See section 27. 

« See Stephen's Digest of the Law of Evidence, Art. 129. . 

« Dlllebar v. Home Life Ins. Co., 87 N. Y. 79. 



80 EXPERT TESTIMONY. 

knowledge and competency of "the witness, counsel 
may ask purely imaginary or abstract questions, 
assuming facts or theories having no foundation in 
the evidence/ The allowance of all such questions 
rests in the sound discretion of the court, and where 
that discretion is fairly exercised the appellate 
court will not interfere.* 

After counsel have propounded to an expert a 
hypothetical question, based on the facts assumed 
to have been proved in accordance with their theory 
of the case, opposing counsel may propound the 
same question to the same witness based on the 
facts assumed in the opposing theory.' 

Upon the trial of a person indicted for murder, 
where the defense was insanity, it was held no 
c error to require the defendant to submit his hypo- 
thetical case to his professional witnesses, before the 
rebutting evidence of the State was heard on the 
question of sanity. The court declaring that if evi- 
dence materially varying the hypothetical case was 
afterwards introduced, the defendant must ask leave 
to re-examine as to new matter.* 

$ 34. Questions to Experts Should not Embrace 
Questions of Law. — It is not proper to so frame a 
question to an expert as to call for an expression of 
an opinion as to the law of the case. For instance, 
it is improper to ask a medical expert whether a 
person possessed sufficient mental capacity to enable 

1 People V. Augsbury, 97 N. Y. 501 ; Louisville, etc. B. R. Co. v. 
Falvey, 104 Ind. 409, 416, 416 ; Geiseodorf v. Eagles, 106 Ind. 38 ; People 
V. Sutton, 73 Cal. 243. 

* People V. Augsbury, 97 N. Y. 501. 

8 Davis V. State, 36 Ind. 496; Louisville, etc. R. R. Co. v. Falvey, 104 
Ind. 409, 421 ; Williams v. The State, 64 Md. 384, 393. 

* Dove V. state, 52 Tenn. 348. 



QUESTIONS AS TO PARTICULAR CASBS^ 81 

him to make a will/ The question should be soi 
framed as to require him to state the degree of intel- 
ligence or imbecility of the person, in the best way 
he can, by the use of such ordinary terms as will 
best convey his own ideas of the matter.' Or the 
witness may be asked whether the testator's mind 
and memory were suflSciently sound to enable him 
to know and understand the business in which he 
was engaged at the time he executed the will.* 

$ 35. Questions to Experts as to Particular Gases. 

— ^While the opinion of experts may be based on 
their observation and experience in similar cases, 
yet the principle is well settled that such witnesses 
cannot, on their direct examination, be questioned 
concerning the particular cases which have happened 
to come within their observation, and which have 
no connection with the case in hand.* The reason 
for the rule is manifestly to prevent the introduction 
of innumerable side issues, which might render the 
trial of a cause interminable, distract the attention 
of the jury from the real issue, and render the costs 
in the case unnecessarily burdensome and enormous. 
Different experts might have different theories, and 
each theory might be founded on the observance of 
several and distinct cases, each of which the oppo- 
site party would have a right to controvert. And 



iFarrell y. Brennan, 32 Mo. 328; McCllntook v. Card, 32 Mo. 411; 
May y. Bradlee, 127 Mass. 414; Gibson v. Gibson, 9 Yerg. 329; White v. 
Bailey, 10 Mich. 165. 

« Fairchild v. Basoomb, 35 Vt. 416, 417; State v. Hayden, 51 Vt. 304; 
Crowell V. Kirk, 3 Dev. (N. 0.) 358. 

> McOlintock V. Card, 32 Mo. 411. 

« 1 Greenl. Ey. § 448 ; (}lark v. WUlett, 35 Cal. 534, 544 ; Central Pacific 
B. B. Co. y. Pearson, 35 Cal. 247; Jonau y. Ferrand, 3 Bob. (La.) 366; 
Home y. WiUiams, 12 Ind. 324. 

(«) 



8? EXPERT TESTIMONY. 

.inasmuch as a party would be unable to anticipate 
the cases which the experts on the other side wouIjJ 
mention, he would be unable to prepare for their 
investigation, and would, therefore, be unable to 
properly avail himself of his right to controvert 
them. 

$ 86. An Expert Cannot be Asked for an Opinio^ 
.on Facts not Stated. — An expert, testifying from 
personal knowledge, cannot be asked for an opinion 
based on facts which he has not given in evidence. 
He should be first asked as to the facts, and then 
allowed to state his opinion.^ This is necessary to 
enable the correctness of the opinion expressed to 
be tested by calling other experts, and obtaining 
their opinion upon the same state of facts. It is 
equally necessary to enable the jury to have the 
means of determining whether the facts upon which 
the opinion is predicated were correct or not. 
Hence, it has been held improper to ask a physician 
** whether a person was in good health and free from 
any symptoms of disease," he not having testified 
to any facts from which it could be seen upon what 
his opinion was based.' I'or the same reason the 

1 BurnB V. Barrenfielfl, 84 Ind. 43, 48, where it is said : '<It is the clear 
right and duty of the jury to judge of the truth of the facts upon which 
the opinion of the expert is based. If his opinion is based upon what 
he may suppose he knows about the case, upon factSi it may be alto- 
gether irrelevant and unknown to the jury, it would be impossible for 
them to pass upon the truth of the facts upon which the opinion may be 
based, or to apply the opinion of the expert to the facts. Neither court 
nor jury can know the facts upon which .the opinion rests. It is obvious 
that where the expert delivers his opinion from what he supposes he 
knows about the case,. he must assume and exercise both the functions 
of the court and the jury— he determines that what he knows is both 
relevant and true. The relevancy of the facts must be determined by 
tl^e court, their truth by the jury. The witness cannot pass upon such 
questions." To same effect, Louisville, etc. R. B. Co. v. Falvey, 104 
Ind. 409, 419. 

> Reid V. Piedmont, etc. Life Ins. Co., 68 Mo. 425. 



EXAMINATION AND CROSS-EXAMINATION. 83 

following question has been held improper: *'From 
what you found at the time, in the examination of 
her, from your knowledge of her during the years 
previous, and from the symptoms which you ob- 
served at that time, paralysis or trouble with her 
limbs, and the other difficulties under which she is 
laboring, what in your opinion produced the condi- 
tion that you then found her in? '' * So it has been 
held improper to ask experts who saw a railroad 
accident, whether, in their opinion, after having 
seen the accident, anything could have been done 
by the conductor to prevent it. It called for an 
opinion not derived from the testimony, but simply 
from what was seen at the time of the occurrence.* 

The opinion of an expert is inadmissible if based 
on facts which he has heard outside the court room, 
and which he believes to be credible.* An excep- 
tion exists in the case of physicians whose testimony 
is based in part on declarations of patients, but that 
is elsewhere considered.* 

$37. other Matters Pertaining' to the Examina- 
tion and Gross-Ezamination of Experts.— It is a rule 
of evidence that an expert may be asked by either 
party as to the reasons on which his opinion is 
based; or he may, with the permission of the court, 
give such explanation on his own account. Counsel 
have a right in every case to the reasons upon which 
the opinion of the expert is based.* In an early 

^ Van Deusen v. Newcomer, 40 Mich. 120. 

« Haggerty v. Brooklyn, etc. R. R. Co., 61 N. Y. 624. 

8 Polk V. State, 36 Ark. 117, 124; Baltimore, etc. R. R. Ck). v. Shipley, 
39 Md. 261. 

* See section 47. 

» State V. Hooper, 2 Bailey (S. 0.) Law, 37; Pairchild v. Basoomb, 36 
Vt. 398,406; Lincoln t. Taunton Manufacturing Co., 9 Allen (Mass.; 
182, 191, 192; Keith v. Lothrop, 10 Gush. (Mass.) 467; In re Springer* 



84 EXPERT TESTIMONY. 

case in Massachusetts, the depositions of medical 
experts on the question of a person's sanity were 
rejected because the experts did not state the rea- 
sons for their opinion/ '* Whenever the opinion of 
any living person is deemed to be relevant, the 
grounds on which such opinion is based are also 
deemed to be relevant/^' Neither judge nor jury 
can know what credence to give to a mere opinion, 
unless the reasons on which it is founded are set 
forth. The opinion of an expert may be contra- 
dicted, by showing that at another time he had ex- 
pressed a different opinion,' and he may be asked 
as to the grounds upon which the change of his 
opinion had been brought about.* While the in- 
quiry into the grounds and reasons of the opinion 
of an expert is more frequently made on the cross- 
examination of the witness, yet there is no objection 
to its being made on the direct examination.* The 
rule is laid down that in the examination of experts 
considerable latitude of inquiry is to be indulged, 
and that counsel are not to be limited by any nar- 
row or stringent rules, either in obtaining their 
opinions irpon the facts disclosed, or in ascertaining 
their skill and competency, or the want of them.* 
'^There must be some limit to such an inquiry, and 
from the nature of the case, no definite limit can be 
prescribed as a rule of law. The court ought to 

4Fenii. Law J. 275; Commonwealth v. Webster, 5 Gush. (Mass.) 295; 
Leachev. The State, 22 Tex. App. 279. 

1 Dickinson v. Barber, 9 Mass. 218. 

> Stephen's Dig. of Ev., Art. 54. 

s Sanderson y. Nashua, 44 N. H. 492. 

* People V. Donovan, 43 Cal. 162. 

< Dickenson v. Fitchburg, 13 Gray, 546, 557. 

•Leopold y. Van Kirk, 29 Wis. 548, 555; Brown y. Chenoworth, 51 
Tex. 469. 



EXAMINATION AND CROSS-EXAMINATION. 86 

permit the inquiry to proceed far enough to enable 
the jury to judge of the reasonableness of the wit- 
ness' pretentions to skill, so far as such an inquiry 
can aflfbrd the means.''' We have seen that on 
the preliminary examination for the purpose of de- 
termining whether a witness is qualified to testify 
as an expert the court is at liberty to examine other 
witnesses to aid it in determining whether the 
witness in question is qualified to give testimony 
as an expert.' But it is now to be observed 
that after a witness has been adfiaitted to testify as 
an expert, evidence cannot be given to the jury of 
the opinion of other experts in the same science, 
that the witness is qualified to draw correct con- 
clusions on the science on which he has been ex- 
amined,' the general rule being, that after such a 
witness has been adjudged competent by the court, 
his reputation can only be sustained after it has 
been impeached.* Any difierent rule, it has been 
said, '* would lead to anything but a satisfactory re- 
sult. Another witness might then be called to give 
his opinion as to the capacity of him just examined, 
to form a correct opinion on the degree of weight 
which was due to the testimony of the first, and so 
on. The jury are to judge of the weight due to the 
opinion of medical men on the disease, from the 
facts detailed by them, and the reasons given in 
support of their conclusions, not fi-om the opinion 
others may form of their capacity."* It has been 
held competent, however, for one expert to testify 

1 Andre v. Hardin, 32 Mioh. 326. 
* See section 17. 
> Tollis v. Kidd, 12 Ala. 648. 
4 De Fhnl v. SUte, 44 Ala. 39. 
» Brabo v. Martin, 3 La. R. 177. 



86 EXPERT TESTIMONY. 

as lo the skill of another, where the knowledge of 
the witness was derived from personal observation, 
as distinguished from an opinion based on such ex- 
pert's general reputation/ In the case cited, one 
expert was allowed to testify as to the correctness of 
the tests used by another expert in testing for 
arsenic. A witness called as an expert cannot be 
asked, on cross-examination, whether he considers 
himself as good a judge of the matter in dispute, as 
other witnesses who have testified as experts, for the 
reason that such a question is simply an attempt to 
get the opinion of the witness as to the value of the 
testimony of the experts on the other side." When 
a witness has been adjudged competent upon the 
preliminary examination, opposing proof going to 
his incompetency is to be addressed to the jury to 
afifect the value of his testimony, and not to the 
court for the purpose of excluding his opinion.' 
Attention has been called to the fact that it is 
no ground for objection, that counsel was 
not permitted on the preliminary examination 
of the expert, to cross-examine him for the pur- 
pose of testing his competency, the oppor- 
tunity existing on the cross-examination-in-chief 
to test and impeach his skill,* as the extent of 
an expert's acquaintance with the subject-matter 
may always be inquired into, to enable the jury to 
estimate its weight.* When an expert was called 
and asked if he concurred in the statement of 
another expert witness, and if not, to state wherein 

1 LaroB Y. Commonwealth, 84 Pa. St. 200, 209. 

> Haverhill Loan, etc. Ass. v. Oronin, 4 Allen (Mass.), 141. 

s Washington v. Cole, 6 Ala. 212. 

^ See section 17. 

<^ Davis V. State, 36 Ind. 496. 



RULES GOVERNING EXAMINATION OF WITNESSES. 87 

he differed, the court held this method of examina- 
tion to be erroneous. ''The mode sought to be' 
adopted in eliciting the opinion of this witness may 
have the merit of being expeditious, but it might 
be attended with some unfairness toward the witness' 
himself as well as to the opposite party. Witnesses 
called upon to testify professionally should be left 
free to give their own individual opinion upon the 
facts involved, unconnected with, and untrammeled 
by the opinions of others who may have been ex- 
amined.'" 

$ 38. General Rules Governinfir the' Examination 
of Witnesses. — It would be foreign tO our purpose to 
consider in detail those rules of evidence regulating 
the examination of witnesses, which are alike appli- 
cable to the examination of professional and non- 
professional witnesses. Yet a concise statement of 
the more important principles to be observed in 
such cases may be found of convenience in this 
connection: 

I. Evidence should be confined to the points in 
issue, and evidence of collateral facts which are in- 
capable of affording any reasonable presumption as 
to the principal matter in dispute, should not be re- 
ceived.' 

(a) Evidence of collateral facts may, however, be 
received when the question is a matter of science, 
and where the facts proved, though not directly in 
issue, tend to illustrate tlie opinions Of scientific 
witnesses." 

II. Leading questions should not be asked on the 

1 fioni6 ▼. WUliams, 12 Ind. 394. 
Stroh V. Hinchman, 37 Mich. 490; White v. GraveB, 107 Mass. 335; 
Mansfield Coal Co. v. MoEnery 91 Fa. St. 185. 
s 1 Taylor on Evidence, { 337. 



88 EXPERT TESTIMONY. 

direct, but may be asked on the cross-examination 
of a witness/ 

(a) The above rule may be relaxed when made 
necessary by the complicated nature of the matter 
concerning which the witness is interrogated." 

(6) And the rule does not apply when the witness 
appears to be hostile to the party producing him.' 

III. In England the rule is that the examination 
and cross-examination of a witness must relate to 
the facts in issue, or relevant or deemed to be rele* 
vant thereto, while the re-examination must be di- 
rected to an explanation of the matters referred to 
in the cross-examination.* But in this country, the 
weight of authority is in favor of confining the cross- 
examination of the witness to the facts testified to 
in chief.* The English rule has been substantially 
adopted in Massachusetts and a few other American 
States.* In Michigan, the English rule has been 
acted on in practice, and the rulings of the Supreme 
Court of that State are as liberal as those of the 
Supreme Court of Massachusetts on the same 
subject.* 

IV. On the cross-examination, a witness may be. 
asked any question tending, (1) to test his accuracy, 
veracity or credibility, or, (2) to shake his credit by 

1 state y. Benner, 64 Me. 267; Doran v. Mailer, 78 Ul. 342; People v. 
Oyer, etc. Court, 83 N. Y. 436. 
> BuUard v. Hascall, 25 Mich. 132. 
s Farmers' Ins. Co. v. Bair, 87 Pa. St. 124. 
4 Stephens' Dig. of Ev., Art. 127.* 

* Houghton y. Jones, 1 Wallace, 702; Hughes v. Westmoreland Co., 
104 Pa. St. 207; People y. Miller, 33 Gal. 09; State y. Smith, 49 Conn. 
876; Hurlbut y. Meeker, 104 HI. 541. 

• BlacUngton y. Johnson, 126 Mass. 21 ; Beal y. Nichols, 2 Gray, 262; 
Linsley y. Loyely, 26 Vt. 123; State y. Sayers, 58 Mo. 585; Eibler y. 
Mcllwain, 16 S. 0. 550. 

' Tumbull y. Richardson, 69 Mich. 416; People y. Barker, 60 Mich 
277,302. 



BULBS GOVERNING EXAMINATION OF WITNESSES. 89 

injuring his character. And he may be compelled 
to answer the same, unless such answer would tend 
to criminate himself.* 

V. If, on the cross-examination, a witness is asked 
a question which is relevant only in that it may tend 
to shake his credit by injuring his character, his 
answer cannot be contradicted unless, (1) he has 
denied facts tending to show that he is not impar- 
tial, or, (2) he has been asked and has denied or 
refused to answer whether he has been convicted of 
some criminal offense.' 

VI. On the cross-examination, a witness may be 
asked as to any former statements which he may 
have made, and which are inconsistent with his 
present testimony. If he denies having made them, 
they may be proven against him.* 

VII. The court in its discretion may permit a 
witness to be recalled for further examination. If 
permission is granted for further examination-in- 
chief, or further cross-examination, the parties have 
the right of further cross-examinatioQ and of further 
re-examination respectively.* 

VIII. A party is entitled to the cross-examination 
of a witness who has been, (1) examined-in-chief, 
or, (2) according to the English rule, if he has been 
intentionally sworn.* 

1 People V. Arnold, 40 Mich. 710; Duncan v. Seeley, 34 Mich. 869; 
People V. Koelke, 94 K. T. 137; Commonwealth v. People, 10^ Mass. 
163; Storm v. United Stotes, 94 U. S. 76; Player v. Barlington, etc. R. 
B. Co., 62 Iowa, 723. 

> Collins y. Stephenson, 8 Gray, 438. 

> Horton v. Chadboom, 81 Minn. 322; State v. McLaag1)lin, 44 Iowa, 
82; Conrad v. Griffey, 16 How. (U. S.) 38; People v. Dfvine, 44 Cal. 
462; SUte v. Grant, 79 Mo. 113. 

4 Continental Ins. Co. v. Delpench, 82 Pa. St. 226; Cumminfi^s v. Tay- 
lor, 24 Minn. 429. 
* Stephens' Dig. of Evidence, Art. 126. 



90 EXPERT TESTIMONY. 

§ 39. ExcludinfiT Experts from the Court Boom 
durinsr the Examination of Witnesses. — ^The princi- 
ple is well settled that the judge, on the application 
of either party, may, at his discretion, order a sep- 
f^^ation of ordinary witnesses, in order that they, 
may be prevented from hearing the testimony of the 
witnesses as given in the court room.* And this 
practice was established at an early period, being 
referred to with approbation by Fortescue, in his 
work De Laudibus Legum Angliss.* It is evident 
that in case of the expert witnesses an exception 
should be made. As they are to be examined as to 
opinions based on facts testified to by other wit- 
nesses, they should be allowed to remain in court 
and hear the evidence relating to the facts. But 
when the testimony as to the facts is closed, and the 
expert testimony commences, the judge may, in his 
discretion, order a separation of the expert wit- 
nesses. Such is the practice in Scotland, where it 
has been the usual practice to exclude medical wit- 
nesses as soon as the medical experts commence 
testifying concerning matters of opinion.' In En- 
gland the rule is laid down that '* medical or other 
professional witnesses, who are summoned to give 



1 Selfe y. Isaacson, 1 F. & F. 194; Southey v. Kash, 7 C. ft P. 632; 
Regina v. Kewman. 3 0. & K. 260 ; McLean v. State, 16 Ala. 672 ; Wilson 
y. State, 52 Ala. 299; Pleasant y. State, 15 Ark. 624, 633; People y. 
BoBCoyitcli, 200al.436; Johnson y. State, 2 Ind. 662; Errisman y . Erris- 
man, 25 111. 136; Dayenport y. Ogg, 15 Kan. 363; Siartorioas y. State, 24 
Miss. 602; Dyer y. Morris, 4 Mo. 214; State y. Fltz8immons,30 Mo.236; 
State y. Zellers, 7N. J. L. 220; Laughlin y. State, 18 Ohio, 99; State v. 
Salge^ 2 Ney. 321 ; Hopper y. Commonwealth, 6 Gratt. (Va.) 684; Bena- 
way y. Cpnyne, 3 Ohand. (Wis.) 214. 

> <' £t si necessltas exegerit diyidantur testes hnjas modi, doneo ipsi 
de posaerint quicquid yelint, ita quod dictum anius non docebit aot 
coneitabit eomm alium ad consimiliter testificandam.'V 0. 26. 

s Allison's Practice of Grim. Law of Scotland, 642. 



RIGHT OP COURT TO LIMIT NUMBER OF EXPERTS. 91 

scientific opinions upon the circumstances of the 
case, as established by other testimony, will be per- 
mitted to remain in court until this particular class 
of evidence commences, but then, like ordinary wit- 
nesses, they will have to withdraw, and to come in 
one by one, so as to undergo a separate examina- 
tion.'" And in this country the principle is sim- 
ilarly stated.' 

§ 40. BiflTht of the Court to Limit the Numher of 
Expert Witnesses. — The number of expert witnesses, 
whose testimony will be received in any particular 
case, rests in the sound discretion of the trial court. 
In the old Roman law, the power of the court to 
limit the number of experts who could be sworn, 
and even to select two or three from those proposed 
by the parties, excluding the others, was conceded 
to exist." And in this country, the right of the court 
to decline to permit certain witnesses to be sworn as 
experts, after a sufficient number have already been 
examined, has been maintained in several cases.* 
But it would not be proper for the cotrrt to limit a 
party to one witness on any vital point;* In France 
the number of experts who may be examined in 
questions of handwriting seems to be limited to 
three,* while in Kansas the opinions of at least three 
experts are required bylaw to establish the genuine- 
ness of a disputed writing.^ In a recent case in 

I 2 Taylor'B Ev., § 1269. And see Tait. Bv. i20. 

* 1 Wharton's Ev., f 492. 

> Bartol in L. 1, pr. de ventr. iasp. no. 5; Bald, in L. 20, cod. de fide 
hist. 

4 Sizer v. Burt, 4 Denio, 426; Anthony v. Smith, 4 Bos. (N. T.) 508, 
608; Fraser v. Jennison, 42 Mich. 206, 223. 

* See Hubble ▼. Osbom, 31 Ind. 249. 

* Code de Procedore ciyiUe, Part 1, 1. 2, tit. 10, s. 200. 
1 Gen. Stat. (1868) p. 864, { 216. 



92 EXPERT TESTIMONY. 

Michigan, involving testamentary capacity, the trial 
court, after listening to the testimony of five experts 
called by the contestants of the will, declined to per- 
mit a sixth expert to be examined. The Supreme 
Court sustained the action of the court below, and 
Mr. Justice Cooley said : '* If testamentary cases are 
ever to be brought to a conclusion, there must be 
some limit to the reception of expert evidence, and 
that which was fixed in this case was quite liberal 
enough. To obtain such evidence is expensive, since 
desirable witnesses are not to be found in every com- 
munity ; but an army may be had if the court will 
consent to their examination ; and if legal controver- 
sies are to be determined by the preponderance of 
voices, wealth, in all litigation in which expert ev- 
idence is important, may prevail almost of course. 
But one familiar with such litigation can but know 
that, for the purposes of justice, the examination of 
two conscientious and intelligent experts on a side 
is commonly better than to call more. And certainly 
when five on each side have been examined, the limit 
of reasonable liberality has in most cases been reached. 
The jury cannot be aided by going farther. Little 
discrepancies that must be found in the testimony of 
those even who in the main agree begin to attract 
attention and occupy the mind, until at last, jurors, 
with their minds on unimportant variances, come to 
think that expert evidence, from its very uncertainty, 
is worthless. This is not a desirable state of things, 
and it can only be avoided by confining the use of 
expert evidence within reasonable bounds."* 

^ 41 . By Whom Expert Witnesses are Selected.-^ 
In France experts are officially delegated by the 

1 Fraser v. jennison, 42 Mich. 206, 223. See People v. Kemp, 76 
Mich. 420. 



BY WHOM EXPERT WITNESSES ARE SELECTED. 93 

court, to inquire into the facts and report thereon/ 
The court ex officio may order an expertise whenever 
it considers such a course desirable, or the court may 
order it at the request of the parties. An order for 
an expertise must contain a statement of the precise 
matter to be submitted, and an appointment of the 
experts as well as of a referee. The parties may 
agree on the experts, but if they do not agree the * 
court will make the appointment without reference 
to the parties. As a rule, the court cannot appoint 
less than three. Avocats or barristers are not allowed 
to appear before the experts, but the parties are rep- 
resented before them by persons specially skilled in 
the subject-matter under inquiry. They are also 
represented by avoues. As a rule, any one can be ap- 
pointed by the court, although, as a matter of fact, 
the selection of the experts is usually made from a 
list of specialists called experts assermentes.* But 
in Germany even greater care has been taken to pro- 
vide, that only those who are in every way qualified 
by their learning and experience shall be permitted 
to testify in the character of experts. The courts of 
that country are not granted the power of appoint- 
ment, nor allowed to pass upon the qualifications of 
the witnesses, but the experts in criminal cases first 
summoned are exclusively those whom the State, 
after prior examination of their competency and 
skill in such particular inquiries, has duly authorized 
to testify in such cases. In addition to this, pro- 
vision is made for an appeal to a tribunal of experts, 
to which the opinions of the expert witnesses can be 
referred.* In Prussia it was the practice for the State 

1 Code de Procedure civile. Part 1, 1. 2, tit. 10, s. 200. - 
s-See Am. Law Review for 1885, p. 392. 

s Gasper's Gericht Med., Berlin, 1871, 1, § 3. See 2 Wharton A Stille's 
Med. Juris. (Part n) f 1249. 



94 EXPERT TESTIMONY. 

to appoint as experts a physician and surgeon for 
every county. A medical college was established for 
each province, to which men of peculiar knowledge 
in medical jurisprudence were assigned. And if a 
difference of opinion existed between the county ex- 
perts, or the parties desired an appeal, the case could 
be brought before this medical college of the prov- 
ince. In addition to this an appellate medical com- 
mission for the whole Kingdom existed.* In En- 
gland and in this country, as all know, the practice 
has been entirely different from that adopted in either 
France or Germany. Both here and in England the 
parties usually select their own experts, and pay 
them their compensation. The adoption in this 
country of the German system of governmental ex- 
perts has been advocated by a distinguished writer 
on medico-legal questions,' who proposes that there 
should be selected after an adequate competitive ex- 
amination, a medical expert for each county in a 
State, to whom should be referred all questions of 
medical science that might arise in litigation. It 
is proposed that it should be his duty to take testi- 
mony bearing on such questions, and hear counsel 
thereon, and after having judicially heard the case, 
should certify his opinion to the court, by whom the 
reference was made. In proper cases an appeal 
could be taken from such an opinion to a Supreme 
Court of governmental experts appointed by the 
state at large. In this way it is thought that the 
expert would be free from the embarrassment of any 
personal relations to the parties. '* He will have no 
client to serve, and no past partisan extravagances to 

1 Rechts lexicon, Leipzig, 1870, 1, 478. 

* 2 Wharton & Stille's Medical Jnrispradence, FartH, { 1260. 



BY WHOM EXPERT WITNESSES ARE SELECTED. 96 

vindicate. He will render his opinion as the advo- 
cate neither of another n©r of himself. When he 
speaks he will do so judicially, as the representative 
of the sense of the special branch of science which 
the case invokes, governed by the opinion of the 
great body of scientists in this relation, and advised 
of the most recent investigations. When this is 
done we will have expert evidence rescued from the 
disrepute into which it has now fallen, and invested 
with its true rights as the expression of the particu- 
lar branch of science for which it speaks. ' ' The ap- 
pointment of a board of state experts certainly has 
much to commend it to judicial approval. By the 
adoption of some such system, the mature judgment 
of the best minds could be obtained, and the super- 
ficial opinions of quacks and mountebanks would 
not be thrust upon the jury to their confusion and 
to the hinderance of justice. Whether the experts 
are appointed by the court or by the state, in either 
case there would be eliminated the embarrassment 
caused by having the experts appear in the case as 
the interested partisans of the party by whom they 
are called and specially paid. But while we should 
under the system proposed be rid of some of the em- 
barrassments we now labor under, there are certain 
disadvantages connected with it which seriously de- 
tract from its practicable value. Men eminent in 
one branch of their profession often have but a super- 
ficial knowledge of other branches, and a physiciaii 
who may be very able and learned in certain subjects 
connected with his profession, may be quite igno- 
rant of certain intricate questions of medicad 
science. If all questions of medical science had 
to be referred to a board of governmental ex- 



96 EXPERT TESTIMONY. 

perts, suitors would be practically prohibited from 
availing themselves of the testimony of other ex- 
perts, who might be much better qualified by their 
special knowledge on that particular subject to form 
a correct and accurate opinion. 

Sir James Fitzjames Stephen in his History of the 
Criminal Law declares that he has the strongest pos- 
sible opinion in favor of the maintenance of the 
present system. '*Our present system," he says, 
'* provides a definite place and definite rights and 
duties for the parties, the judge, the jury, and the 
witnesses. What room there is for any other person in 
the proceedings I do not see. It is impossible to say 
what an expert is to be if he is not to be a witness 
like other witnesses. If he is to decide upon med- 
ical or other scientific questions connected with the 
case so as to bind either the judge or the jury, the 
inevitable result is a divided responsibility Which 
would destroy the whole value of the trial. If the 
expert is to tell the jury what is the law — say about 
madness — he supersedes the judge. If he is to de- 
cide whether, in fact, the prisoner is. mad, he super- 
sedes the jury.'" 

A distinguished writer on the jurisprudence of 
medicine, has expressed the opinion that it would 
be better to take away from counsel the examination 
of experts, and devolve it upon the court. **It 
would be better," he says, *'were it possible, for the 
court alone to examine experts upon those points on 
which their professional opinions are needed, rather 
than to hand them over to counsel, each of whom 
has an interest in making their testimony aid his own 
side, and to that extent forcibly impressing upon it 

^ 1 Stephen's HUtory of the Orim. Law, p. 575. 



BY WHOM EXPERT WITNESSES ARE SELECTED. 97 

a unilateral character/'* The learned writer has 
overlooked the fact that it is necessary to a 
thorough and enlightened examination of an ex- 
pert witness on an intricate question of med- 
ical, or other science, that the examiner should 
make himself as familiar as possible with the 
subject-matter of inquiry. To prepare himself 
for the examination of an expert witness, coun- 
sel often spend days and even weeks in the careful 
investigation of the scientific question involved. 
This the court cannot do, both for want of time and 
for want of knowledge of the questions which will 
be raised. It is the part of wisdom that the inquis- 
itorial and judicial functions should be so far as pos- 
sible kept distinct. 

1 Ordonaaz'8 Jar. of Medicine, § 104, p. 123. 

(7) 



98 EXPERT TESTIMONY. 



CHAPTER IV. 



EXPERT TESTIMONY IN MEDICINE, SURGERY AND 
CHEMISTRY. 



SECTION. 

42. Competenoy of FhyBicians to Testify as Experts. 

43. Disqualification Arising from Information Acquired While At- 

tending Patient 

44. Cases in Which Physicians may Testify Notwithstanding the 

Prohibitory Statutes. 

45. Partial Waiver of the Privilege. 

46. Opinions Based on Statements Made out of Court and not Under 

Oath. 

47. Opinions of Physicians Based in Part on Declarations of Patients. 

48. Opinions as to the Condition of a Patient. 

49. Opinions as to Cause of Death. 

50. The Nature and Symptoms of Disease. 

51. Medical Testimony Relating to Wounds. 

52. Who are Competent to Testify. 

53. What Testimony is Admissible Concerning Wounds. 

54. Detection of Poison by Experts. 

55. Who are Experts in the Detection of Poisons. 

56. Chemical Analysis of Poison not Necessary, When. 

57. Chemical Analysis of Contents of Stomach. 

58. Order of Research in Analysis for Poisons. 

59. Expert Testimony on the Subject of Blood. 

60. Whether Ordinary Witnesses may Testify as to Blood Stains. 

61. Blood Stains— Proper Question Concerning. 

62. Miscellaneous Cases in Which Opinions of Chemists Have Been 

Received. 

63. Expert Testimony on the Subject of Hair. 

64. Expert Testimony in Malpractice Cases. 

65. Expert Testimony in Cases of Rape. 

66. Expert Testimony in Cases of Abortion, Pregnancy and Seduc- 

tion. 



COMPETENCY OF PHYSICIANS TO TESTIFY. 99 

• 67. Opinions of Non<ProfeMlonal Witnesses as to Mental Condition. 

. 68. Expert Testimony as to Mental Condition. 

69. Form of Question as to Mental Condition. 

70. Svidenoe Bearing on Question of Insanity* 

71. Opinions Concerning the Discretion of a Person of Non-Age. 

72. Right to Order an Examination of the Person by Medical Ex- 

perts in Cases of Alleged Impotency. 
78. Who Should be Appointed to Make the Examination. 

74. When Compulsory Examination in Such Cases Will Not be 

Ordered. 

75. Summoning Experts to Assist in Determining the Proper Inter- 

rogatories. 

76. The Subject of Inquiry— Structural Defect— Impracticability of 

Consumation. 

77. Defraying the Expenses of the Examination by the Experts. 

78. ConpBlaory Examination in Criminal Cases. 

79. Compulsory Examination in Actions for Damages. 

80. Refusal to be Examined by a Particular Expert who is Personally 

Obnoxious. 

81. The Opinions of Medical Men in Miscellaneous Cases. 

82. Opinions of Non-Professional Witnesses on Questions Related to 

Medical Science. 

83. Experts in the Diseases of Animals. 

$ 42. Competency of Physicians to Testify as Ex- 
perts. — The principle is well established that physi- 
cians and surgeons of practice and experience are 
experts in medicine and surgery, and that their opin- 
ions are admissible in evidence upon questions that 
are strictl}^ and legitimately embraced in their pro- 
fession and practice.* Persons are presumed to 
understand questions appertaining to their own pro- 
fession." While the above is the general rule, it will 
be well to notice certain other principles on which 
courts have acted in determining questions of com- 
petency in the case of physicians and surgeons. 

1 Hathaway Admr. y. National Life Ins. Co., 48 Vt. 335,361 ; De Phue 
t. State, 44 Ala. 39; Livingston v. Commonwealth, 14 Gratt. (VaO 592; 
Bird y. Commonwealth, 21 Gratt. (Va.) 800; State y. Clark-, 15 S. C. (N. 
S.) 403, 408; Olmsted y. Gere, 100 Pa. St. 127; State y. Slagle, 83 X. C. 
630. 

s Jones y. White, 11 Humph. (Tenn.) 208; Missouri Pacific B. B. Co. 
y. Finley, 38 Kan. 550. 



100 EXPERT TESTIMONY. 

1 . In the absence of some statutory provision on 
the subject, it is not necessary that physicians or 
surgeons should be graduates of any medical college, 
or have a license to practice from any medical board, 
in order to render them competent to testify as ex- 
perts in relation to matters connected with their pro- 
fession.^ If it is shown that the witness is a practic- 
ing physician or surgeon, it is sufficient evidence that 
he is competent to express an opinion upon a medi- 
cal question. But in Wisconsin the legislature has 
enacted a law expressly providing that ' 'no person 
practicing physic or surgery shall have the right 
* * * to testify in a professional capacity as a 
physician or surgeon in any case, unless he shall have 
received a diploma from some incorporated medical 
society or college, or shall be a member of the State 
or some county medical society, duly organized in 
this State.'" 

2. The system of medicine pursued by the prac- 
titioner is, in general, immaterial, the law not recog- 
nizing any particular school of medicine to the ex- 
clusion of others.* 

The law does not concern itself with the merits of 
particular systems of medicine, medicine not being 
an exact science. In the case above cited the court 
say: ''The popular axiom, that doctors differ, is as 
true now as it ever was, and as long as it continues 
to be so, it is impossible for the law to recognize any 
class of practitioners, or the followers of any partic- 



^New Orleans, etc. R. R. Co. v. Allbiitton, 38 Miss. 242; State v. 
Speaks, 94 N. C. 865, 874. 

s Wis. An. StaU. (1889), p. 888, § 1436. 

» Corsi V. Maretzek, 4 E. D. Smith (N. Y.)> 1 ; B<)wman v. Woods, 1 
Greene (Iowa), 441. 



COMPETENCY OF Pfi-YSICIANS TO TESTIFY. 101 

ular system or method of fr^^tment, as exclusively 
entitled to be regarded as doctoVsr.'^' 

3 . Neither is it necessary that f he'm^ical witn ess 
should have made a specialty of the parti'cular dis- 
ease which is the subject of inquiry. A general 
practitioner is, ordinarily, a competent witness.*^ 

It is a well known fact that at the present day 
various classes of disease have been made specialties, 
and that many practitioners devote themselves ex- 
clusively to certain diseases of the eye, or ear, or 
lungs and throat, or heart, or nervous diseases, or 
diseases of the brain. But the law does not require 
the medical witness to have made a specialty of any 
one of these subjects to qualify him to testify in re- 
lation to the same. Thus, it has been held that a 
physician may be examined as to injuries done to 
the eyes of a party by violence, although he may 
not be a surgeon or an oculist.' 

4. But one who devotes himself exclusively to 
one branch of his profession, making a specialty of 
that, and having no practical experience beyond it, 
is incompetent, as a general rule, to express an 
opinion on a question that does not pertain to his 
specialty. 

For example, a specialist in diseases of the eye 
cannot testify as an expert in relation to mental dis- 
eases.' And so it has been held that a physician 
was incompetent to express an opinion upon the 
question of insanity, whose habit it had been, when 
his patients required medical treatment for insanity, 

1 Hathaway y. National Life Ins. Co., 48 Vt. 335, 351 ; State y. Bed- 
dick, 7 Kan. 143; Hastings y. Bider, d9 Mass. 622; Horton y. Green, 64 
N. O. 64; Kelly y. United States, 27 Fed. Bep. 616; 8. c, 8 Or. Law 
Mag. 174. 

s Castner y. Sliker, 33 N. J. L. 95; s. c, lb. 607. 

s Fairehild y. Bascomb, 35 Vt. 410. 



102 EXPERT TE»TIMpNY. 

to call in the serviced. (iC » 'f)liysician who had made 
a special study of •m^'ial diseases, or to recommend 
their removal. io^*/*p -hospital for the insane/ 

5. A 'general practitioner is probably not incom- 
petenfcjtp ^ive expert testimony on the ground that 
he-ha(i'not had, in his experience, a case like the one 

;.in 'question.' 

' ' In a case in New Hampshire, a practicing physi- 
cian, whose knowledge of the particular subject of 
inquiry was derived from study alone, was held com- 
petent to express an opinion as an expert.' And on 
a trial for abortion, a physician was held competent 
to state the effect of a certain drug on the womb, 
although he was without any personal knowledge of 
the effects of the drug, his knowledge on the subject 
being derived from reading.* 

But a contrary ruling has been made in the Su- 
preme Court of Wisconsin, in a criminal trial for 
murder by poison. In that case the witness had 
been a practicing physician for twenty-five or thirty 
years, but he had never had a case of arsenical poison- 
ing to treat as a physician, and stated that all his 
knowledge about the symptoms of arsenical poison- 
ing was derived from his study of medical works, 
and from the instruction at a medical college, and 
not from any practical observation of his own. He 
was on that account held incompetent to testify 
that certain symptoms which had been described in- 
dicated arsenical poisoning.* 



1 Oommonweftlth v. Rich, 14 Gray (Haas.), 335. 
3 State Y. Clark, 12 Ired. (N. 0.) 151 ; Hathaway's Admr. v. National 
Life InB. Co.y 48 Vt. 335. And see section 19. 
> Taylor v. Grand Trunk B. B. Co., 48 N. H« 304. 
* State y. Wood, 53 N« H. 484. 
» Soquet ▼. The State, 72 Wis. 659. 



COMPETENCY OF PHYSICIANS TO TESTIFY. 103 

6. But a general practitioner does not seem to be 
competent to testify as an expert on a question which 
pertains to a particular branch of medical science to 
which the witness has given no study, and concern- 
ing which he has had neither observation nor experi- 
ence. 

For example, in a recent case in Mississippi^ the 
court declared, that a medical practice confined to 
the treatment of ordinary diseases, does not quaUfy 
a physician to testify as an expert upon insanity upon 
hypothetical interrogations as to supposed facts, of 
which he had no person al knowledge . * But his testi- 
mony is admissible if he has a personal knowledge 
of the facts,' or if he has studied somewhat the sub- 
ject of psychological medicine.* It has been held 
that a physician who had been in practice for several 
years, but who had no experience as to the effect 
upon health of breathing illuminating gas, could not 
testify in relation thereto, as an expert.* The fact 
that he was a physician, it was said, did not neces- 
sarily give him any knowledge of gas and its effects 
upon health; and an experience in attending other 
persons, who were alleged to have been made sick 
by breathing gas from the same leak, was pronounced 
insufficient. 

7. A physician or surgeon, otherwise qualified, 
is not to be considered disqualified to give expert 
testimony on the ground that he is not engaged in 
practice at the time.* 

1 Rii88eU V. state, 53 MIm. 367. And likewise Commonwealth y. Rich, 
14 Gray (Mass.), 335. 

< Baxter v. Abbott, 7 Gray (Mase.)) 71* 

> State y. Reddick, 7 Kan. 143; Dayls y. Stote, 35 Ind. 496. See too 
Bitner y. Bitner, 65 Pa. St. 347, and Pidcock y. Potter, 68 Pa. St 347. 
4 Emerson y. Lowell Gas Light Co., 6 AUen, 146. 

< Eyerett y. The SUte, 62 Ga. 65. And see section 18. 



104 EXPEBT TESTIMONY. 

The fact that he is not at the time in practice, 
does not go to his competency, but only to his credit/ 

Hence, a witness was held competent to testify as 
a medical expert, who stated that he had attended a 
course of medical lectures, had obtained a license 
from the State, and had practiced as a physician for 
a year, when he abandoned the medical profession 
for that of the law, which had been his profession 
for the last sixteen years, but that he had continued 
to read medical works, had kept up with the im- 
provements made in the science of medicine, and felt 
competent to express a medical opinion upon the 
subject of inquiry.' 

' 8. But whether he must at some time have been 
engaged in active practice seems not quite clear. 

In a case in Alabama, decided in 1847, the court 
seemed inclined to the opinion that it was not neces- 
sary that the witness should have been in active 
practice, but what was then said was simply obiicT 
dicta. The court said: ''If one asserts an ability to 
give correct opinions upon any art or science, from 
an acquaintance with the subject, acquired by ob- 
servation and study, we cannot perceive on what 
ground he can be rejected because he has not been 
in the actual practice of his profession.''* On the 
other hand, in a case in Vermont in 1862, that court 
says: ''The mere fact that a person was, by educa- 
tion, a physician, if he had not practiced his pro- 
fession, we should not deem sufficient to justify his 
admission as an expert."* 

1 Roberts y. Johnson, 58 N. T. 613. 
' « TuUis V. Kidd, 12 Ala. 648, 660. 
« TnlHs V. Kidd, 12 Ala. 648, 650. 
* Fairchild v. Bascomb, 35 Vt. 398, 409. See section 19. 



INFORMATION ACQUIRED ATTENDING PATIENT. 105 

9. A person who is neither a physician nor sur- 
geon can express an opinion on a medical question, 
when the matter inquired about lies within the 
domain of the profession or calling which the witness 
pursues, being common to the two professions. 

For example, a chemist and toxicologist, who is 
not a physician or surgeon, is competent to testify 
as an expert concerning the effect of strychnine upon 
the human stomach and upon the human system. 
The effect of poisons on the human system falls 
within the scope of the science of toxicology as well 
as of medicine.* 

So a midwife, although not a physician, is compe- 
tent to testify whether the birth of a child is pre- 
mature.' 

$ 43. Disqnalification Arisinsr from Information 
Acquired while Attendinsr Patient. — In the absence 
of any statutory provision to the contrary, it is well 
settled that a physician or surgeon may be compelled 
to disclose any communications made to him in pro- 
fessional confidence.* A physician, therefore, is not 
incompetent at the common law to testify to a pro- 
fessional opinion based on facts learned by him from 
such communications. 

But in most of the States statutes have been 
enacted which have abrogated the common law rule 
on this subject. In some the statute is that ''no 
person duly authorized to practice physic or surgery, 
shall be compelled to disclose any information which 
he may have acquired in attending any patient in a 

1 The state v. Cook, 17 Kan. 392. 

< Mason y. Fuller, 45 Vt. 29. 

< Stephen's Difi:. of Eyidence, Art. 117; Dutchess of Kingston's Case, 
Hargr. St. Tr. 243, 20 How. St. Tr. 613, 614; Ashland v. Marlborough, 99 
Mass. 48; Barber v. Merriam, 11 Allen, 322; People y. Stout, 3 Parker 
Or. Gas. 670. 



106 EXPEBT TE8TIM0NT.. 

professional character, and which information was 
necessary to enable him to prescribe for such patient 
as a physician, or to do any act for him as a surgeon. ' ' 

While in others it is provided that the witness 
shall not be competent, or shall not be allowed to 
make the disclosure/ 

When a party seeks to exclude the testimony of a 
physician under these statutory provisions, the bur- 
den is on him to bring the case within the provision. 

For instance, under such a provision as exists in 
New York, the burden would be on him not only to 
make it appear that the information which he seeks 
to exclude was acquired by the witness in attending 
the patient in a professional capacity, but also that 
it was necessary to enable him to act in that capacity.' 
As to the first of these conditions — ^that the physi- 
cian attended in a professional capacity — ^it is not 
necessary that the physician should have been em- 
ployed by the patient himself. Where a physician 



^The statutory proYision on this subject may be found as follows: 
Arkansas: Dig of St. 1^4, p. 492, f 2486. Arizona: Oomp. Laws 1877, 
p. 470, § 2836. California: Code of Civil Procedure (Haymond & 
Busch), vol. 2, p. 406, 1 1881. Dakota: Revised Codes, 1877, p. 663, f 
499. Idaho: Laws of 1876, f 622. Indiana: R. S. 1881, p. 83, § 497. 
Iowa: MoClain's Annototed Code, 1888, vol. 2, § 4893. Kansas: Gen. 
Stot., 1889, S 4418. Michigan: 2 How. Ann. St. f 7616. Minnesota: 
Gen St. 1878, p. 792, { 10. Missouri: R. S. 1879, p. 690, f 4017. Mon- 
tana: Laws of 1871-2, p. 126, f 460. Nebraska: Comp. St. 1889, p. 899, 
1 333. Nevada: Baily & Hammond's Gen. St., { 3406. New York: 
Code of Proc. § 834. Oregon : Gen. Laws 1843-72, p. 261, § 702, d. 4. 
Wisconsin: Sanborn & Berryman^s Ann. St., vol. 1, p. 888, § 1436. 
Wyoming: Gen. Laws 1869, p. 672, § 326. Washington: Code 1881, p. 
102, f 392. There may be other States and Territories containing similar 
provisions, the above list not being considered exhaustive. 

s The People v. Schuyler, 106 N. T. 298; Edington v. JEXn% Life Ins. 
Co., 77 N. Y. 664, 669. But see Matter of Darragh, 62 Hun, 693, where 
the Supreme Court does not understand the Court of Appeals as con- 
struing the statute so as to hold that it should appear that the informa- 
ion was necessary to enable the physician to act. 



INFORMATION ACQUIRED ATTENDING PATIENT. 107 

attends for consultation by request of another physi- 
cian, the case falls within the statute.^ 

As to the second of these conditions— that the in- 
formation acquired while attending the patient must 
have been such as was necessary to enable him to 
prescribe for such patient — it is clear that if the 
physician has acquired any information which was 
not necessary to enable him to prescribe, or to act as 
a surgeon, he can be compelled to disclose it, al- 
though he acquired it while attending the patient.' 

It has been held that the fact that a witness was 
the jail physician, charged with the duty of observ- 
ing and treating the prisoners confined in the jail, 
including the prisoner on trial, did not render in- 
competent his opinion as to the prisoner's sanity, 
where it did not affirmatively appear that the rela- 
tion of physician and patient actually existed, and 
that the information was acquired through, or for 
the purposes of that relation. ' ' The nominal relation 
of physician and patient, arising out of the legal 
duty of this physician, is not sufficient to exclude 
his opinions formed from his observations while such 
nominal relation only existed.''' 

The fact that a physician is selected and sent by 
the public prosecutor to attend upon a female on 
whom an abortion is charged to have been com- 
mitted, does not prevent the professional relation of 
physician and patient arising between the said woman 
and physician so as to prevent his disclosure of any 
information thus acquired, she having accepted his 

1 Benihan v. Dennin, 103 N. T. 573. 

< Sdington v. .^Etna Life Ins. Co., 77 N. Y. 564, 570; Steele v. Waxd, 
30 Hon (N. Y.), 566; Canipaa y. North, 39 Mich. 606. 

s People ▼. Schayler, 43 Hun (N. Y.), 88, 03— affirmed in 106 K. Y. 
298. 



108 N 



EXPERT TESTIMONY. 



services. She had a right to decline his assistance, 
but when she accepted it she had a right to deem 
him her physician, and treat him accordingly/ 

It has been made a question under these statutes 
whether the information which the physician has 
acquired from the patient, but cannot disclose, is 
confined to communications made by the patient to 
the physician, or whether it extends to any informa- 
tion that was disclosed to any of his senses. The 
rule is that the statute protects with the veil of 
privilege whatever, in order to enable the physician 
to prescribe, was disclosed to any of his senses, and 
which in any way was brought to his knowledge for 
that purpose.' A communication to the physician's 
sense of sight is as fully within the statute as though 
it had been orally communicated, and information 
derived from observation of the patient's appear- 
ance and symptoms cannot be disclosed.' 

§ 44. Cases in which Physicians may Testify not- 
withstandinsr the Prohibitory Statutes. — The statutes 
referred to in the preceding section were passed for 
the benefit of the patient, and for the sole purpose 
of enabling individuals in need of medical aid to 
make a full disclosure of the facts of their condition 
without fear of a betrayal of confidence. This being 
the sole purpose of the enactment of these statutes, 
the patient may waive the privilege which the stat- 
utes secure, the public not being concerned in the 
suppression of the information when there is no 
desire for suppression on the part of the patient. 

1 The People v. Murphy, 101 N. Y. 126, BO. 

* Briggs y. Briggs, 20 Mioh. 34. 

'Grattan y. Metropolitan Life Ins. Co., 92 N. Y. 274; Grattany. 
Metropdlitan Life Ins. Co., 80 N. Y. 297; Edington y. Mutual Life Ins. 
Co., 67 N. Y. 185; Gartside y. Conn. Mut. Lif e Ins. Co., 76 Mo. 446; 
Houston y. Simpson, 115 Ind. 62. 



PROHIBITORY STATUTES. \ 109 

With the consent of the patient the physician may 
testify notwithstanding the statutes.^ 

But the question arises whether this right of 
waiver is personal to the patient so that it can be 
exercised by him alone, his personal representatives, 
after his death, not being entitled to exercise it as 
he might have done. 

In New York, under a statute expressly providing 
that the prohibition shall apply unless ^ 'expressly 
waived" by the patient, it has been held that the 
executor or administrator does not represent the de- 
ceased for the purpose of making the waiver.* But 
where the statute is absolute in terms containing no 
such provision as to waiver, th# courts have held not 
only that the patient may waive the privilege, but 
that those who represent him may do the same for the 
protection of the interests they claim under him.' 
Accordingly, it has been held in New York that 
their statutory provisipns are applicable to the case 
of physicians who in a professional capacity have 
acquired knowledge concerning the mental conditibn 
of their patients, and that they are incompetent 
witnesses to testify, from knowledge so acquired, as 

1 Grand Rapids, eto. R. R. Co. y. Martin, 41 Mich. 667; Groll v. 
Tower, 85 Mo. 249, oyemiling Gartside v. InB. Co., 76 Mo. 446; Squires 
V. City of ChUlicothe, 89 Mo. 226; Hoyt v. Hoyt, 112 N. Y. 493, 515; 
Morris v. Morris, 119 Ind. 341, 344. 

' The Court of Appeals of New York says: ^*The purpose of the laws 
would be thwarted, and the policy intended to be promoted thereby 
would be defeated, if death remoyed the seal of secrecy. * * When- 
eyer the eyidence comes within the pu^'yiew of the statutes, it is abso- 
lutely prohibited, apd may be objected to by any one unless it bewaiyed 
by the person for whose benefit and protection the statutes were enacted. 
After one has gone to his graye the Hying are not permitted to impair 
his fame and disgrace his memory by dragging to the light communica- 
tions and disclosures made under the seal of the statutes.^^ Westoyer y. 
^tnaLife Ins. Co., 99 N. Y. 56, 59. 

> Eraser y. Jennison, 42 Mich. 206, 225; Morris y. Morris, 119 Ind. 341. 



110 EXPERT TESTIMONY. 

to the mental soundness or unsoundness of their 
deceased patient, when the question involved is one 
of testamentary capacity,* although the evidence 
will be received if the objection to its reception 
is not seasonably interposed.' On the other hand, 
when the statutory provision is diflferent from 
that in New York, already referred to, the legal 
representative may waive the privilege, and the 
physician may be allowed to testify as to the 
mental condition of a testator, although his knowl- 
edge as to such condition was obtained while in the 
discharge of his duty as his attending physician.' 

The statutory provisions under consideration, be- 
ing designed for the exclusive protection of the pa- 
tient, will not be construed so as to prejudice the 
public interests, provided the disclosure to be ob- 
tained manifestly works no injustice to the spirit and 
intent of the law. Hence in a criminal case where 
the patient was dead, the New York court held that 
his physician might be allowed to testify, when the 
information disclosed would not prejudice the de- 
ceased, but would aid in the conviction of the crim- 
inal. In that case a prisoner was charged with 
murder committed by the administration of arsenic, 
the State called as a witness the physician who at- 
tended the deceased in a professional capacity, and 
inquired of him concerning the symptons exhibited 
by the deceased, and what he had learned concern- 
ing his condition during the time of his attendance 
upon him. Counsel for the prisoner objected that 
the examination was contrarj'' to the statute, but 
the Supreme Court overruled the objection for the 

1 Matherv. Colemnn, 111 N. Y. 220; Renlhan v. Dennln, 103 N. Y.673. 
» Hoyt V. Hoyt, 112 N. Y. 493. 
• » Morris V. Morris, 119 Ind. 341; 344 (1889.) 



PARTIAL WAIVKR OP THE PRIVILEGE. Ill 

reason that it was not within the spirit and intent 
of the statute, although within the letter/ The 
matter was taken to the Court of Appeals, and 
the judgment of the Supreme Court affirmed, the 
court saying: ''That the purpose for which the 
aid of this statute is invoked in this case is so ut- 
terly foreign to the purposes and objects of the act, 
and so diametrically opposed to any intention which 
the legislature can be supposed to have had in the 
enactment, so contrary to and inconsistent with its 
spirit, which most clearly intended to protect the 
patient, and not to shield one who is charged with 
his murder, that in such a case the statute is not to 
be so construed as to be used as a weapon of defense 
to the party so charged, instead of a protection to 
his victim. '^ ' •It is not to be understood, however, 
that the statute does not apply in any criminal case. 
It may be invoked for the protection of the criminal 
in cases where the latter was himself the patient of 
the physician whose testimony is desired.' 

When it is proposed to introduce in evidence the 
testimony of witnesses who are disqualified by these 
statutes, the party who desires to claim the benefit 
of the statutes must seasonably exercise the privilege 
by objecting to the evidence at the time it is offered. 
It is too late after the examination has been insisted 
on, and the evidence has been received without 
objection, to raise the question of competency by a 
motion to strike it out.* 

§ 45. Partial Waiver of the Privilegre. — ^We have 
seen that the statutes which prohibit th^^ disclosure 

i Plerson v. People, 25 N. Y. Sup. Ot. 239. 
« Piereon v. People, 79 N. Y. 434. 
» The People v. Murphy, 101 N. Y. 126, 129. 
* Hoyt V. Hoyt, 112 N. Y- 498, 614. 



112 EXPERT TESTIMONY. 

by physicians of information acquired by them in a 
professional capacity create no absolute incompe- 
tency and give no right to the physician to refuse 
to testify, but simply confer a privilege which the 
'patient, for whose benefit the provision is made, 
may claim or waive. But assuming that the patient 
waives the privilege in the case of one physician, 
the important question presents itself, whether by 
the waiver in the case of one physician he does not 
waive the statute entirely and open up the whole 
subject rendering admissible the testimony of other 
physicians who are acquainted with the case. The 
courts, in the few cases that have thus far arisen, 
have held that the patient who waives the statute 
as to one physician does not thereby lose his right 
to insist on his privilege as respects other physicians. 
Thus, in a case where the plaintiff had three 
physicians, each one at a different time from the 
other, and allowed one of them to testify as to the 
extent and character of her injuries, she was allowed 
to insist on her privilege and exclude the testimony 
of the other two, who were called on behalf of the 
defendant.* And so where two physicians were 
called on one occasion in consultation, and the 
plaintiff waived her privilege as to one by calling 
him to testify, it was held that she did not thereby 
loose her right to insist on her privilege as against 
the other physician called to testify by the defend- 
ant.* 



1 Hope V. Troy, etc. K. K. Co., 40 Hun, 438 (1886) : ThiB court say : 
^'The defendant urges that when the plaintiff waived her right with re- 
spect to one physician she opened the case to the others, but the statute 
does not seem to permit such construction.^' To the same effect is Penn 
Mutual Life Insurance Co. y. Wiler, 100 Ind. 102. 

s Record v. Village of Saratoga Springs, 46 Hun, 460 (1887). 



OPINIONS BASED ON DECLARATIONS. 113 

§ 46. Opinions Based on Statements made out of 
Conrt and not nnder Oath.— The rule is that an ex- 
pert cannot be allowed to give his opinion based 
upon statements made to him by parties 9ut of court 
and not under oath.* His opinion to be admissible 
must be founded either on his own personal knowl- 
edge of the facts, upon facts testified to in court, or 
else upon an hypothetical question.' Hence the 
opinion of a physician, called in consultation with 
the attending physicians, cannot be received if based 
upon declarations made to him by such physicians, 
or by the wife and nurse of the patient as to his 
previous symptons or condition.* It has never been 
held that a medical expert has the right to give in 
evidence an opinion based on information which he 
has derived from private conversations with third 
parties. 

$ 47. Opinions of Physicians Based in Part on 
Declarations of Patients. — ^But the principle stated 
in the preceding section does not apply to the opin- 
ions of a physician or surgeon, based in part on 
statements made by the patient himself to the phy- 
sician, to enable the latter to determine upon the 
proper course of treatment. Upon this point the 
Supreme Court of Massachusetts says: ''The opin- 
ion of a surgeon or physician is necessarily formed 
in part on the statements of his patient, describing 
his condition and symptons, and the causes which 

1 Hurst V. The C. R. I., etc. R. R. Co., 49 Iowa, 76, 79. 

* Grand Rapids, etc. R. R. Co. t. Huntley, 38 Mich. 537; Hunt v. The 
State, 9 Texas Ct. of App. 166; Louisville, etc. R. R. Co. v. Shires, 108 
ni. 617. 

» Heald v. Tiring, 45 Me. 392 ; Wood v. Sawyer, Phillips (N. C.) , 253 ; 
Wetherhee^s Exr's. v. Wetherbee's Heirs, 38 Vt. 454; Hunt v. The State, 
9 Texas Ct. of App. 166; Louisville, etc, R. R. Co. v. Shires, 108 HI. 617, 
630. . 

1 (8) 



114 EXPERT TESTIMONY. 

have led to the injury or disease under which he 
appears to be suffering. This opinion is clearly 
competent as coming from an expert. * * The 
existence of many bodily sensations and ailments 
which go to make up the symptoms of disease or in- 
jury, can be known only to the person who experi- 
ences them. It is the statement and description of 
these which enter into, and form part of the facts on 
which the opinion of an expert, as to the condition 
of health or disease, is founded."^ An excellent 
illustration of the principle is afforded by a case de- 
cided in Wisconsin in 1879. The action was brought 
to recover damages, for an injury sustained by the 
negligence of the defendant, the plaintiff claiming 
to be lame in her hip and to suffer pain there, and 
that she was unable to use her limb as she had used 
it before the accident. That it was still so weak and 
painful as to render it unsafe for her to attempt to 
walk without the aid of a crutch. At the suggestion of 
the defendant, the plaintiff submitted to an exami- 
nation by experts for the purpose of testing the 
truthfulness of the claim, and of placing before the 
jury her real condition. The result of the examina- 
tion was that the experts found no such appearances 
as would indicate lameness or pain. As one of the 
experts testified, '*the general opinion was that we 
could not find anjiihing. The only way I could 
tell that she ached was by what she said, and how 
she looked and appeared.^' Counsel for the defend- 
ant claimed that an error was committed in permit- 
ting one of the experts, who testified as above, to 
answer the following questions: 

1 Barber v. Merriam, 11 Allen, 322, 324. See also Thompson v. Treva- 
nion, Skinner, 402; Aveson y. Kinnaird, 6 East, 188, 195, 197; Bacon v. 
Obarlton, 7 Gush. 581, 586; Denton v. State, 1 Swan (31 Tenn.), 279. 



OPINIONS BASED ON DECLARATIONS. 115 

^'Question. Do you think that you could tell 
whether or not she suffered pain by the movement 
of the hip, judging from all the examination, in- 
cluding what she said? Answer. I think I could. 
Q. Now, go on and state whether, in your opinion, 
she did suffer pain? A . She gave every indication 
of suffering pain. Q. In your opinion, did she suffer 
pain? A. Yes, sir; that is my opinion, that she 
did.': 

It was claimed that this was in effect, asking the 
witness whether he believed the statements of the 
plaintiff that she suffered pain. The Supreme Court 
held that the questions were proper. That as the 
plaintiff insisted upon the fact of lameness and pain, 
it was a question for the experts whether such pains 
and lameness were imaginary, feigned or real; and 
that to determine this, it was necessary to resort to 
other evidence than those to be derived from the 
limb itself. ' * And in such case, we think it is clearlv 
competent for the expert to give an opinion from 
the general appearance, actions and looks of the pa- 
tient, and what she says at the time in regard to 
her condition." * 

The above rulings ate clearly sustained by the 
authorities. It is entirely competent for physicians 
or surgeons to give to the jury their opinions based 
on a personal examination of the patient and on 
statements made by the patient at that time as to 
the patient's present bodily condition.' Not only 
so, but what the patient said to the physician as to 

1 Qnaife v. Chicago, etc. B. R. Co., 48 Wis. 513. 

> LonisYille, etc. B. B. Co. y. Snyder, 117 Ind. 435; Illinois Central B. 
R. Co. V. Sutton, 42 Ul. 438; Fort v. Brown, 46 Barb. (N. Y.) 366; 
Louisville, etc. B.R. Co. v. Falvey, 104 Ind. 409; Wilson v. Town of 
Granby, 47 Conn. 59, 76; Caldwell v. Murphy, 11 N. Y. 416; Denton v. 
The State, 1 Swan (Tenn), 279. 



116 EXPERT TESTIMONY. 

his present bodily condition is admissible/ although 
the physician cannot give to the jury as evidence the 
patient's history of the case, or statements in re- 
spect to the cause of the trouble, or in respect to 
past experience with it; neither can he express an 
opinion which he bases on such history or state- 
ments as to past experience.* 

But it has been held that a physician may testify 
to a statement or narrative given by a patient in re- 
lation to his condition, symptoms, sensations and 
feelings, both past and present, when such state- 
ments were received during, and were necessary to 
an examination with a vie;w to treatment, or when 
they are necessary to enable him to give his opinion 
as an expert witness.* Moreover, it has been held 
that the opinion of the physician and the patient's 
accompanying statements are admissible, although 

1 state y. Gedicke, 43 N. J. L. 86; Illinois CeDtral R. R. Co. v. Sutton, 
42 m. 438; Cornelison y. Commonwealth, 84 Ky. 593; Mayo y. Wright, 
63 Mich. 32; Harris y. Detroit City Railway Co., 76 Mich. 227. 

s A. T., etc. R. R. Co. y. Frazier, 27 Kan. 463; Heald y. Thing, 45 Me. 
392; The People y. Murphy, 101 N. Y. 126, 131. In Insurance Co. y. 
Mosley, 8 Wall. 397, 405, the court say \ ^^The declarations of the party 
himself are receiyed to ptoye his condition, ills, pains, and symptoms, 
whether arising from sickness, or an injury by accident or yiolence. If 
made to a medical attendant, they are of more weight than if made to 
another person. But to whomsoeyer made, they are competent eyi- 
dence. * * It must relate to the present and not the past. Anything 
in the nature of narration must be excluded. It must be confined strictly 
to such complaints, expressions, and exclamations, as furnibh eyidence 
ot A present existing pain or malady.'' And see Towle y. Blake, 48 N. 
H. 92; Taylor y. Railway, 48 N. H. 305; Hyatt y. Adams, 16 Mich. 180, 
200; Johnson y. McKee, 27 Mich. 471; Elliott y. Van Buren, 33 Mich. 
49; United States y. Faulkner, 35 Fed. Rep. 730. 

8 The Cleyeland, etc. R. R. Co. y. Newell, 104 Ind. 264, 271 (1886) ; 
Teatman y. Hart, 6 Humph. (Tenn.) 374; Looper y. Bell, 1 Head 
(Tenn.), 373. In Yeatman*s case, «t«pra, the court say: '^The physi- 
cian says the history of the disease is a necessary element in determin- 
ing its nature and character. That tliis is true, the obseryation and 
common sense of eyery man will confirm.^' See also Ecles y. Bates, 26 
Ala. 655. 



OPINIONS BASED ON DECLARATIONS. 117 

the examination of the patient and the statements 
were made after the commencement of the action and 
not wholly with a view of receiving medical treat- 
ment/ And there also is authority for saying that 
statements made to the experts by the patient are 
admissible, although made in the course of an ex- 
amination voluntarily applied for after suit com- 
menced, and which examination was had with no 
other purpose ih view than that the examining phy- 
sician should thereby become qualified to testify as 
a witness.' But upon this question the authorities 
are in conflict. Thus, it has been held in the Su- 
preme Court of Michigan, that exclamations of 
pain were properly excluded from evidence, when 
they were made at a medical examination, con- 
ducted after the controversy arose, and with no 
view to medical treatment but for the purpose 
of obtaining testimony.* In that case the court 
say: "It is not necessary to consider whether 
there may not be properly received, in some cases, 
the natural and usual expressions of pain made 
under circumstances free from suspicion, even post 
liten molam. The case must at least be a very plain 
one which will permit this." This case has been 
followed in the Supreme Court of Connecticut, where 
Buch evidence was held ''clearly inadmissible."* 
Of course a physician will not be allowed to testify 

1 The Cleveland, etc. R. B. Co. v. Newell, 104 Ind. 264, 271. 

s Kent ▼. Town of Lincoln, 32 Vt. 592 (1860) ; Matteson y. New York 
Central B. B. Co., 36 N. Y. 487, 491 (iS^) ; State v. Gedicke, 43 N. J. 
Law, 86 (ISSl). 

< Grand Bapids, etc. B. B. Co. ▼. Huntley, 38 Mich. 637, 545. 

^ Darrigan v. New York, etc. B. B. Co., 52 Conn. 285, 309, where the 
court say: "If otiArwise easy facilities would be furnished for parties 
to introduce in evidence their own declarations, made out of court, not 
under oath, and where the temptation to exaggerate, and even to utter 
untruths, would be pretty strong.*^ 



118 EXPERT TESTIMONY. 

as to statements made to him, in the absence of the 
plaintiff, by the latter' s attending physician, con- 
cerning the character of an injury sustained by the 
plaintiff/ And statements by a party as to the 
manner of his injury, not necessary to diagnose his 
case, cannot be given in evidence by an attending 
physician any more than they could be by a non- 
professional man.* 

$ 48. Opinions as to the Condition of a Patient.—' 
A physician may give his opinion as to the actual 
condition of a patient whom he has visited,' or whose 
symptoms and condition have been described by 
others.* He may state his belief that a woman had 
been delivered of a child within three or four days, 
and state his opinion as to the condition of her mind 
at the time of giving birth to the child.* And he 
may state what effect cer1;3,in drugs would have upon 
a person in a particular condition.* But it has been 
held that he cannot be asked his opinion, from the 
condition of a person whom he has not seen, as de- 
scribed by witnesses whose testimony was conflict- 
ing, whether the attention of a physician was neces- 
sary.^ He may be asked whether an ascertained 
condition of suffering or bad health might have been 
caused by a previous injury. * 

1 City of Goshen v. England, 119 Ind. 368. 

s Dundas v. City of Lansing, 75 Mich. 499. 

s Bush ▼. Jackson, 24 Ala. 273; Bennett v. Fail, 26 Ala. 606; Knox v. 
Wheelock, 56 Vt. 200; Spear v. Hiles, 67 Wis. 367; Myers y. Sute, 84 
Ala. 11. 

^Livingston v. Commonwealth, 14 Gratt. 592; Cooper v. State, ^ 
Texas, 336, 340. 

« State V. Matthews, 66 N. C. 113. 

« Hoard v. Peck, 56 Barb. (N. Y.) 202, 210. That the opinions of 
physicians are admissible as to the ordinary effect of medicines, see also 
Cooper V. State, 23 Texas, 336, 340; Batten v. State, 80 Lid. 394. 

7 Wilkinson v. Mosely, 30 Ala. 562. 

8 Turner v. City of Xewburgh, 109 N. Y. 301. 



OPINIONS AS TO CAUSE OP DEATH. 119 

§ 49. Opinions as to Cause of Beath. — The Opin- 
ions of physicians are also received as to the cause 
of the death of any particular person; such opinion 
being founded either upon a personal knowledge of 
the facts of the case, or upon a statement of the 
symptoms of the disease as detailed by others.' If 
such opinions were not received, it would be impos- 
sible in many cases to prove the cause and manner 
of death, especially in those cases where there was 
no one present at the time of death. In such cases 
the opinions of physicians and surgeons who have 
made a post-mortem examination of the deceased, 
seem to be necessary in order to ascertain the facts 
and clear up the mystery. An experienced physician 
has been allowed to give his opinion that deceased 
was dead before a certain train passed over the body.' 
On the trial of an indictment for infanticide, where 
there were no marks of violence on the dead child, 
a physician hfs been allowed to testify that there 
were several modes of causing death without leaving 
upon the body any evidence of the means employed.* 

A medical expert has been allowed to give in evi- 
dence his opinion whether a still-born child could 
have been bom alive if medical assistance had been 
received in time.* He may state his opinion that 
death was caused by drowning.* And where the 

1 Pitts V. state, 43 Miss. 472; State y. Bowman, 78 N. 0. 509; Shelton 
V. State, 34 Tex. 666; State v. Baptiste, 26 La. Ann. 134, 137; State v. 
Smith, 32 Me. 370; Mitchell y. State, 58 Ala. 418; State y. Pike, 65 Me. 
Ill, 114; Polk y. State, 36 Ark. 117, 124; Powell v. State, 13 Texas Ct. 
of App. 244; Boyle v. State, 61 Wis. 440; Newton y. The State, 21 Fla. 
56; People v. Barker, 60 Mich. 277; People v. Foley , 64 Mich. 148 ; 
Schneider y. Manning, 121 111. 376. 

« The State y. Clark, 15 S. C. (N. S.) 403. 

8 State y. Morgan, 95 N. 0. 641. 

* Telegraph Co. y. Cooper, 71 Texas, 507. 

B People y. Hare, 57 Mich. 506; People y. Barker, 60 Mich. 277. 



120 EXPERT TESTIMONY. 

attending physicians were dead at the time of trial, 
it was held competent lor the wife of the deceased to 
state the declarations made to her at the time by the 
physicians as to the cause of death. The declara- 
tions made by them were in the ordinary line ot 
their professional duty, and as such were receivable 
in evidence to establish the fact that they entertained 
such opinion as they stated.^ 

In a case in Arkansas, where the subject of inquiry 
was as to the cause of death, the court considered 
the mode of examination which should be pursued 
in such cases. The case was one of alleged poison- 
ing, and it was held not erroneous to ask a physician 
to describe the symptoms of strychnine in the human 
system, and stop and allow the jury to compare the 
symptoms testified to by the witness with those given 
by the expert, as to the usual effects of strychnine, 
as afibrding some tendency to prove the manner of 
death. ''But," said the court, ''although not erro- 
neous, such a course of examination is eminently 
unsatisfactory, and liable to mislead. The proper 
course is to take the opinion of the expert upon the 
facts given in evidence, not as to the merits of the 
case, or the guilt or innocence of the prisoner, but 
as to the cause of the death, so that the jury may 
first determine whether any crime has been com- 
mitted b\^ any one at all."* 

In a case, where it was objected that the physician 
who made the post-mortem examination of the de- 
ceased could not express an opinion that death re- 
sulted from concussion of the brain, unless he had 
opened the head and examined the brain, the court 

1 McNair v. National Life las. Co., 20 N. Y. Sup. Ct. 146. See, too, 
Stephen's Dig. of Evidence, Art. 27, p. 33. 
« Polk ▼. State, 36 Ark. 117, 124. 



NATURE AND SYMPTOMS OF DISEASE. 121 

said: ''We are aware of no law that required him 
to open the skull and examine the brain before he 
could be permitted to express such an opinion to 
the jury. Of course, the opinion of a medical wit- 
ness in such case would have more or less weight 
with the jury, according to the extent of the exami- 
nation, the professional rank and character of the 
witness."^ 

^ 50. The Nature and Symptoms of Disease. — ^The 
opinions of witnesses skilled in the science and prac- 
tice of medicine, are admissible as to the nature of 
the disease a person is afflicted with,* and as to how 
long he has probably been afflicted with it.* Their 
opinions are also received as to the severity and 
ordinary duration of the disease,* as well as to the 
probability of its recurrence,* and the effects upon 
the general health.* They are also permitted to tes- 
tify as to the cause of the disease and the remedy for 
it,' and to describe the symptoms of any particular 

1 Ebos y. The State, 34 Ark. 520. 

> Napier ▼. Ferguson, 2 P. ft B. (New Bmos.) 415; Polk v. State, 36 
Ark. 117, 124; Tatum v. Mohr, 21 Ark. 354; Hook y. StoyaU, 26 Ga. 704; 
Flynt y. Bodenhamer, 80 N. C. 206, 208^ Jones y. White, 11 Humph. 
(Tenn.) 268; Pidcock y. Potter, 68 Pa. St. 342, 344; Lush y. McDaniel, 

13 Ired. (N. 0.) 485; Washington y. Cole, 6 Ala. 212; Linton y. Hurley, 

14 Gray (Mass.), 191 ; Cooper y. State, 23 Tex. 336, 340; State y. Terrill, 
12 Bich. (S. 0.) 321. 

8 Lush y. McDaniel, 13 Ired. (S. C.) 485; Bennett y. Fail, 26 Ala. 605; 
Edlngton y. .^tna Life Ins. Co., 77 N. T. 564, 568; Tatum y. Mohr, 21 
Ark. 354; Eekles y. Bates, 26 Ala. 655. 

< Linton y. Hurley, 14 Gray (Mass.), 191 ; Willey y. Portsmouth, 35 N. 
H. 303, 308; Jones y. Utica, etc. R. B. Co., 40 Hun (N. Y.), 349. 

» FUer y. N. Y. Central B. R. Co., 49 N. Y. 42 ; Tozer y. N. Y. Central 
R. R. Co., 38 Hun (K. Y.), 100. 

• Pidcock y. Potter, 68 Pa. St. 342, 344; Flynt y. Bodenhamer, 80 N. 
C- 205, 208; Filer y. N. Y. Central R. R. Co., 49 N. Y. 42; Anthony y. 
Smith, 4 Bos. (N. Y.) 503. 

^Matteson y. N. Y. etc. R. R. Co., 62 Barh. (N. Y.)364; Jones y. 
Tucker, 41 K. H. 546; Newton y. State, 21 Fla. 56; Schneider y. Man- 
ning, 121 m. 376; McClaln y. Brooklyn City R. R. Co., 116 N. Y. 459, 



122 EXPERT TESTIMONY. 

disease/ explaining its characteristics,* and that it is 
contagious.' An attending physician may be asked 
whether he ever saw any appearance of a certain 
disease in the family of a particular person,* and 
whether before a certain injury he considered the 
person to be a hearty and vigorous man;* and he 
may state his opinion that a person's ill-health re- 
sulted from a certain injury.* A physician may tes- 
tify as to the extent of certain injuries/ whether the 
injury is permanent or not/ the probability of re- 
covery/ or the probable results of the injury." 

In a case in New York, in which it is held that 
experts may testify as to future consequences which 
are expected to follow an injury, it is laid down that 
to authorize such evidence the apprehended conse- 

408; Cooper v. State, 23 Tex. 336, 340; Napier v. Fergueon, 2 P. & B. 
(New Brung.) 415: Magee v. Ci'y of Troy, 48 Hun (N. Y.), 383; Brant 
V. City of Lyons, 60 Iowa, 172. 

1 Welch V. Brooks, 10 Rich. (S. C.) 124; State v. TerrlU, 12 Rich. (S. 
C.) 321 ; United States v. McGlue, 1 Curtis C. C. 1, 9; Napier v. Fergn- 
Bon, 2 P. <& B. (New Bruns.) 415; Pitts v. State, 43 Miss. 472; People v. 
Rcibinson, 2 Parker Cr. Cas. (N. Y.) 236; Lake v. People, 1 Parker Cr. 
Cas. (N. Y.) 495. 

2 Jones y. White, 11 Hamph. CTenn.) 268; Washington v. Cole, 6 Ala. 
212. 

3 Moore v. State, 17 Ohio St. 521, 526. 
^ Morrissey v. Ingham, 111 Mass. 63. 
A Sanderson v. Nashua, 44 N. H. 492. 

<<Loui8yille, etc. R. R. Co. v. Shires, 108 III. 617; Jones v. Utica, etc. 
R. R. Co., 40 Hun (N. Y.), 349; Matteson v. N. Y. Central R. R. Co., 35 
N.Y.487,492. 

7 A., T. & S. F. R. R. Co. V. Frazler, 27 Kan. 463. 

8 Buel V. N. Y. Central R. R. Co., 31 N. Y. 314, 320; Filer v. N. Y. 
Central R. R. Co., 40 N. Y. 42, 46; Peoria, etc. R. R. Co. v. Berry, 17 
Brad. (HI.) 47; Magee v. City of Troy, 48 Hun (N. Y.),383; Nobles- 
ville, etc. R. R. Co. y. Gause, 76 Ind. 142; City of Goshen v. England, 
119 Ind. 368; Turner v. City of Newburgh, 109 N. Y. 301. 

• Griswold v. N. Y. Central R. R. Co., 115 N. Y. 61. 

10 Louisville, etc. R. R. Co. v. Lucas, 119 Ind. 583, 592; McClaln v. 
Brooklyn City R. R. Co., 116 N. Y. 459, 467; Lincoln v. Saratloga, etc. 
R. R. Co., 23 Wend. 425; Abbott v. Dwinnell, 74 Wis. 514. 



MEDICAL TESTIMONY RELATING TO WOUNDS. 123 

quences must be such as in the ordinary course of 
nature are reasonably certain to ensue, and that con* 
sequences which are contingent, speculative, or 
merely possible, cannot be proved/ An attending 
physician who observed his patient's symptoms may 
state whether such patient suffered any pain.' But 
one not an expert could testify to that point.* And 
a physician may state whether, in his opinion, a 
person's arm had been broken.* 

^ 51. Medical Testimony Belatlnsr to Wounds.— 
In law the term *' wound " is usually considered to 
mean a breach of the skin, or skin and flesh, by ex- 
ternal violence. The testimony of physicians and 
surgeons on the subject is often of the very greatest 
importance. For instance, an important question 
frequently arising is whether a certain wound was 
inflicted before or after death. While in the case 
of incised wounds inflicted immediately after death 
the resemblance is so close to wounds inflicted im- 
mediately before death that the two cases are not 
distinguishable, yet if a few hours elapsed either be- 
fore or after death before the infliction of the wound, 
medical testimony can reveal the fact. If the wound 
was inflcted after death the edges of the wound are 
usually found in close opposition, there is compara- 
tively little efiusion of blood, little or no coagula 
around the wound, and no evidence of repair.* And 
so in the case of gunshot wounds it is possible to 
say whether the discharge took place near the body, 
in which case the injured tissues would be more or 

1 Strohm v. N. Y. etc. R. R. Co., 96 N. Y. 305. See this case ex- 
plained in McClain v. Brooklyn City R. R. Co., 116 N. Y. 459, 467. 
« Chicago, etc. R. R. C^. v. Martin, 112 111. 16. 
^ See section 4. 

* Johnson v. .Central R. R. Co., 56 Vt. 708. 

• See .E well's Med. Jour., p. 31. 



124 EXPERT TESTIMONY. 

less scorched, blackened or studded with grains of 
powder, as well as the entrance wound larger, ragged 
and excavated. So it is possible to show whether a 
wound was caused by a bullet at full speed, which 
perforates or penetrates, or whether at lessened 
speed, which crushes and lacerates. And so it 
may be shown whether a wound was produced 
by a sharp instrument drawn across the part, in 
which case the edges would be straight; or whether 
it was produced by a blunt instrument, in which 
case the edges would be more or less serrated or ir- 
regular. Many other illustrations might be given 
to show the importance of this class of testimony, 
if it were necessary to do so. We will, however, pro- 
ceed to a consideration of the principles of law 
which have been established in reference to this 
class of testimony. 

^ 52. Who are Competent to Testify on the 
Subject of Wonnds. — 1. If the witness is a physi- 
cian or surgeon he is not incompetent to ex- 
press an opinion, because of his want of obser- 
vation of any case like the one in question.^ 
Accordingly a physician or surgeon who had never 
seen a wound made with a knife or dirk has been 
held competent to express an opinion that the wound 
in question was made with a dirk.' In a similar case 
a similar ruling was made, the court declaring that 
the want of observation of exactly such a case as 
the one in question did not affect the competency 
of the witness, though it might lessen the credit 
given to his testimony.* 

2. And in accordance with a principle elsewhere 

1 See sectloDS 18 and 19. * 

« Mendum v. Commonwealth, 6 Rand. (Va.) 704. 
« State V. Clark, 12 Ired. (N. C.) 161, 155. 



WHO COMPETENT TO TESTIFY. 125 

stated ^ it is not necessary to qualify a medical wit- 
ness to testify as an expert on the subject of wounds, 
that he should have actually seen the wound in 
question. His testimony may be based upon a de- 
scription of the wound given in court by those who 
saw it.' 

3. We have seen that medical witnesses have 
been held competent to testify as experts concerning 
wounds even though they may be without personal 
experience of like cases. On the other hand wit- 
nesses who are not physicians or surgeons, but who 
have had experience with wounds of alike nature, 
have been held, in some cases, incompetent to give 
expert testimony upon the subject. Thus, a wit- 
ness who stated that he was acquainted with the 
difference in appearance between gunshot wounds 
and wounds made with a knife or sharp instru- 
ment, and that his knowledge was derived from ex- 
perience and observation, has been held incompetent 
to express an opinion whether the wound in ques- 
tion, which he had seen, had the appearance of a 
gunshot or pistol-shot wound, or of having been 
made with a knife or sharp instrument.* In a case 
where a witness stated that he was not a physician 
or surgeon, but had been an officer in the war and 
had seen the range of balls in a good many gunshot 
wounds, it was held that he was incompetent to 
testify how the balls ranged.* It has been held that a 
non-professional witness, who had seen the wounded 
person, could describe the wound as inflamed and 
tender to the touch, and could testify that such per- 

1 See Bection 

* State V. PoweU, 7 K. J. Law, 295; Page ▼. State, 61 Ala. 16. 

' Caleb y. The State, 39 Miss. 721. 

4 Bash V. state, 61 Ala. 89. 



126 EXPERT TESTIMONY. 

son complained of stifl&iess in the fingers, and in the 
neck and in the jawsj that since the injury the wit- 
ness had observed that the wounded man could not 
use his arm as he could before/ And in general it 
may be said that an ordinary witness is competent to 
describe the appearance of a wound which he has 
seen.* But while he may give the description of the 
wound he is incompetent to say how '*it appears to 
have been made,'" or to express an opinion as to the 
direction from which the blow came/ And the opin- 
ion of an eye-witness that a fatal blow was accidental 
is inadmissible.* 

A gunsmith who for years had studied and exper- 
imented to ascertain how far guns and muskets would 
carry shot compactly, and who stated that he could 
tell how far a person killed by a charge of shot from 
a musket must have been from the musket when 
it was fired, was held competent to testify to 
that fact as an expert.* On the trial of one 
indicted for murder where a witness testified that he 
had made certain experiments upon a dynamometer, 
an instrument for measuring the force of blows and 
the weight of falling bodies, by striking it with a bat of 
substantially the same form and weight as that with 
which the government contended the murder was 
committed, it was held that the court might, in its 
discretion, properly reject such testimony, unless the 
experiments were shown to have been made under 

1 Craig V. Gerrish, 68 N. H. 513. 

* The People v. Hong Ah Duck, 61 Cal. 387; McKee v. The State, 82 
Ala. 32. And see section 4. 

» state V. Cross, 68 Iowa, 180. 

* McKee y. The State, 82 Ala. 32. 

ff state V. Vines, 93 N. C. 493. And in this case it was also held im- 
proper to ask the question of a medical man. 
^ State V. Jones, 41 Kan. 309. 



TESTIMONY CONCERNING WOUNDS. 127 

conditions the same as those existing in the case on 
trial/ 

^ 53. What Testimony Is Admissible Concerninsr 
Wounds. — 1. It is well settled that medical experts 
may give an opinion as to the means hy which a 
wound was inflicted.* Thus a practicing physician 
or surgeon may be asked his opinion as to the kind 
of instrument used in inflicting wounds,* as whether 
a wound was produced with a blunt or a sharp in- 
strument;* and whether the fractures on the skull of 
the deceased, produced in court, were caused by 
blows from a gun shown to the witness;* also whether 
the skin of a person's throat had been cut by a sharp 
instrument, or torn.* It has been held proper to 
show that the corner of a hatchet's edge, if held by 
a person standing in front of the deceased while he 
was on his feet, exactly fitted the hole in the skull. ^ 
A surgical expert who had examined the wound, 
has been allowed to testify, whether, from its form 
and appearance, it could have been produced by a 
razor;* and whether certain injuries to the head 
could have been produced at the same time, and 
by one blow;* also whether the wounds could have 
been inflicted accidentally;^* and whether the wound 

^ Commonwealth v. Piper, 120 Mass. 185. 

« WiUiams v. The State, 64 Md. 384, 392; Territory v. Eagan, 3 Dak. 
119. 

» Davis V. State, 38 Md. 16, 35; State v. Porter, 34 Iowa, 131 ; State v. 
Ohec Qong, 17 Greg. 638. 

< State V. Morphy, 33 Iowa, 272. 

• Gardner v. People, 6 Parker Or. Gas. 155. 

• State V. Clark, 12 Ired. Law (N. C.), 152. 
^ Colt V. People, 1 Parker Cr. Cas. 611, 620. 

<» State y. Knight, 43 Me. 1, 130. And see Batten v. The State, 80 Ind. 
394, 400, where an expert was allowed to say whether intestines were cut 
by a knife. ^ 

• Commonwealth v. Piper, 120 Mass. 185. 
w Davis V. State, 38 Md. 15, 37. 



128 EXPERT TESTIMONY* 

could have been produced by coming in contact 
with a body of hard material, where there were no 
sharp angles or points.^ A physician and surgeon 
of experience with gunshot wounds, may testify 
whether a wound was inflicted by a shot from a 
gun,' and he may explain to the jury why the wound 
looks smaller than the ball which caused it.* Med- 
ical experts are competent to testify, from the appear- 
ance of a wound through the hand, whether or not 
it was made while the hand was pressed over the 
muzzle of a revolver.* And they may testify as to 
the deadly character of the weapon used in the per- 
petration of a homicide;* and whether a certain 
instrument, would, in the hands of a man of ordi- 
nary strength, and used as a bludgeon, produce the 
wounds described and be likely to cause death.* In 
a case where there were two cuts through the under 
lip of the deceased made by her lower teeth, the 
prosecution claiming that they were caused by the 
pressure of the lower lip while the prisoner was 
smothering her, the defense claiming that they 
might have been made by the deceased while in a 
spasm, a physician was allowed to aaj^ whether they 
could have been made in the absence of some cause 
outside of another than the deceased herself.^ 

It has been held to be improper to ask an expert 
what caused a wound, the proper form of the ques- 
tion being to ask what might have caused it. 

1 state V. Pike, 65 Me. Ill, 114. 

«Ra8h V. The State, 61 Ala. 90; Colt v. The People, 1 Parker's Or. 
Cas. 611, 620. 
« Schlenckerv. The State, 9 Neb. 260. 
* State V. Cross, 68 Iowa, 180. 
' Banks v. The State, 13 Texas Ct. of App. 182. 
« Waits V. The Stote, 13 Texas Ct. of App. 169. 
7 People V. WlUson, 109 N. Y. 346. 



TESTIMONY CONCERNING WOUNDS. 129 

What caused a wound is a fact for the jury, and not 
mere matter of opinion.' In accordance with this 
principle in a case where counsel after stating 
hypothetically the condition of the body of the de- 
ceased, the character of the wounds, and other 
matters, asked the witness, who was a physician, 
how the wounds were probably made, the evidence 
was held rightly excluded. The court said: '*It 
sought for an expression of opinion based upon mat- 
ters which were to be weighed and considered by 
the jury, and determined by the exercise of their 
own judgments, and not upon the opinion of an- 
other. The matters upon which the question was 
based were not peculiarly within the knowledge of 
the witness or of the profession to which he be- 
longed." ' A similar ruling was had in a case in 
Texas when the following question was propounded 
to a physician: '*What is your opinion, from the 
examination you made of the body, as to how the 
injury you saw, to- wit: the arm broken, the neck 
broken and the skull crushed, was done?" This 
question was objected to because **it called for the 
opinion of the witness as an individual, and not as 
an expert; was mere speculation on the part of the 
witness, and wp,s matter about which the jury were 
as competent to judge as the witness." The trial 
court overruled the objection, but the Court of Ap- 
peal held that the objection should have been sus- 
tained upon the grounds urged.' 

2. Medical experts may express an opinion as to 



1 People V. Hare, 57 Mich. 505. 

* State V. RalQsberger, 74 Iowa, 196, 204. 

« Steagald v. State, 24 Tex. Ct. of App. 207, 214. 



130 EXPERT TESTIMONY. 

the natural and probable result of wounds,* and as 
to whether they were suflScient to cause death.' 
Thus, a medical witness may testify that a wound 
was necessarily mortal.' And such a witness may 
testify that he should expect a greater injury from a 
direct blow, than from a glancing one.* And in a 
case where a person has been bitten in the thumb by 
the defendant a medical expert who had examined 
the wound has been allowed to state the tendency 
or danger of that kind of wound.* Medical experts 
have been allowed to give their opinion as to whether 
the. effects of the wound are permanent in their 
nature,' and as to the probable effect of the wound 
on the general health of the injured person, whether 
in consequence of it he is liable to any particular 
disease.^ The opinion of an expert has been re- 
ceived as to which of two wounds, either by itself 
necessarily fatal, actually caused the death of the 
deceased;' and as to the amount of force required to 
break a person's skull, his opinion being based on 
his familiarity with anatomy, and his knowledge of 



1 People V. Wlllson, 109 N. Y. 345, 363; Williams v. State, 64 Md. 384; 
Curry v. State, 5 Neb. 412; State v. Porter, 34 Iowa, 131; Page v. State, 
61 Ala. 16; Kline v. K. C, St. J. etc. R. Co., 50 Iowa, 656, 660; State v. 
Stoyell, 70 Me. 360; Louisville, etc. R. R. Co. v. Lucas, 119 Ind. 583. 

» Walte V. The State, 13 Texas Ct. of App. 169; State v. Powell, 7 N. 
J. Law, 295; Livingston v. Commonwealth, 14 Gratt. (Va.) 592; State 
V. Morphy, 33 Iowa, 272; Ebos v. State, 34 Ark. 520; State v. Jones, 68 
N. C. 443; SUte v. Matthews, 66 N. C. 113. 

» Batten v. The State, 80 Ind. 394, 399. 

4 Powers V. Mitchell, 77 Me. 361. 

« Rinehart v. Whitehead, 64 Wis. 42, 44. 

•Wilt V. Vickers, 8 Watts (Pa.), 227; Rowell v. City of Lowell, 11 
Gray (Mass.), 420; Noblesville, eti*. R. R. Co. v. Cause, 76 Ind. 142; 
Maeer v. Third Avenue R. R. Co., 47 N. Y. Superior Ct. 461. 

^ Montgomery v. Town of Scott, 34 Wis. 338. 

8Eggler V. The People, 56 N. Y. 642. 



TESTIMONY CONCERNING WOUNDS. 131 

the structure, thickness and strength of the human 
skull generally/ 

3. Medical experts may express an opinion as to 
the time when a wound was inflicted. 

Thus, they may express an opinion as to whether 
a wound was inflicted before or after death.' And 
they have been allowed to testify whether the fract- 
ure of a skull had been recently made, in a case 
where the body was found six months after the per- 
son's disappearance.' 

4. A physician may give his opinion as to the 
direction from which a blow was delivered. Thus 
a witness who had made a post-mortem examination 
of the body, and had stated that it enabled him to 
form an intelligent opinion on the subject, testified 
that the blow was delivered from behind and above 
the head of the person struck, and from the left 
towards the right.* And it has been held proper to 
ask a physician the following question: "Assuming 
that the jury should believe that the prisoner and 
deceased were about the same height, and that the 
pistol was fired by the prisoner in the manner and 
position testified to by the State's witnesses; what, 
in your opinion, would have been the range of the 
shot after entering the skull, taking into considera- 
tion the bone, muscles and other substances in the 
head?" * It has, however, "been held that a physi- 

1 Kennedy v. People, 39 N. Y. 245. 

•State V. Harris, 63 N. C. 1; Shelton v. State, 34 Texas, 666; People 
V. WlUson, 109 N. Y. 345, 353; People v. Hare, 57 Mich. 506. 

« Lindsay v. The People, 63 N. Y. 143. 

* Hopt V. Utah, 120 U. S. 431. And see State v. Jones, 68 N. C. 443; 
Territory v. Eagan, 3 Dak. 119. But see McEee v. The State, 82 Ala. 
32,35. 

' State V. Keene, 100 N. C. 509. And. see Commonwealth v. Lenox, 3 
Brewster, 249. 



132 EXPERT TESTIMONY. 

cian or surgeon is not competent to express an opin- 
ion as to the position of the body when the blow 
was struck/ And it has been held improper to ask 
a witness, who was a physician, how the wounds 
upon the defendant were probably made. The court 
said: *'The matter upon which the question was 
based were not peculiarly within the knowledge of 
the witness or of the profession to which he be- 
longed.'" 

For the purpose of explaining and rendering 
his evidence intelligible to the jury, an expert 
may be allowed, in describing wounds, to make use 
of plates and diagrams, although not claimed to be 
strictly accurate, and not intended to be used as 
evidence.* 

In the trial of a person indicted for murder, 
counsel for the prisoner insisted that experts 
should have been summoned to show that the 
wound inflicted was dangerous, or mortal, or caused 
death. The court held that no such testimony was 
necessary, as it appeared that the deceased was a 
strong and apparently healthy man, who took to his 
bed immediately after the wound, suffered intensely 
for two days, and then died.* 

§ 54. Detection of Poison by Experts. — In En- 
gland, in 1530, the ofiense of poisoning was made 
high treason, and offenders were excluded from ben- 
efit of clergy and were to be boiled to death. This 
was not alone due to the fact that of all species of 
death thq^t by poison was considered the most de- 
testable as being of all others the most difficult to 

1 Kennedy v. The People, 39 N. Y. 246, 266. 
> State V. Rainsbarger, 74 Iowa, 196, 20^. 
s State V. Knight, 43 Me. 1, 130. 
* State V. Murphy, 9 Nev. 394. 



DETECTION OF POISON BY EXPERTS. 133 

prevent by courage or forethought, but it was be- 
cause, in the state of knowledge that then existed, 
it was impossible, by chemical analysis, to determine 
the presence of the poisonous substance in the human 
body. At the present time, however, there is thought 
to be no poison accessible to the public which can- 
not be detected by modern methods of research,^ al- 
though it may not be possible to find it actually 
present in the body in all cases. The time within 
which it is possible to detect the presence of the 
poison in the body depends, of course, on the nature 
of the poison employed. *In the case of metallic 
poisons there is probably no limit to the time within 
which, after the demise of the patient, their presence 
may not be discovered. Some of the vegetable 
poisons, on the other hand, are so volatile that in a 
short time they entirely disappear. Thus a standard 
medical writer declares of prussic acid: ''Assuming 
that a small but fatal dose has been administered, 
and that the dead body has been exposed or buried 
•for a few weeks, it is not probable that any of the 
poison would be found by chemical analysis. The 
odor may entirely disappear in a week, and the 
longest period at which the poison itself has been 
found in the body is seventeen days.''* The same 
writer also gives instances of poisoning by opium, 
when it has been impossible to find a trace of meconic 
acid or of morphine in the contents of the stomach. 
And he states that ''it may be set down as the ex- 
ception to the rule to find this poison in the dead 
body."* On the other hand, arsenic has* been de- 

1 1 Or. Law Ma|(. 294, article by R. Ogden Doremus, M. D., LL.D. 
* Taylor on Poisons, p. 603. 
«iWd. p. 554. 



134 EXPERT TESTIMONY. 

tected ten years after the death of the victim/ But 
it is not always necessary to find poison in the body 
to determine that death was caused by poison. That 
fact may appear from the symptoms preceding death, 
and from the appearance of the body and the condi- 
tion of the organs.* 

Experts are, of course, allowed, after having made 
a chemical analysis, to testify as to the presence of 
poison in the stomach or internal organs of the 
body.' 

When it is claimed that death resulted from the 
administration of poison, the expert testimony may 
be both chemical and medical. But an expert in 
one of these branches is not necessarily an expert in 
the other.* 



1 Ibid. 374. 

> ^^It is now a well known and admitted fact, that a person may die 
from poison, and no poison be foand by chemical analysis in the body. 
There is a popular but erroneous notion that, if poison cannot be pro- 
duced from a dead body in a visible and tangible form, then, supposing 
proper skill to have been employed, the only inference to be drawn is, 
that no poison was taken, and that death was caused by disease. This 
would be bringing the question of death from poison to a very simple 
issue indeed. It would be casting aside physiology and pathology, and 
requiring oui law authorities to place entire and exclusive confidence in 
the crucible and test-tube of the chemist, * * * the allegation that 
no person can die from poison, except the poison be found in the body, 
is a mockery, a delusion and a snaie, admirably adapted to cover a 
multitude of secret deaths from poison, which, but for this dogma, 
might be revealed by pathology and physiology. It is all the more 
dangerous, because the history of crime shows us that the arts of the 
murderer, especially of the scientific or professional murderer, are daily 
becoming more refined. I might add largely to the list of poisons which 
either by their nature, by their tremendous power in very small doses, 
or by the mode in which they are introduced into the system, would 
infallibly produce death without leaving a physical or chemical trace of 
their presence in the body.'^ Taylor on Poisons, p. 170. 

« State V. Bowman, 78 N. C. 609, 510. 

4 People V. Millard, 63 Mich. 63, 74. 



ANALYSIS OF POISON NOT NECESSARY. 135 

$ 55. Who are Experts in the Detection of Poi- 
sons. — 1. A chemist who has made an analysis of a 
substance may testify as to its ingredients.^ 

2. A chemist and toxicologist, although he is not 
a physician or surgeon, can testify as to the eflFect of 
a certain poison on the human system.* 

3. A physician may testify as to the eflfect of cer- 
tain poisons on the human system.* 

For example, he may testify as to the symptoms 
which appear upon the administration of any partic- 
ular poison.* Aiyi he may state that in his opinion 
death was caused by the administration of poison.* 
In the case last cited the physician, after describing 
the symptoms, gave his opinion that death resulted 
from arsenic, but that he would not have formed 
such an opinion had he not been informed there was 
arsenic in the house; that learning that fact he 
reached his conclusion from observation of the symp- 
toms of the case. 

4. The right of a physician to testify as to the re- 
sult of a chemical analysis has been recognized,* but 
the mere fact that he is a physician does not alone 
qualify him to give evidence as an expert, when the 
question is as to the contents of the human stomach 
as revealed by a post-mortem examination with the 
view of ascertaining the presence of arsenic' 

§ 56. Chemical Analysis of Poison not Necessary, 
When. — It is held that it is not always essential that 

1 Commonwealth v. Hobbs, 140 Mass. 443 ; Commonwealth y . Een- 
drick, 147 Mass. 444. 

> The State v. Cook, 17 Kan. 392. 

« The State v. Terrlll, 12 Rich. (S. C.) 321. 

* People y. Robinson, 2 Parker's Cr. Cas. 236; Polk y. State, 36 Ark. 
117, 124. 

> Mitohell y. State, 58 Ala. 418. 

• State y. Hinkle, 6 Iowa, 380. 

7 State y. Cole, 63 Iowa, 696. And see section 57. 



136 EXPERT TESTIMONY. 

there should be a chemical analysis of a mixture, in 
order to qualify an expert to express an opinion as 
to its ingredients, and to its being a poison/ In the 
case cited, which was the trial of a prisoner indicted 
for administering a poisonous drug, a bottle was 
produced and shown to a medical expert which con- 
tained the mixture administered by the defendant; 
he stated that he had made no chemical analysis of 
its contents, but thought he could tell its ingredients 
from its smell, taste and appearance. He was 
allowed to give an opinion as to what the mixture 
was composed of, its effect upon a woman in preg- 
nancy when taken, and the danger to life. 

$ 57. Chemical Analysis of Contents of Stomach. 
-^In a case of poisoning, chemical tests and an 
analysis of the contents of the stomach and bowels 
are, as a rule, essential to the ascertainment of the 
truth, and should be resorted to in cases where there 
is no direct proof of the act. Symptoms of them- 
selves, without other circumstances are said to be 
unreliable, and to afford inconclusive evidence of 
guilt.' There are cases in which it is very difficult, 
and even impossible to discriminate with certainty 
during life between poisoning and ordinary disease, 
and with few exceptions the morbid appearances 
left by poison upon a corpse do not differ essen- 
tially from those that attend natural diseases, or 
some kinds of violent death. The most satisfactory 
evidence of poisoning, therefore, consists in the 
isolation of some particular poison from the tissues, 
or from the secretion or matter ejected from the 
body. In cases of suspected poisoning, the chem- 



1 state y. Slagh, 83 N. C. 630. 
« Joe V. The State, 6 Fla. 591. 



ANALYSIS OP CONTENTS OF STOMACH 137 

ical analysis should, if possible, be made by an ex- 
perienced chemist rather than by a general medical 
practitioner. 

But in cases where the opinions of experts are to 
be received as to the chemical contents of the 
stomadi and bowels, there should be preliminary 
proof of the identity of the stomach and its contents 
and that the same have not been improperly tam- 
pered with. Such proof should be submitted, and 
passed upon by the court, before the opinions of the 
experts are received.^ But in a case where an ex- 
pert chemist was allowed, over objection, to testify 
as to the result of his examination of the contents 
of a stomach which had been submitted to him for 
analysis, before this preliminary proof had been 
made, it was held that no error had been committed, 
such proof having been afterwards submitted. At 
the time the objection was raised counsel had stated 
that he would afterwards establish by a witness not 
then in the court-house, the identity of the contents 
of the stomach analyzed as the stomach of the de^ 
ceased.* 

It is, of course, necessary that the evidence 
should show that the stomach taken from the de- 
ceased was the identical stomach whose contents 
were analyzed, and that no foreign substance could 
have been introduced into the stomach, or into its 
contents, subsequent to the death of the deceased 
and prior to the chemical analysis. But it is 
not necessary that the stomach should be kept con- 
tinuously under lock and key from the time it is 
taken from the body of the deceased until the final 

1 The state v. Cook, 17 Kan. 3W. 

* Johnson v. The State, 20 Texas Ct. of App. 178. 



138 EXPERT TESTIMONY. 

analysis, or that it should be kept continuously 
sealed up. And it is not necessary that all possi- 
bility of its being tampered with should be ex- 
cluded.' 

Not only may the testimony of professional chem- 
ists be received, but the opinions of practicing 
physicians who are not professional chemists, have 
been received as to the analysis of the stomach, 
and the tests usually applied for detecting poison 
in such cases. Although the opinions of those who 
are not practical chemists are entitled to less weight 
than those given by that class of experts whose 
conclusions are based upon experience as well as 
books.' 

$ 58. Order of Research in Analysis for Poison. — 
In the analysis of a poison it is essential that 
the toxicologist should have followed a scientific 
order of research, as otherwise it is quite possible 
for him to fail to discover the presence of the poison. 
It is important for counsel in the examination of 
such witnesses to bear this fact in mind, and we, 
therefore, append this order of research. The ex- 
amination should be: 

^ See state v. Cook, 17 Kan. 392, 395. 

* State V. Hinkle, 6 Iowa, 380. In this case the opinions of two prac- 
ticing physicians were received. One of them stated that he was not a 
professional chemist, hut understood some of the practical details of 
chemistry — that portion at least which belonged to his profession ; that 
he had no practical experience in the analysis of poisons until he 
analyzed the contents of the stomach of the deceased ; that he was 
previously acquainted with the means of detecting poisons, and had 
since had some experience in that way. The other declared that he 
was not a practical chemist, but understood the chemical tests by which 
the presence of poison could be detected ; that he had never experi- 
mented with the view of detecting strychnine by chemical tests, but 
that he had seen experiments by professors of chemistry, and that there 
was one test much relied on, the trial of which he had witnessed. And 
see section 55. 



TESTIMONY ON SUBJECT OF BLOOD. 139 

1. For the volatile poisons, such as hydrocyanic 
acid, chloroform, ether, etc. These poisons being 
most liable to escape detection, as they may be lost 
by evaporation. 

2. For the vegetable poisons, such as strychnine, 
morphia, belladonna, etc., as the tests employed for 
the detection of mineral poisons are often destruc- 
tive of the vegetable poisons. 

3. For the various acids, alkalies, metallic poi- 
sons, etc.* 

$ 59. Expert Testimony on the Subject of Blood. 
— When marks of blood are found on the clothing 
or weapons of an accused person, it is not unusual 
to find him accounting for the same with a claim 
that he has been engaged in butchering cattle, 
killing a pig, or handling game. In such cases it 
becomes important to know the character of the 
blood for the purpose of determining, if possible, 
the truth or falsity of his explanation. 

It appears that the fluid of the blood contains a 
large number of corpuscles. Science counts and 
measures them, and it is commonly held that the 
blood of an adult man contains 5,000,000 red cor- 
puscles in each cubic millimetre. The average 
diameter of the human red corpuscle is still a sub- 
ject of discussion. Gulliver, however, states that 
the average size in both sexes is yAirths of an inch, 
while Taylor states it to be irAirths of an inch. 
Welcker, a recognized authority on the continent, 
gives .00774 m m. as the average breadth in the 
human male, and Elsberg, nearly agreeing with 
Welcker^ fixes the mean diameter of the red corpus- 
cle at .0075 m m. Human corpuscles are then to 

1 See 1 Or. Law Mag. 309. 



140 EXPERT TESTIMONY. 

be compared with the corpuscles of the animals. 
Gulliver gives the average in the dog as tAtt; 
in the hareasrsW; in the mouse tAt; in the ass 
ttjW; in the pig tsW; in the ox ^Vr; in the cat 
4-An); in the horse 4r^; in the sheep sihn; in the 
goat eAe. Satterthwaite, a recent writer on histol- 
ogy, gives the following averages: Dog, .0073 m m. ; 
cat, .0065 mm.; rabbit, .0069 mm.; sheep, .0050 
mm.; goat, .0041 mm.; elephant, .0094mm.; 
pigeon, .0147 mm.; chicken, .0121mm.; duck, 
.0129 m m. It will be seen that there is little vari- 
ation between the corpuscles of human blood and 
those of the dog, the cat and the rabbit; while there 
is a considerable variation between it and that of 
the elephant, the pigeon, the chicken and the duck.^ 

It is possible, therefore, for science in some cases 
to show whether the story of the accused is true or 
not. How valuable the testimony may be will de- 
pend on the circumstances of the particular case — 
on the blood to be compared — ^and on the manner 
in which the expert has done his work. On this 
latter point attention may properly be called to the 
following extract from a recognized authority on 
histology: 

'* Measurements of single corpuscles have no value 
in determining the particular animal from which the 
blood has been obtained, and this is an object of 
prime importance in medico-legal cases. It is com- 
mon, therefore, to make a hundred or more single 
measurements, and then take the average of them. 
And yet this figure may vary considerably in different 
individuals, or even in the same one. In the blood 

^See Satterth waiters Manual of Histology, ch. m; Taylor's Med. 
Jur. p. 307. 



TESTIMONY ON SUBJECT OF BLOOD. 141 

of the puppy, for instance (the size of the dog's cor- 
puscle being very nearly that of a man's), a recent 
observer found that the average diameter of fifty 
corpuscles varied only two millionth of an inch from 
a like average of fifty taken from his own blood. In 
another instance, taking forty from a puppy, he found 
that the average differed only seven millionth of an 
inch from a similar average of his own."^ 

Again, an important element seems to be whether 
the blood measured was recent or dried. And 
another writer on this subject says: 

''When blood is dried on clothing, and it is neces- 
sary to extract the corpuscles by means of a liquid 
of a different nature from the serum, we cannot rely 
on slight fractional differences, since we cannot be 
sure that the corpuscles, after having been once 
dried, will ever acquire, in a foreign liquid, the exact 
size which they had in serum. Medical' evidence 
must, therefore, be based, in such cases, on mere 
speculation. * * * 

There are no certain methods of distinguishing 
microscopically, or chemically, the blood of a human 
being from that of an animal, when it has been once 
dried on an article of clothing."* 

Persons accustomed to make chemical and micro- 
scopic examination 6f blood and blood stains, are, 
of course, allowed to testify whether human blood 
can be distinguished from animal blood, and, if so, 
whether a particular blood stain was made by human 
or animal blood.' Such evidence has been received 
in numerous cases, and without objection. 

^ Sattertbwaite's Manael of Histology, p. 36. 
» Taylor's Med. Jur. p. 307. 

* See Commonwealth v. Stnrtivant, 117 Mass. 122, 124; State v. Knight, 
43 Me. 1, 133; Knoll v. The State, 56 Wis. 249. 



142 EXPERT TESTIMONY. 

An expert may illustrate his testimony touching 
the properties of human blood, as ascertained by 
chemical tests and microscopic observation, by the 
use and exhibition to the jury of a diagram. **It 
would be very difficult for an expert of the most 
accurate and extensive observation, to exhibit in lan- 
guage with precision, so as to be understood, those 
delicate appearances which are appreciable only by 
the sense of vision. Nothing short of an exact rep- 
resentation to the sight can give with certainty a 
perfectly correct idea to the mind. * * * A 
diagram approximating in any degree to perfect rep- 
resentation, when exhibited by one qualified from 
knowledge and experience to give explanations, may 
do much to make clear his testimony without danger 
of misleading."* 

In a criminal trial it would seem to be proper 
that the ■ prisoner should be allowed to have 
the articles, which the prosecution allege to be 
smeared with blood, examined by his own experts. 
After such articles have been offered in evidence by 
the government, they are placed in the special 
custody of the court, to be dealt with as justice re- 
quires. Then, if the prisoner desires an examina- 
tion to be made by his experts, it should be allowed 
imder proper precautions. As Mr. Justice Ludlow 
has expressed it, ^'the court should see to it that they 
are guarded from intentional or accidental injury, 
with the most scrupulous care, and they may be ex- 
amined in open court by any persons selected by the 
prisoner or his counsel, or if, from necessity, the ex- 
amination cannot be made accurately in open court, 
they should be placed in the hands of any respect- 

1 The state v. Knight, 43 Me. 1. 



TESTIMONY AS TO BLOOD STAINS. 143 

able chemist or physician to be selected by the 
prisoner, with the consent of the court. They should 
be properly identified as the very articles oflFered in 
evidence by the Commonwealth before they are de- 
livered to the person who has been selected by the 
prisoner's counsel, and for this purpose, that person 
should receive them in open court, and they should 
then be examined in the presence of an oflftcer or 
officers of the court.''* 

§ 60. Whether Ordinary Witnesses may Testify as 
to Blood Stains. — But it has been made a question 
in several cases, whether ordinary witnesses may 
testify as to blood stains, it being objected that no 
one but a chemist is qualified to state whether stains, 
apparently made by blood, are really blood stains 
or not. We cannot find that such an objection has 
been sustained in a single instance. And the rule- 
is, that ordinary witnesses are competent to testify 
that they observed spots of blood upon the clothing, 
etc., and no chemical analysis of the substance sup- 
posed to be blood is necessary.* ^*The testimony of 
the chemist who has analyzed blood, and that of 
the observer who has merely recognized it, belong 
to the same legal grade of evidence; and though the 
one may be entitled to much greater weight than 
the other with the jury, the exclusion of either would 
be illegal. * * Either party in the present case 
had the right to resort to microscopic or chemical 
tests, but neither was bound to do it, and neither 
can complain of the other for the omission. * * 
The affairs of life are too pressing and manifold to 
have everything reduced to absolute certainty, even 

1 Commonwealth v. Twitchell, 1 Brewster (Pa.), 562. 
<Dillard v. State, 58 Miss. 368,386; People v. Greenfleld, 30 N. Y. 
Sop. Ct. 462; 8. C, 85 N. Y. 75. People v. Deacons, 109 N. Y. 374. 



144 EXPERT TESTIMONY. 

in the administration of justice. * * MicroscopeSj, 
chemists and men of science are not always at hand, 
and criminals are neither anxious to court observa- 
tion, nor careful to preserve the evidences of their 
guilt." ^ But the question whether the blood is 
human blood or the blood of an animal, would seeni 
to be one of science requiring the testimony of ex« 
perts.^ 

§ 61. Blood Stains — Proper Question Concerninsr^ 
— It is sometimes very important to determine 
whether blood stains upon clothing were occasioned 
by blood flowing upon the outer, or upon the inner 
surface of the fabric. If caused by blood flowing 
directly upon the outer surface of the fabric, the 
coloring matter of the blood, which is suspended in 
the blood, will, of course, remain on the outer sur- 
face, whereas it would be on the inner surface of 
the garment if it came from within. It is held, 
therefore, that one who is qualified by chemical ob- 
servations and experiments, may testify whether a 
blood spot upon a garment could have been occa- 
sioned by blood flowing directly upon the outer sur- 
face thereof.' And an expert may testify as to the 
direction from which a blood stain came, as, for 
instance, that it came from below upwards.* But 
in a case in Mississippi, where it was proposed to 
ask the experts to give their opinions as to the rela- 
tive positions of the combatants at the time of the 
difl&culty, as indicated by blood upon the shirt, with 
a view of showing by the blood marks that the 
prisoner was probably prostrate on the ground, and 

1 People V. Deacons, 109 N. Y. 374. 

People V. Ganzalez, 36 N. Y. 49, 61. 
• « State V. Knight, 43 Me. 1, 133. 
^ Commonwealth v. Sturtivant, 117 Mass. 122. 



OPINIONS IN MISCELLANEOUS CASES. 145 

deceased on top of him when the stains on the shirt 
wefe received, the question was exchided upon the 
ground that it did not involve any matter of science 
or skill, and that the jury must judge for them- 
selves/ 

§ 62. MigcellaneouB Casefi in which the Opinions 
of Chemists have been BeceiTed.-— A chemist has heen 
permitted to testify as to the safety of camphene 
lamps.' In this case the witness was held compe- 
tent to express an opinion as to the safety of the 
lamp, although he had never experimented with 
lamps, or made or used camphene, or paid any par- 
ticular attention to camphene lamps, but it appeared 
that he had studied chemisty with a distinguished 
chemist; that he was himself an instructor in chem- 
istry, and acquainted with gases, having experi- 
mented with them, and also knew how camphene 
was made. And in an action which involved the 
question whether a certain fertilizer was merchant- 
able and reasonably suited to the use intended, the 
opinion of a chemist, who had made an analysis of 
the fertilizer, was considered competent evidence, 
although not conclusive as to the suitableness of the 
fertilizer for the use intended.' So in an action to 
recover damages for injury to land by working a 
copper mill producing noxious gases, from which 
poisonous substances are discharged, the testimony 
of experts has been received, showing that they had 
made experiments with gases taken from the land. 



1 Dillard v. State, 58 MUs. 368, 387. 
» Bierce v. Stocking, 11 Gray (Mass.), 174. 

3 Wilcox V. Hall, 53 Oa. 635. See, too, Gosslerv. Eagle Su|?arBeflDery, 
103 Mass. 331, that certain sugar contained 3 per cent, of sand. 

(10) 



146 EXPERT TESTIMONY. 

by means of which they had obtained copper/ The 
testimony of a chemist has been received, that the 
point of drainage of surrounding lands by a filter 
basin, on land taken for that purpose, could be de- 
termined, and it has been held proper to ask him 
whether the level had been determined by experi- 
ment, at which water stood under soil generally, 
and that he could state the results of experiments 
made by him in his laboratory in proving that fact.' 
A chemist might properly be asked as to the proba- 
bility of spirits evaporating while undergoing trans- 
portation in certain casks.' The opinions of chemists 
are, of course, received as to the constituent parts 
of a compound.* We have elsewhere considered the 
admissibility of the opinions of chemists as to the 
nature of inks, and the age of writing, in cases in- 
volving the genuineness of handwriting.'^ 

§ 63. Expert Testimony on the Subject of Hair. — 
The question whether certain hair is human hair or 
not sometimes becomes a question of great impor- 
tance on trials for homicide. The opinion of a 
microscopist would certainly be received as to 
whether the hair in question was human or not. 
And a witness possessing no special qualifications 
has been allowed to express such an opinion.* 

A trial occurred about 1850 at Norwich, England, 
the circumstances of which are given as follows : 
** A female child, nine years old, was found lying on 
the ground in a small plantation, quite dead, with 

^Lincoln v. Taunton Manuf. Co., 9 Allen (Mass.), 1S2. See, too, Salvin 
y. North Brancepeth Coal Co., 9 Ch. App. (L. R.) 705. 

* Williams v. Taunton, 125 Mass. 34. 

» Turner v. The Black Warrior, 1 McAllster, 181, 184. 

* Allen V. Hunter, 6 McLean, 303, 310. 
« See Chapter VI. 

* Commonwealth v. Dorsey, 103 Mass. 412. 



EXPERT TESTIMONY AS TO HAIR. 147 

a large and deep gash in the throat. Suspicion fell 
upon the mother of the murdered girl, who, upon 
being taken into custody, behaved with the utmost 
coolness, and admitted having taking her child to 
the plantation where the body was found, whence 
the child was lost in quest of flowers. Upon being 
searched, there was found in the woman's posses- 
sion a larjge and shai^p knife, which was at once sub- 
jected to a minute and careful examination. Noth-* 
ing, however, was found upon it, with the exception 
of a few pieces of hair adhering to the handle, so 
exceedingly small as scarcely to be visible. The 
examination being conducted in the presence of the 
prisoner and the officer remarking, 'Here is a piece of 
fur or hair on the handle of your knife,' the woman 
immediately replied, *Yes, I dare say there is, and 
very likely some stains of blood, for as I came home 
I found a rabbit caught in a snare, and I cut its 
throat with a knife. ' The knife was sent to London, 
and, with the particles of hair, subjected to a micro- 
scopic examination. No trace of blood could at first 
be detected upon the weapon, which appeared to have 
been washed: but upon separating the horn handle 
from its iron lining it was found that between the 
two a fluid had penetrated which turned out to be 
blood — certainly not the blood of a rabbit, but 
bearing every resemblance to that of the human 
body. The hair was then submitted to examination. 
Without knowing anything of the facts of the case, 
the microscopist immediately declared the hair to 
be the hair of a squirrel. Now, round the neck of 
the child at the time of the murder there was a tip- 
pet or 'victorine,' over which the knife, by whom- 



148. EXPEKT TESTIMONY. 

ever held, must have glided, and this victorine was 
of squirreVs fur. 

This strong circumstantial evidence of the guilt 
of the prisoner was deemed by the jury sufficient 
for a conviction, and whilst awaiting execution the 
wretched woman fully confessed her crime.'" 

In the famous Cronin case, recently tried in 
Chicago, expert testimony on the subject of hair 
^as received, some of the experts affirming and 
others denying the possibility of determining that 
certain hair was human hair. If the microscopists 
of this country or of England have given much 
attention to the question whether it is possible to 
distinguish human hair from all other forms of hair, 
they have not made public, so far as the writer 
knows, the result of their investigation. 

$ 64. Expert Testimony in Malpractice Cases.—* 
The law requires a physician or surgeon, who ac- 
cepts an employment to treat a patient profession- 
ally, to exercise such reasonable care and skill as is 
ordinarily possessed and exercised by physicians or 
surgeons in good standing, of the same systenx or 
school of practice, in the locality of his practice.' 
If he fails to perform this duty he is liable for his 
failure or neglect. To constitute a school of med- 
icine under this rule, it must have rules and princi- 
ples of practice for the guidance of all its members, 
as respects principles, diagnosis, and remedies, which 
each member is supposed to observe in any given 
case. If the practitioner practices without such a 
system of fixed principles or formulated rules, he does 



1 Bichardson'B Medical Microscopy, 295. And see appendix. 
* Bowman v. Woods, 1 Gi'een (Iowa), 441 ; Patten v. Wlggln, 51 Me, 
595. 



EXPERT TESTIMONY IN MALPRACTICE CASES. 149 

not belong to '^a school of medicine," and he is held 
to the duty of treating his patient with the ordinary 
skill and knowledge of physicians in good standing 
who practice in his vicinity/ Whether a physician 
has in a given case adopted the proper treatment is 
a question on which the opinions of medical men of 
the same school may be received in evidence, and 
they may state whether in their opinion the treat- 
ment was proper or not,' whether it was in conform- 
ity with the rules and practice of the profession.* 
In a case in Wisconsin it was decided that a physi- 
cian might be asked the following questions: ^* Sup- 
pose his statement relative to the amputation and 
its subseqent treatment to be truthful, was or was 
not the amputation well performed? Was the sub- 
sequent treatment of the patient proper or improper? 
And in your opinion, was or was not the death of 
the patient the result of any neglect or want of skill 
in the surgeon?"* An expert in medicine can be 
asked whether the defendant **gave the case such 
attention as it demanded," and whether there was 
*'any unskillful management" on the part of the 
defendant.* The defendant in such a case has been 
allowed fo testify that the surgeon who assisted him 
to perform the act of surgery complained of was 
skillful.* It is not necessary that the opinion of the 

1 Nelson v. Harrington, 72 Wig. 591. 

« Wright V. Hardy, 22 Wis. 348; Hoener v. Koch, 84 HI. 408; Mertz v. 
Detweiler, 8 W. & S. (Pa.) 376; H«ath y. Glisan, 8 Oregon, 67; Rob- 
erts V. Johnson, 58 N. Y. 613, 615; Mayo y. Wright, 63 Mich. 32. 

» Twombly v. Leach, 11 Gush. (Mass.) 405. 

* Wright y. Hardy, 22 Wis. 348, 353. 

* Olmsted y. Gere, 100 Pa. St. 127. In this case it was alfso held proper 
for a physician to express the opinion that a limb was or was not as 
good as the ayerage condition of such cii^es treated by shillful physi- 
cians. 

* Joues y. AngelK 95 Ind. 376. 



150 EXPERT TESTIMONY. 

expert in a malpractice case should be asked upon 
any particular part of the treatment, but taking the 
whole treatment together he may be asked whether 
it ''was proper or improper.'" And a physician 
who attended a patient who had been under the 
care of another physician, can testify as to what, so 
far as he could judge, had been the first physician's 
treatment; in what respects it differed from his own; 
what effect, so far as he could judge, it had upon 
the plaintiff, and whether or not he saw any evidence 
that the plaintiff had been injured by his treatment.' 

^ 65. Expert Testimony in Cases of Rape. — Science 
claims that by the use of the microscope in the in- 
vestigation of stains upon clothing supposed to be 
caused by spermatic fluid, as in cases of rape and 
indecent assault, it can often throw much light 
upon the guilt or innocence of persons accused of 
these offenses. The following account taken from a 
recognized authority is ofinterest in this connection: 

^'In a case upon which I was consulted some time 
since, where a young girl was said to have been vio- 
lated by main force and held down for some min- 
utes subsequently, the chemise worn on the occasion 
was brought to me for examination. On inspection, 
besides sundry small reddish spots and streaks 
upon the front, there were to be seen two large 
stains on either side of the middle of the back of the 
garment, each about four inches long by three 
inches wide, such as might occur from any fluid 
running down the inside of the thighs from the 
vulva of a female lying upon her back in a nearly 
horizontal posture. My first duiy being obviously 

1 Mayo V. Wright, 63 Mich. 32. 

s Barber y. Merriam, 11 Allen (Mass.), 322. 



EXPERT TESTIMONY IN CASES OF RAPE. 151 

to determine whether these reddish stains were pro- 
duced by blood, the chemise was doubled over at 
the most highly tinted part of one spot, and the 
convex portion of the fold scraped lightly with a 
sharp scalpel over a clean side until a small quan- 
tity of fine reddish dust was obtained. This powder 
was covered with thin glass, and, a drop of water 
being applied to one edge, and a fragment of bibu- 
lous paper to the other, a current of fresh fluid was 
kept up for about one minute when the specimen 
was examined with a power of 1,200 diameters. * 
* * These cellular elements became more clearly 
visible when slightly tinted with aniline, and on 
measurement with the micrometer were found to 
average about 4(s\)o and ^Aio of an inch in diameter 
respectively, whence I concluded that the red stains 
were produced by blood, probably that of a human 
being. * * * The main question, as to the 
presence or absence of spermatozoa, still continuing 
unsolved, as none had been detected among the 
particles of blood-clot, a fragment of muslin about 
three-fourths of an inch long by one-eighth an inch 
wide, selected from a portion where the fabric, al- 
though but little stained was a good deal stiffened 
by the suspected material, was cut out with a pair 
of curved scissors, and, after soaking for a couple of 
minutes in a drop or two of weak glj^cerine and 
water, its inner surface was gently scraped and 
pressed with a scalpel, the visible filaments of cotton 
picked out with a mounted needle, the remainder 
covered with a very thin glass and subjected to ex- 
amination under * * a power of about 2,800 
diameters. Several indubitable spermatozoa * * 
were readily detected, and proved beyond all ques- 



152 EXPERT TESTIMONY. 

tion that spermatic fluid, mingled with blood, had 
caused the stains upon the chemise.'' * 

There have been a number of cases of rape before 
the courts in which questions have been raised con- 
cerning expert testimony. The use of the micro- 
scope is not the only method which science has of 
throwing light upon such inquiries, as the following 
cases will show. 

On the trial of an indictment for the rape of a 
child, the opinion of a physician that there has been 
actual penetration is admissible.' And upon such 
trials medical experts may be examined as to 
the health and physical condition of the prosecutrix 
at the time of the alleged offense, as bearing upon 
her ability to resist the defendant.* But it has been 
held incompetent to ask such witnesses the follow- 
ing questions: **From what you know of her health 
and strength, in your opinion could the defendant 
have had carnal connection with her against her 
will, without resort to other means than the exercise 
of his ordinary physical powers?" And whether, in 

1 Richardson's Medical MfcroBCopy, 299, 300. Dr. Caspar, in his 
Hand-book of the Practice of Forensic Medicine, Vol. I., Sydenham 
Society's translation, London, 1861, says: 'inexperienced persons may 
no doubt be deceived by the presence of epithelial cells, the libers of the 
linen, etc., but whoever has only once seen a single characteristic sper- 
matozoon, dead or alive, can nevei be deceived again. I have recog- 
nized them even after the lapse of an entire year, and thereby determined 
the existence of a seminal stain. Bayard states that he has recognized 
them after three years, and Bitter even after four years, which is per- 
fectly credible, presupposing always that the Imen during that time has 
not been much rubbed or handled, because the forms of the zoosperms 
will be thereby destroyed." Frey in his Microscope and Microscopical 
Technology, p. 659, speaking of the procedure by which spermatozoa are 
to be detected, says : ^^Any spermatozoa which may bp present will thus 
be discovered with certainty, and there Is scarcely any possibility of 
mistaking them." 

» State v. Smith, Phillips (N. C.) Law, 302. 

8 State v.Tinapp, 45 N. H. 148. 



EXPERT TESTIMONY IN CASES OF RAPE. 



153 



the opinion of the witness, *'a rape could be com- 
mitted on a female who had borne children, and was 
in ordinary health and strength, without resort to 
other means than the exercise of ordinary physical 
powers." * It has been held proper for an expert 
to state what effect a rape would have on the 
sexual organs of the female, and to testify 
that upon an examination of the prosecutrix 
several days after an alleged rape, her sexual 
organs were found inflamed. But the witness 
cannot usurp the province of the jury, said the 
court in the case cited, by expressing the opinion 
that such inflammation '*was produced by having a 
violent connection." * 

Medical experts sometimes claim to be able to de- 
termine whether specimens of spermatozoa are really 
those of a man or are the testicular products of some 
animal, employed for the purpose of deception.' 



1 Wooden v. People, 1 Parker Cr. Gas. 464. And »ee Cook v. State, 34 
N. J. L. 843. 

> Noonan y. The State, 55 Mo. 368. 

' ^ 'Under Buch circum stances accurate measurements would be very 
important, and since these differ in the different species of mammals, and 
still more in birds, flshe.^, etc., they would probably be conclusive. Of 
course, counsel propounding such a theory to account for a suspicious 
stain proved to contain spermatozoa, should rightfully be compelled to 
show some probability of access to the one of the Inferior animals from 
which they could be pi*esumed to be derived. Of these the more likely 
are perhaps the dog, whose spermatozoa, as figured by Rudolph Wagner 
(Elements of Physiology, translated by Robert Willis, M. D., London, 
1844, p. 11), are about one-fourth larger than those of man, and have the 
body broadest at the extremity, instead of at the base; that of the rab- 
bit, in which the body is nearly twice the size of the same part of a 
human spermatozoon, etc. The seminal animalcules of the monkey 
tribe closely resemble those of man, but are about one-half larger." 
Richardson's Medical Microscopy, p. 303 ; Dalton*s Human Physiology, 
p. 458. The spermatozoa of the human subject are said to be about 
1-600 of an inch in length, according to the measurements of Kolliker. 



• 154 EXPERT TESTIMONY. 

$ 66. Expert Testimony in Oases of Abortion, 
Preg^nancy and Seduction. — The opinions of medical 
^ experts are received upon the question of whether 
an abortion has been performed/ and they are 
allowed to testify that certain medicines are 
known as abortives, and to state that it would 
be a dangerous thing to give certain drugs, in almost 
any dose, to a pregnant woman, and how large 
a dose would be required to produce an abortion.* 
And medical experts have been held competent to 
testify that certain surgical instruments found in the 
house of the defendant, indicted for an abortion, 
were adapted to produce an abortion.' A physician 
testifying as an expert that he discovered no traces 
of an abortion in a certain case was properly asked 
whether such traces would exist under certain cir- 
cumstances, even though no proof of such circum- 
stances had been made.* When the prosecutrix, in 
a prosecution for producing an abortion by a violent 
and unlawful assault, had testified to the violence 
used upon her, and to her subsequent delivery of a 
dead child, and the condition of its body, it was 
held that she was incompent to testify that the 
aEortion was the result of the violence, she being a 
non-expert.* 

It has been held that the parts of the person upon 
whom instruments were alleged to have been used 
for the purpose of procuring an abortion, and which 
had been preserved in alcohol, could be submitted 



1 State V. Smith, 32 Me. 370; State v. Wood, 53 N. H. 484, 495. 
» Regina v. Still, 30 Upper Canada (C. P.), 30. 
> ComtnoQ wealth v. Brown, 121 Mass. 69. 
4 Bathrlck v. Detroit, ete. Co., 50 Mich. 629. 
* Nevarro v. State, 24 Tex. App. 378. 



ABORTION, PREGNANCY AND SEDUCTION. 155 

to the jury in connection with the testimony of the 
physician who made the post-mortem examination/ 

Physicians are permitted to express an opin- 
ion upon the question of pregnancy.' A med- 
ical witness has been allowed to testify that 
pregnancy was just as likely to take place in case of 
rape as in the case of a voluntary sexual connection.' 
But a witness who has had no peculiar experience and 
possesses no peculiar skill, is not competent to ex- 
press an opinion as to pregnancy.* 

In a prosecution for seduction the opinion of 
medical experts has been held admissible, who tes- 
tified to the effect that it was highly improbable, if 
not impossible for intercourse to have occurred under 
the circumstances described by the complainant (i. 
e., in a buggy); and also as to the pain and suffer- 
ing the complainant would have experienced had 
such an act taken place.* And it has been held 
that a woman who had experience as a nurse in 
childbirth, and as such had been in attendance at 
premature births, might express an opinion as an 
expert as to whether the birth of a child was pre- 
mature.* ''The witness, by her experience and ob- 
servation," said the court, ''appears to have ac- 
quired knowledge of the subjects about which she 
was testifying, that persons generally do not have. 
To the extent of this peculiar knowledge she was a 
person of skill and science, and her opinion, founded 
upon it, was evidence to go to the jury." 

1 Commonwealth v. Brown. 14 Gray, 419. 
> State y. Wood, 63 N. H. 484, 495. 

s State V. Knapp, 45 N. H. 148, 152. And see Young y. Johnson, 46 
Han (N.Y.),164. 
« Boies y. McAlister, 12 Me. 308. 
s People y. Clark, 33 Mich. 112. 
« Mason y. Fuller, 45 Vt. 29. 



156 EXPERT TEgTIMONY, 

$ 67. Opinions of Kon-Professional Witnesses as 
to Mental Condition.— There seems to have been no 
dispute as to the right of the subscribing witnesses 
to a will, to testify concerning the actual mental 
condition of the testator, but their opinions have 
been received without question. The fact that they 
were present at the time the will was signed, makes 
them competent to speak upon the subject, whether 
they ''happen to be the attending physicians, nurses, 
children, or chance strangers.''^ And it does not 
seem to be necessary that they should state the 
facts upon which their opinions are predicated.' 
But a marked difference of opinion has existed as to 
the right of persons, who are neither the subscribing 
witnesses to the will, nor experts in mental diseases, 
to express any opinion whatever as to a person's 
sanity or insanity, soundness or unsoundness of 
mind. It has been held in a number of cases, that 
the opinions of such witnesses cannot be received.' 
Such opinions have been excluded upon the theory, 
that special knowledge and skill are required to 

1 Hardy v. Merrill, 56 N. H. 227, 243; Poole v. Richardson, 3 Mass. 
330; Chase v. Lincoln, 31 Mass. 237; Needham v. Ide, 5 Pick. 510; Potts 
y. Hoase, 6 Ga. 324; Van Huss v. Raiubolt, 42 Tenn. 139; De Witt v. 
Barley, 9 N. Y. 371 ; Williams v. Lee, 47 Md. 321 ; Boardman v. Wood- 
man, 47 N. H. 120, 134; Grant v. Thompson, 4 Conn. 203; Wogan v. 
Small, 11 S. & R. (Penn.) 141 ; Rambler v. Tyron, 7 S. & R. (Penn.) 90, 
92; Cilley v. Cilley, 34 Me. 162; Robinson v. Adams, 62 Me. 369; Logan 
V. McGinnis, 12 Pa. St. 27; TItlow v. Titlow, 54 Pa. St. 216; Gibson v. 
Gibson, 9 Yerg. (Tenn.) 329; Holcomb v. Holcomb, 95 N. Y. 316, 321. 

s Williams v. Lee, 47 Md. 321; Van Huss v. Rainbolt, 42 Tenn. 139; 
Potts V. House, 6 Ga. 324. 

3 Wyman v. Gould, 47 Me. 159; Hielcman v. State, 38 Tex. 191; State 
V. Archer, 54 N. H. 465; Boardman v. Woodman, 47 N. H. 120; Com- 
monwealth V. Fairbanks, 2 Allen (Mass.), 511; Townsend v. Pepperell, 
99 Mass. 40; Hastings v. Rider, 99 Mass. 624,' 625; Commonwealth v. 
Wilson, 1 Gray, 337; State v. Pike, 49 N. H. 399; Van Horn v. Keenan, 
28 111. 445, 449; De Witt v. Barley, 9 N. Y. 371; State v. Geddis, 42 
Iowa, 268. 



OPINIONS AS TO MENTAL CONDITION. 157 

judge intelligently of the mental condition of an- 
other, and that if the witnesses give a detailed ac- 
count of the acts and conduct of the person whose 
mental capacity is in question, the jury are as 
competent to form an opinion thereon as the witnesses 
themselves ; that the opinions of professional wit- 
nesses may be received, as they can judge with 
some degree of accuracy, from pathological symp- 
toms, but that the opinions of non-professional wit- 
nesses ought not to be received, as they can only 
form their opinions from the actual demonstrations 
of the person, and that those demonstrations ought to 
be stated to the jury, and that body left to form their 
own opinion as to the cause and character of the ap- 
pearances described. The fact has come, however, 
to be recognized, that it is impossible so to 
describe the appearance and demonstrations 
of a person, as to convey any accurate idea 
of their exact character, and to leave upon the 
mind of jurors the legitimate impressions which 
such demonstrations and appearances naturally 
leave upon the mind of the actual observer. 
The result has been that many of the earlier cases 
have been overruled, and the principle has come to 
be generally recognized that non-professional wit- 
nesses may give their opinions as to sanity, as a re- 
sult of their personal observation of the person whose 
mental condition is in question, after first stating the 
facts which they have observed.^ 

1 Carpenter v. Hatch, 64 K. H. 573; McRae v. Malley, 93 N. C. 154; 
Conn. Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612; Shaver v. McCarthy, 
110 Pa. St. 339; Taylor v. Commonwealth, 109 Pa. St. 262; Gnibb v. 
State, 117 Ind. 277; State v. Potts, 100 N. C. 457; Thomas v. State, 40 
Texas, 65; Whiteomb v. State, 41 Texas, 125; McClackey v. State, & 
Tex. Ct. of App. 320; Webb v. State, 5 Tex. Ct. of App. 596; Hardy v. 
Merrill, 56 N. H. 227; Dennis v. Weeks, 51 Ga. 24; Choice v. State, 31 



158 EXPERT TESTIMONY. 

But in New York tKe principle is still adhered to 
that laymen will not be allowed to express an opin- 
ion that a person was sane or insane, except in the 
case of subscribing witnesses. The rule in that State 
is that when a layman is examined as to facts within 
his own knowledge and observation, tending to show 
soundness or unsoundness of a person's mind, he 
may characterize as rational or irrational the acts and 
declarations to which he testifies, but while he can 
thus state the impression produced by what he wit- 



Ga. 424, 406; Berry y. State, 10 Ga. fill; People v. Sanford, 43 Cal. 29; 
Roe V. Taylor, 45 111. 486; Beller v. Jones, 22 Ark. 92; Clark v. State, 12 
Ohio, 483; State v. Hayden, 51 Vt. 296; Crane v. Crane, 33 Vt. 15; 
Morse V. Crawford, 17 Vt. 499; Florey's Ex'rs v. Florey, 24 Ala. 247; 
Puryear v. Reese, 46 Tenn. 21 ; Gibson v. Gibson, 9 Yerg. ^Tenn.) 329; 
People V. Finley, 38 Mich. 482, 484; Walker v. Walker, 14 Ga. 242; 
Fielder v. Collier, 13 Ga. 496; Dieken v. Johnson, 7 Ga. 484; Foster v. 
Brooks, 6 Ga. 290; Crowe Adm^r v. Peters, 63 Mo. 429; Sutherland v. 
Hawkins, 56 Ind. 343; Rush v. Megee, 36 Lnd. 69; Hunt's Heirs v. Hunt, 
3B. Monr. (Ky.) 577; Rambler v. Tyron, 7 S. & ». 90; Wilkinson v. 
Pearson, 23 Pa. St. 117; McDougald v. McLean, 1 Winston (X. C.) Law, 
120; EsUte of Brooks, 54 Cal. 471 ; Williams v. Lee, 47 Md. 321; Dove 
V. State, 50 Tenn. 348; Waters v. Water?, 35 Md. 531 ; Pidcock v. Potter, 
68Pa. St. 342; State v. yewlin,69 Ind. 108; State v. Klinger, 46 Mo. 
224; Clary v. Clary, 2 Ired. (N. C.) 78; De Witt v. Barley, 17N. Y. 340; 
Beaubien V. Ciootte, 13 Mich. 459; Kelly^s Heirs v. McGuire, 15 Ark. 
555,601; Stewart v. Redditt, 3 Md. 67; Dorsey v. Warfleld, 7 Md. 65; 
Brooke v. Townshend, 7 Gill (Md ), 24; Bumham v. Mitchell, 34 Wis. 
Ill; Kilgore v. Cross, 1 Fed. Rep. 582; People y. Wreden, 59 
Cal. 392; Plnney's WIU, 27 Minn. 280; Pittard v. Foster, 
12 ni. App. 132; Upstom y. People, 109 HI. 169; American Bible Society 
y. Price, 115 111. 623; Goodwin y. The State, 96 Ind. 500; Ryman y. 
Crawford, 86 Ind. 262; Turner y. Kansas City, etc. R. R. Co., 23 Mo. 
App. 13; Bell y. McMaster, 29 Hun (N. Y.), 272; McLeary v.Morment, 
84 N. C. 235; Barker y. Pope, 91 N. C. 165; Weatmore y. Sheffield, 56 
Vt. 239; Parkhurst y. Hosford, 21 Fed. Rep. 827; Chase y. Winans, 59 
Md. 475; Appleby y. Broclj^, 76 Mo. 314; State y. Erb, 74 Mo. 199; Wood 
y. The State, 58 Miss. 741 ; Woodcock y. Johnson, 36 Minn. 217; Wise y. 
Foote, 81 Ky. 10; State y. Winters, 72 Iowa, 627; State y. Bryant, 93 
Mo. 273; Campbell y. State, 10 Tex. Ct. of App. 560; Harris y^. State, 18 
Tex. Ct, of App. 287, 294; Johnson y. Culyer, 116 Ind. 278; Kelthley y. 
Stafford, 126 III. 507; Frizzell y. Reed, 77 Ga. 724; FIshburne y. Fergu- 
son, 84 Ya. 87. 



OPINIONS AS TO MENTAL CONDITION. - 159 

nessed, he is not competent to express an opinion on 
the general question whether the person's mind was 
sound or unsound/ 

And in Massachusetts also the courts still exclude 
the opinions of ordinary witnesses as to mental sound- 
ness or unsoundness. In that State only experts and 
subscribing witnesses to wills are permitted to give 
opinions on questions of mental condition and capac- 
ity; and only persons of scientific training upon the 
subject and physicians are there regarded as experts.* 
But the coui^s in that State will not allow an ordi- 
nary witness to say whether, in his opinion, a 
person has failed mentally within a given time,' or 
whether the witness has noticed any want of cohe- 
rence in another's remarks,* or whether the witness 
had ever observed any fact which led him to infer 
any derangement of intellect.* 

In a case in Ohio the Supreme Court of that State 
ruled that the witness ought be asked what opin- 
ion he entertains at the time of the trial, and not 
as to the opinion which he entertained at the 
time of the acts referred to by him, inasmuch as sub- 
sequent reflection and consideration may have satis- 
fied him that the opinion formed at the time of ob- 
servation was erroneous.* And in Vermont the court 



1 Clapp V. Fullerton, 34 N. Y. 190; O'Brien v. People, 36 N. Y. 276; 
Real V. People, 42 N. Y. 270; Hewlett v. Wood, 55 N. Y. 634; Rider v. 
Miller, 86 N. Y. 507; In re Ross, 87 N. Y. 514; Holcomb v. Holcomb, 96 
N. Y. 316 ; Matter of Klock, 49 Hun (N. Y.) , 450 ; People v. Packenham, 
115 N. Y. 200. 

* Commonwealth y. Brayman, 136 Mass. 438; Cowles v. Merchants 
140 Mass. 377; May y. Bradlee, 127 Mass. 414; Hastings y. Rider, 9d 
Mass. 622. 

* Commonwealth y. Brayman, 136 Mass. 438. 

* Barker y. Comins, 110 Mass. 477. 
« May y. Bradlee, 127 Mass. 414. 

* Rnnyan y. Price, 15 Ohio St. 14. 



160 EXPERT TESTIMONY. 

held that, the fact that the witness did not form his 
opinion at the time he saw and observed the facts 
testified to by him, did not render his opinion on 
that account inadmissible/ 

It must be conceded, we think, that the interests 
of justice require that ordinary witnesses should be 
allowed to express an opinion as to soundness of 
mind based on their personal knowledge and obser- 
vation of the party's acts. The inquiry does not 
seem to be one so necessarily involving scientific 
evidence, as to be beyond the domain of common 
sense. And it is quite possible for non-professional 
witnesses to observe innumerable acts, motions and 
expressions, which it is impossible to communicate 
to others in such a way as to convey any 
fair conception of their importance, and which 
are, nevertheless, sufficient to conclusively sat- 
isfy the observer as to a person's mental con- 
dition. While such opinions are admissible, yet 
no general rule can be laid down as to what shall be 
deemed a sufficient opportunity of observation in the 
witness, other than it has enabled him to form a 
belief or judgment thereon.' 

When such opinions are received in evidence, the 
weight to be accorded to them is a question for the 
jury, who must determine whether the facts testified 
to by the witnesses as a basis for their opinions justi- 
fied the opinions expressed.* 

The opinions of ordinary witnesses as to mental 
condition, as in other cases when the opinions 

1 Hathaway's Adm'r v. National Lile Ins. Co., 48 Vt. 335. 

« Choice V. The State, 31 Ga. 424, 467. 

3 Taylor v. Commonwealth, 109 Pa. St. 262; Chase v. Winans, 59 Md. 
475; Wood v. State, 58 Mies. 741; Wise v. Foote, 81 Ky. 10; McClackey 
V. State, 6 Tex. Ct. of App. 331. 



TESTIMONY AS TO MENTAL CONDITION. 161 

of such witnesses are received, are always based 
on their personal knowledge of the individual case, 
and never on the evidence of other witnessess, nof 
on a hypothetical case/ 

In Texas, where ordinary witnesses, personally 
acquainted with the individual whose mental condi- 
tion is the subject of inquiry, are allowed to express 
their opinion based on the facts they have observed^ 
it has been held that the opinion of a non-profes- 
sional witness based on his personal observation of 
the symptoms of kleptomania is admissible in evi- 
dence in connection with his testimony to the symp- 
tomatic facts on which his opinion rests. This con- 
clusion was reached on the theory that the opinions 
of such witnesses were admissible as to mental un- 
soundness, and that kleptomania was a species of 
mental derangement.' 

^ 68. Expert Testimony as to Mental Condition.-— 
1 . No question is made anywhere but that medical 
men who are conversant with insanity, who have 
made a specialty of mental diseases, and had experi- 
ence with the insane, are competent to express opin- 
ions as to mental condition, although they have not 
made any personal examination of the individual 
whose mental condition is in dispute. They can ex- 
press an opinion in answer to hypothetical ques- 
tions.' 

2. The principle is likewise established that if a 
physician visits a person, and from actual examina- 
tion or observation becomes acquainted with his 

1 Appleby v. Brock, 76 Mo. 314; State v. Erb, 74 Mo. 199. And see 
section 3, p. 8. 

« Harris v. The State, 18 Tex. Ct. of App. 287. 

' Commonwealth V. Rogers, 7 Met. (Mass.) 500; State y. Windsor, 5 
Harr. (Del.) 612. 

(11) 



162 EXPERT TESTIMONY. 

mental condition, he may give an opinion respecting 
such mental condition at that time, although the 
Witness does not appear to have made any special 
study of mental diseases.' 

As Mr. Chief Justice Dillon expressed it, in a 
case in Iowa: ''There is no more reason why he 
may not do this, than why he might not testify that 
he saw a certain person at a certain time, and that 
he was then laboring under an epileptic fit, or under 
an attack of typhus fever, or had been stricken down 
and rendered unconscious by an apoplectic stroke.''* 

We have seen that ordinary witnesses are al- 
lowed to express opinions on this subject, when 
such opinions are based on their own observation 
and knowledge of the person whose mental condition 
is in question.' Where such opinions are received, 
surely no question can be made as to the right 
of a physician to express an opinion based on per- 
sonal knowledge and observation of the party. 
But in Maine, where the opinions of non-profes- 
sional witnesses are not admissible on the question, 
it is held that a physician who made a single exam- 
ination of the person, and that to qualify himself as 
a witness in a pending litigation, was incompetent 
to express an opinion.* 

3. But another question is presented when it is 
sought to obtain the opinion of the witness in answer 
to a hypothetical question, or upon the testimony of 
other witnesses, and not upon his personal observa- 

J Baxter v. Abbott, 7 Gray (MassOi 71; State v. Felter, 25 Iowa, 67, 
75; Heald v. Thing, 45 Me. 392; McAllister v. State, 17 Ala. 435; Fotts 
V. House, 6 Ga. 324, 335 ; Hastings v. Rider, 99 Mass. 6*^2 ; Pigg v. State, 
43 Texas, 111 ; Lessee of Hoge v. Fisher, 1 Pet. C. C. 164. 

« State V. Felter, 25 Iowa, 67, 75. 

' See section 67. 

* Fayette v. Chesterville, 77 Me. 28. 



TESTIMONY AS TO MENTAL CONDITION. 163 

tion of the case. A difference of opinion exists 
whether a physician is, because of his profession, 
competent to express an opinion not based on his 
personal knowledge of the case. Some cases seem to 
require that a physician should have made the sub- 
ject of mental diseases one of special study and atten- 
tion in order to give an opinion on a hypothetical 
case.* It has been decided recently, in Kentucky, 
that if a physician is able to state that he has, as a 
physician, studied the disease of insanity sufficiently 
well to give a medical opinion as to the disease and 
diagnose the case, he is a competent witness.' 

But in some cases this special study does not appear 
to have been insisted on.' 

A very interesting case was decided in the Su- 
preme Court of California in 1880, which involved 
the question whether a Roman Catholic priest could 
express an opinion as to the sanity of a testator, 
such opinion being given by him in the character of 
an expert. The court, overruling the decision of 
the trial court, held that he was competent to testify 
as an expert. The evidence showed that he had 
been regularly educated for the priesthood in a col- 
lege in Spain, that he had officiated as a priest for 
ten years, that it was part of his preparatory educa- 
tion to become competent to pass upon the mental 
condition of communicants in his church, and that 
for that purpose physiology and psychology were 
branches of his study. It appeared, said the court, 
''That previous to officiating as a priest it was 

^ See Commonwealth y. Ricb, 14 Gray, 335; Fayette v. Cbesterville, 
77 Me. 33; Bussell v. State, 53 Miss. 367. 

« Montgomery v. Commonwealth, 11 S. W. Rep 475. 

* Schneider V. Manning, 121 Dl. 376; Potts v. House, 6 Ga. 324, 335; 
Gueti|?y. state, 66Ind. d4, 104; State v. Windsor, 5 Harr. (Del.) 512, 
542; People v. Schuyler, 106 N. Y. 298. 



164 ' EXPERT TESTIMONY. 

requisite that he should be skilled in determining 
the mental condition of those who sought the sacra- 
ments. That in every case of the administration of 
the rites of his church to invalids or dying persons, 
it was necessary for the priest to make an examina- 
tion of the mental condition of the recipient, to 
ascertain if his mind was in a proper state to reason 
or act of its own volition. That the sacrament could 
only be administered after such a preliminary ex- 
amination, and that therefore as a priest he was 
daily required to exercise and pass his judgment on 
the mental condition of persons." ^ 

While a medical expert may state his opinion 
as to the sanity or insanity of a person, and may 
give the reason on which it is founded, yet it has been 
held that inferences from facts which are within the 
range of ordinary judgment and experience are to be 
drawn by the jury, and cannot be proved as facts 
by the opinion of the expert.' 

^ 69. Form of Question as to Mental Condition.— 
We have elsewhere considered the mode of exami- 
nation to be pursued in the case of expert witnesses." 
The principles there stated are, of course, as appli- 
cable to the examination of experts in mental dis- 
eases, as to the examination of any other class of 
experts, and yet it may be well to make further 
reference to that subject in this connection. Wit- 
nesses may testify as to mental soundness and un- 
soundness sanity or insanity, capacity for transact- 
ing busintess, and as to the vigor or strength of the 
mental powers. The weight of authority is, how- 
ever, opposed to allowing the witness to express an 

1 Estate of Toomes, 54 Cnl. 510. 
« People V. Barber, 115 N. Y. 473. 
8 See Chapter III. 



FORM OP QUESTION. 165 

opinion as to whether an individual hacj the mental 
capacity to dispose of his property by will or deed/ 
When the question in issue is whether a person was 
possessed of testamentary capacity, the following 
form of question has been approved: **Were his 
mind and memory sufficiently sound to enable him 
to know and understand the business in which he 
was engaged at the time when he executed his will?"* 
The witness may also be asked for his opinion of 
the party's capacity to comprehend his property and 
make an intelligent disposition of it by will/ and 
as to his capacity to transact business.* But it has 
been held proper to decline to allow non-expert wit- 
nesses to testifj^ as to their opinion of the mental 
condition of a testator on the day of the execution 
of his will, when they did not see him on that day. 
They could give their opinion of his condition when 
they last saw him before the will was made.* 
When the witness is allowed without objection to 
express an opinion as to a testator'scapacity to make 
a will, and has been allowed to do this without 
stating the grounds for the opinion, the fact that 
the witness was not shown to have any correct un- 
derstanding of the true criterion of testamentary 
capacity, constitutes no objection to a finding and 
judgment based on such testimony.' 

In a case where the question involved was whether 

1 Schneider v. Manniog, 121 ni. 376,386; White v. Bailey, 10 Mich. 
155; Kempseyy. McOiDois, 21 Mich. 123; Gibson v. Gibson, 9 Yerg. 
(Tenn.) 332; Fairchild v.Bascom, 35 Vt. 398; Farrell v. Brennan, 32 
Mo. 328; Finney's Will, 27 Minn. 280. 

* See 1 Jarman on Wills, p. 51, and McClintock v. Curd, 32 Mo. 419. 

* Finney's Will, 27 Minn. 280, 282. And see Melendy v. Spaulding, 54 
Vt. 517. 

* Woodcock Y. Johnson, 36 Minn. 217, 219. 
^ Blake v. Bourke, 74 Iowa, 519, 523. 
•Appleby v. Brock, 71 Mo. 314. 



166 EXPERT TESTIMONY. 

an alleged imbecile had sufficient mental capacity 
to enable him to contract mamage, it was held to 
be within the discretion of the presiding judge to 
allow an expert to testify that the alleged imbecile 
was not capable of understanding his duties towards 
his wife arising out of the matrimonial union/ 

In criminal cases, where insanity is set up as a de- 
fense, the expert may be asked his opinion as to the 
condition of the prisoner's mind — whether he was 
capable of distinguishing right from wrong — and, in 
States where the courts recognize it as an element of 
defense, whether he had sufficient reason to control 
the passions which prompted the act complained of. 
But unless the conclusion of the expert has been 
reached as the result of personal knowledge of the 
defendant hinXself, the opinion should be in answer 
to a hypothetical question.' 

In a case in New York, a suggestion is made as to 
the proper mode of examining a medical witness on 
the subject of insanity. Counsel should first inquire 
of the witness as to particular sjmaptoms of insanity, 
then ask whether all, or any, and which, of the cir- 
cumstances spoken of by the witnesses upon the trial, 
are to be regarded as such symptoms, and then in- 
quire what combination of these circumstances would, 
in the opinion of the witness, amount to proof of in- 
sanity.' 

This plan seems preferable to a long hypothetical 
question, embracing many distinct facts assumed by 
counsel as established by the evidence, for the jury 

1 St. George v. Biddeford, 76 Me. 598. 

s McNaghten's Caae, 10 0. & F. 200, 212. See a quotation from the 
opinion delivered by Lord Chief Justice Tindale In this case, and which 
can be found on page 76 of this work. 

« People V. McCann, 3 Parker's Cr. R. 272, 298. 



. EVIDENCE BEARING ON INSANITY. 167 

may not be satisfied that all the facts have been es- 
tablished. And it is also preferable, for reasons 
elsewhere stated, to a question based on the assump- 
tion that everything stated by the witnesses is true.* 
Of course, if the expert has made a personal exami- 
nation he can state his opinion as based on the ex- 
amination. 

§ 70. Evidence Bearingr on Question of Insanity.-— 
The opinions of experts are received as to the causes 
tending to the development of mental unsoundness. 
For instance, the opinions of experts have been re- 
ceived showing that paralysis in old persons has a 
tendency to impair the mind.' As bearing upon the 
question of a person's insanity, or tendency to in- 
sanity, evidence is received that such person's father 
or mother were of unsound mind,' or that his uncle,* 
or brother,* or other relations suffered from mental 
disease.* 

Evidence that a person was reported in the neigh- 
borhood in which he lived to be insane, is inadmis- 
sible.^ But reputation in the family as to facts con- 
nected with the family is allowed to be shown as to 

1 See p. 61. 

« Lord V. Beard, 79 N. C 5. 

'Coughlin V. Poulson, 2 McArthar, 308; Baxter v. Abbott, 7 Gray 
(Mass.), 71. 

< Baxter v. Abbott, supra, 

« Fraser y. JeoDison, 42 Micb. 206, 22S. 

« People V. Montgomery, 18 Abb. Pr. (N. S.) 207, 250; State v. Wind- 
sor, 5 Harr. (Del.) 512. 

7 State V. Hoyt, 47 Conn. 518, 530. And so in Foster v. Brooks, 6 Ga. 
287, 292, where tbe court say : ^'By this kind of evidence a fool may be 
proved a wise man, and a philosopher a fool. Public opinion declared 
Copernicus a fool, when he promulgated the planetary system, and 
Columbus a fool when he announced the sublime idea of a New World. 
Hazardous in the extreme would it be to the rights of parties under the 
law, if they were allowed to depend upon the opinion of a neighborhood 
of the sanity of individuals.*' See also Ashcraf t v. De Armond, 44 Iowa, 
229. 



168 EXPERT TESTIMONY. 

certain matters which could not be shown bj proof 
of reputation in the neighborhood as to the same 
matters. It does not follow that in all cases where 
proof by neighborhood reputation is excluded that 
proof by reputation in the family will also be ex- 
cluded. And while it has been held that reputation 
in the family of the insanity of its members is inad- 
missible,* yet it has been held on the other hand that 
reputation in the family of the insanity of some of 
the members of the family, is admissible on the 
same principle which admits such reputation as to 
deaths, births, genealogies, etc' Unless such evi- 
dence could be introduced, it would be impossible, 
in many cases, to show the insanity of deceased 
members of the family. 

But it is highly important that evidence should not 
' be received as suggesting insanity, unless it has some 
legitimate tendency to prove it. * 'We are persuaded 
that much wrong has unwittingly been done in many 
cases, by allowing misfortunes, family calamities 
and personal peculiarities, to go to the jury as hav- 
ing some necessary tendency to unsettle the mind, 
and, therefore, some bearing on the issue of mental 
soundness.'" 

It is proper to inquire as to the person's 
state of mind, both before and after the time 

1 Walker v. State, 102 Ind. 502, 507. This case cites in support of its 
ruling cases which hold neighborhood reputation inadmissible on such 
a question. The only other case it cites Is Choice v. State, 31 Ga. 423, 
where, without doubt, it was correctly decided that family and neigh- 
borhood reputation was not admissible to prove that the prisoner was 
permanently injured in his mind by reason of an injury in his mind 
which he had received. In such a case there could be no necessity for 
resorting to such proof, as the man was alive at the very time the in- 
quiry was being made. 

* State V. Windsor, 5 Harr. (Del.) 612. 

^ Fraser v. Jennison, 42 Mich. 206, 227. 



EVIDENCE BEARING ON INSANITY. 169 

concerning which the particular inquiry is directed.* 
**Upon the question of sanity at the time of com- 
mitting an offense," says the Supreme Court of 
Massachusetts, *^the acts, conduct and habits of the 
prisoner at a subsequent time, may be competent as 
evidence in his favor. But they are not admissible, 
as of course. When admissible at all, it is upon th^ 
ground, either that they are so connected with, or 
correspond to evidence of disordered or weakened 
mental condition preceding the time of the offense, 
as to strengthen the inference of continuance, and 
carry it by the time to which the inquiry relates, 
and thus establish its existence at that time; or else 
that they are of such a character as of themselves to 
indicate unsoundness to such a degree, or of so 
permanent a nature, as to have required a longer 
period than the interval for its production or develop- 
ment.'" 

It is admissible to give in evidence particular 
acts of madness.' But it is not competent to in- 
troduce the doubt of an expert as to a person's 
sanity.* And a record of the condition and treat- 
ment of a patient in a hospital, produced at a trial 
forty years after its date by the superintendent of 
the hospital, of which he is the official custodian, 
and which purports to have been contemporaneously 
made by the attending physicians, of all cases there 

1 McAllister y. State, 17 Ala. 434, 436; McLean v. State, 16 Ala. 672; 
Grant v. Thompson, 4 Codd. 203, 208; Kione v. Einne, 9 Conn. 102; 
Norwood V. Morrow, 4 Dev. & Batt. 442, 451 ; State v. Felter, 25 Iowa, 
67, 75; Lake v. People, 1 Parker Cr. Cas. 495; Freeman v. People, 4 
Denio, 9. 

* Commonwealth v. Pomeroy, 117 Mass. 148. See, too, White v. 
Graves, 107 Mass. 325. 

« Clark V. Periam, 2 Atk. 337, 340. 

* Sanchez v. People. 22 N. Y. 147. 



170 EXPERT TESTIMONY. 

treated, and which it was their duty to make, has 
been held in Massachusetts to be admissible in evi- 
dence, as a foundation for the opinion of an expert 
as to whether it indicated mental disease of the 
patient, and that without identifying the person who 
made it/ 

. In a case where the sanity of a testatrix was 
questioned, and positive evidence of her insanity 
had been given, upon its being proved that she had 
a paralytic attack shortly before the execution of the 
will, it was held improper to prove by an expert that, 
in nine cases out of ten, paralysis did not produce 
any effect upon the mind.' If it had been shown 
that it in no case affected the mind the ruling would 
have been different. 

§ 71. Opinions Concerningr the Discretion of a 
Person of Kon-agre. — ^We have seen that the opinions 
of even non-expert witnesses are received in evidence 
on the question of sanity. And the question has 
been raised whether a like ruling should be made 
where the question arises whether a person of non- 
age is possessed of such a degree of discretion as to 
make him amenable to the criminal law. In a case 
in the Court of Appeals of Texas proof was made of 
the non-age of the accused at the time of the com- 
mission of the offense. It, therefore, became neces- 
sary for the State to prove affirmatively that the boy 
had sufficient discretion to understand the nature 
and the illegality of the act constituting the crime 
alleged. To do this the State placed witnesses on 
the stand who expressed the opinion that the accused 
was possessed of sufficient discretion to know that it 
was wrong and illegal to do the act complained of — 

1 Townsend v. Pepperell, 99 Mass. 40. 
> Lands v. Lands, 1 Grant (Penn.), ^8. 



EXAMINATION OP PERSON AS TO IMPOTENCY. 171 

that he knew right from wrong — ^and that the act done 
was a punishable crime. The boy was somewhat 
past twelve years of age. The Court of Appeals held 
that these opinions were property received. **We 
hold, therefore,'* they say, **that it was not error to 
permit the witnesses to state their opinions that the 
defendant, at the time of the commission of the 
burglary, had sufficient discretion to understand the 
nature and illegality of the acts constituting that 
crime, said witnesses having stated the facts upon 
which their opinions were based; that is, their ac- 
quaintance with the defendant; that he was a bright 
boy, could read and write, etc. As to the weight 
to be given to these opinions, that was a matter for 
the jury to consider and determine, and does not 
relate to the admissibility of the opinions as evi- 
dpnce.''* 

^ 72. Blgrht to Order an Examination of the Per- 
son by Medical Experts in Cases of Allesred Impotency* 
— Wherever impotency has been acknowledged as 
an impediment to marriage, the courts have com- 
pelled the parties, in proceedings to obtain a decree 
of nullity, to submit their persons to an examination 
by experts, whenever such an examination was nec- 
essary for the purpose of determining the fact of 
impotency. This arises from the necessity of the 
case, especially in the case of females, for impotency 
on the part of the female, which cannot be cured 
by proper medical treatment or a surgical operation, 
is said to be very rare. Divorce for the impotency 
of the female is limited to cases of an impervious or 
supposed impervious vagina, from an original mal- 
formation, or the effect of some supervening infirmity 

1 Carr r. State, 24 Tex. Cr. of App. 562, 



172 EXPERT TESTIMONY. 

or disease, as mere sterility is not sufficient ground 
for a decree of nullity, ''From the very nature of 
the case, it appears to be impossible to ascertain 
the fact of incurable impotency, especially where 
the husband is the complaining party, except by a 
proper surgical examination by skillful and compe- 
tent surgeons in connection with other testimony. 
* * * And I have no doubt as to the power of 
this court to compel the parties, in such a suit, to 
submit to a surgical examination, whenever it is 
necessary to ascertain facts which are essential to 
the proper decision of the cause." ^ As it is essen- 
tial that the impotency should be incurable,' it is 
necessary that the fact of incurability should be 
made out by the evidence of experts who have made 
a personal examination. The right of the court to 
order such an examination, and the necessity for 
making such order, can no longer be considered as 
involved in any doubt whatever.' And where the 
wife is the plaintiff, and the libel states her to have 
been a spinster at the time of the marriage, it is 
usual to order an inspection of her person, as well 
as that of the husband, because her virginity and 
capacity implies his impotency.* 

^ 73. Who should be Appointed to Make the Ex- 
amination. — According to the English practice the 
inspection was intrusted to three medical experts, 
either two physicians and a surgeon, or two sur- 
geons and a physician, the adverse party having 

^ Devenbagb t. Devenbagb, 5 Paige, 554. 

* Brown v. Brown, 1 Haggard. 523. 

>Brigg8 v. Morgan, 3 Pbilliinore, 325; Welde v. Welde, 2 Lee, 580; 

H V. P — (L. R.), 3 Prob. & Div. 126; G v. G (L. 

R.), 2 Prob. & Div. 287; Xewell v. Newell, 9 Paige, 26; Anon. 35 Ala. 
226. 

* Ooote'8 Eoc. Pr. 367. And see Norton v. Seton, 3 Phllllmore. 147. 



COMPULSORY EXAMINATION. 173 

the privilege of naming one or more.* But in Welde 
V. Welde,* decided in 1830, the inspection of the 
wife was made by midwives, while that of the hus- 
band was by physicians. In this country we find 
Chancellor Walworth declaring that the examina- 
*tion should be made by '^physicians of intelligence 
or skill, who by study or practice have made them- 
selves well acquainted with the nature and progress 
of the disease which has caused the defendant's in- 
capacity."* And in this same case the Chancellor 
said: *The defendant must therefore submit to such 
an examination by one or more respectable gentle- 
men of the medical profession, who may be named 
for that purpose by the husband, with the sanction 
of the court. ♦ ♦ ♦ Such medical attendants as 
she may think proper to call in are also to be pres- 
ent at the time of her examination by the complain- 
ant's professional witnesses.'' In another case it 
is said that in the selection of the experts due re- 
gard will be paid to the feeling and the wishes of 
the defendant.* Proper respect for the feelings of 
the party to be examined requires that the number 
of the experts appointed to make the examination 
should be restricted to the smallest number consist- 
ent with the interests of justice. 

^ 74. When Compulsory Examination in snch 
Cases will not be Ordered. — Where the party against 
whom impotency is alleged, has already submitted 
to an examination of competent physicians, whose 
testimony can be readily obtained, it is said that a 



^ Ooote's £cc. Prac. 388. And see Dean v. Aveling, 1 Robertson, 279. 

s 2 Lee, 580. 

« Xewell V. Newell, 9 Paige, 26. 

* Devenbagh v. Devenbagh, 5 Paige. 554, 558. 



174 EXPERT TESTIMONY. 

further examination will not be insisted on/ But 
where the wife claimed that her incapacity existed 
now, but not at the time of the marriage, and to 
prove her claim produced the certificate of two 
medical gentlemen who had examined her recently, 
expressing their belief that the incapacity had arisen 
since the marriage, Chancellor Walworth, upon 
the application of the husband, ordered another 
examination, declaring that under the peculiar cir- 
cumstances of the case, the complainant ought not 
to be compelled to leave the decision of his cause 
to rest solely upon -the ex parte examination made 
by the physicians selected by the wife.' 

^ 75. SummoninfiT Experts to Assist in Determin- 
Inir the Proper Interrogratories.— The usual practice 
in such cases has been to direct a reference to a 
master, to take the testimony and report thereon. 
And when the parties do not agree as to the inter- 
rogatories to be propounded on the examination, 
they must be settled by the master, who may sum- 
mon physicians or surgeons to assist him in deter- 
mining the necessary interrogatories. It is necessary 
that the. defendant, in connection with the exami- 
nation by the experts, should ans'wer all needful 
inquiries propounded by them, and the answers 
should be given under oath. This subject was con- 
sidered by Chancellor Walworth at an early day in 
New York. *'The interrogatories to be propounded 
to her (the defendant),'' he says, *'must be such 
only as relate to this alleged incapacity, and the 
commencement and progress of the disease by which 
it has probably been produced. And if the parties 

1 Brown v. Brown, 1 Haggard, 523, note a; Devenbagh v. Devenbagh, 
JS Paige, 544, 558. 
« Newell V. Newell, 9 Paige, 26. 



STRUCTURAL DEFECT. 175 

cannot agree upon the proper interrogatories, after 
having consulted with their physicians on the sub- 
ject, the master in settling the interrogatories to be 
propounded to the defendant in connection with her 
examination by medical gentlemen, is to be at lib- 
erty to summon before him, and examine on oath, 
any physicians or surgeons, to enable him to decide 
what interrogatories may be necessary or proper to 
be allowed.''^ 

§ 76. The Subject of Inquiry — Structural Defect 
— Impracticability of Consummation. — The inquiry 
of the experts is to be directed not merely to the 
discovery of whether a -structural defect exists. It 
is possible that although no structural defect exists, 
the case may show the impracticability of consum- 
mation. In a recent case in England,' a divorce 
was obtained, where the professional witnesses swore 
that no structural defect existed, but there was an 
impracticability of consummation. As this is im- 
portant, we quote the language of the court: 'The 
impossibility must be practical. It cannot be nec- 
essary to show that the woman is so formed that 
connection is physically impossible, if it can be 
shown that it is possible only under conditions to 
which the husband would not be justified in resort- 
ing. The absence of a physical structural defect 
cannot be sufficient to render a marriage valid, if it 
be shown that connection is practically impossible, 
or even if it be shown that it is only practicable 
after a remedy has been applied, which the husband 
cannot enforce, and which the wife, whether wilfully 
or acting under the influence of hysteria, will not 

* Newell V. Ne^ ell, 9 Paige (N. Y.) , 26, 27. ^ 

• O V. G , 2 Prob. A Div. (L. R.) 281. 



176 EXPERT TESTIMONY. 

submit to." * But a merely wilful and wrongful re- 
fusal of marital intercourse will never justify a 
decree of nullity by reason of impotence, although 
if persisted in long enough, the court may infer that 
it arises from incapacity.' 

^ 77. Defray IniT the Expenses of the Examination 
by the Experts. — The husband must, of course, fur- 
nish all the necessary funds to pay the expenses of 
the surgical examination.* If the wife refuses to 
submit herself to the examination ordered by the 
court, the allowance of her alimony may be sus- 
pended until she consents to the examination as 
directed.* And either party, refusing to submit to 
such an examination, might undoubtedly be pun- 
ished for contempt of co\irt.' But as a refusal to 
submit to the examination has been regarded as 
evidence of incapacity," a party will perhaps ordi- 
narily hesitate before refusing compliance with the 
order of the court in such cases. 

^ 78. Compulsory Examination in Criminal Cases. 
— ^Whether the court has power to order a compul- 
sory examination by experts of the person of a de- 
fendant in a criminal proceeding, is an important 
question which has been somewhat considered bj'^ 
the courts, and upon which a diflference of opinion 
exists. The question turns on the construction to 

1 See al8o P v. L , 3 Prob. Division (L. R.), 73, note 2; 

H V. P , 3 Prob. & Dlv. (L. R.) 126; 

• S V. A , 3 Probate Division (L. R.), 72. 

s Devenbagh v. Devenbagh,- 5 Paige, 554, 558. 

♦ Newell V. Newell, 9 Paige, 26. 

« See Schroeder v. C, R. I., etc. R. Co., 47 Iowa, 375. 

< Harrison v. Harrison, 4 Moore, P. C. 96, 103, Lord Brougham's opin- 
ion. See, too, H v. P , 3 Prob. & Div. (L. R.) 126. The 

court should be satisfied, however, that there was no collusion between 
the parties. Pollard v. Wyborn, 1 Hagg. Ecc. R. 725; Sparrow v. Har- 
rison, 3 Curteis, 16. 



EXAMINATION IN CRIMINAL CASES. 177 

be placed on the constitutional provisions which 
provide that the accused shall not be compelled to 
give evidence against himself in any criminal case. 
Such a provision is found in the Constitution of 
the United States, and in the Constitution of the 
several States, with hardly an exception. In Jacob's 
Case^ the Supreme Court of North Carolina, in 1858, 
held that a defendant could not be compelled to 
exhibit himself to the inspection of a jury for the 
purpose of enabling them to determine his status as 
a free negro. And this ruling was approved by the 
same court in Johnson^ s Case^ in 1872. Two years 
later the subject again came up in the same court 
in Garret's GaseJ" In that case it appeared that the 
defendant had stated to persons present on the 
night of the homicide, that the deceased came to 
her death by her clothes accidently catching fire 
while the deceased was asleep, and that she, the 
defendant, in attempting to put out the flames 
burnt one of her hands. At the coroner's inquest 
the defendant was compelled to unwrap the hand 
which she had stated was burnt, and exhibit it to a 
physician, in order that he might see whether there 
was any indication of burn upon it. And it was 
held that the actual conditionof her hand, although 
she was ordered bv the coroner to exhibit it to the 
doctor, was admissible evidence. Jacob's Case was 
distinguished as follows: 'The distinction between 
that and our case is that in Jacob's Case, the pris- 
oner himself, on trial, was compelled to exhibit him- 
self to the jury, that they might see that he was 

15 Jones, 259. 
» 67 N. C. 58. 
' 71 N. C. 68. 

(12) 



178 EXPERT TESTIMONY. 

within the prohibited degree of color ; thus he was 
forced to become a witness against himself. This 
was held to be error. In our case, not the prisoner, 
but the witnesses, were called to prove what they 
saw upon inspecting the prisoner's hand, although 
that inspection was obtained by intimidation." In 
Nevada it has been held that the court could lawfully 
compel a criminal defendant, against his objection, 
to exhibit his bare arm, for the purpose of determin- 
ing whether it had on it certain tattoo marks. The 
question of identity was raised, and a witness had 
testified that he knew the defendant, and knew that 
he had tattoo marks (describing them) on his right 
fore-arm.^ This is one of the best considered cases 
on this side of the question. The court declared 
that the Constitution prohibited the State from com- 
pelling a defendant to be a witness against himself, 
because it was believed that he might, by the flat- 
tery of hope or suspicion of fear, be induced to tell 
a falsehood, and that this reason was inapplicable 
to an examination of the person, which could not 
in the very nature of things lead to a falsehood. 
*'The Constitution means," said the court, **just 
what a fair and reasonable interpretation of its lan- 
guage imports. No person shall be compelled to be 
a witness, that is, to testify, against himself. To use 
the common phrase, ' it doses the mouth ' of the 
prisoner. A defendant in a criminal case cannot be 
compelled to give evidence under oath or affirma- 
tion, or make any statement for the purpose of prov- 
ing or disproving any question at issue before any 
tribunal, court, judge, or magistrate." 

The same question was similarly decided in the 

1 state V. Ah Chuey, 14 Nev. 79; s. c, 1 Cr. Law Mag. 634. 



EXAMINATION IN CRIMINAL CASES. 179 

Court of Appeals of Texas, in 1379, although the 
question was presented in a different form. In that 
case testimony was held admissible that the foot- 
prints, which the prisoner was compelled to make in 
an ash heap, corresponded with those made on the 
night of the murder about the premises of the de- 
ceased.^ And a similar ruling on a similar state of 
facts was made in Nbrth Carolina.' But a diflferent 
conclusion has been reached in Georgia,' and in 
Tennessee* on a like state of facts. In Michi- 
gan, on the trial of one for burglary, a rub- 
ber shoe was produced, and when the prisoner took 
the stand in his own behalf he was asked .to try it 
on, which he did without objection. He was then 
asked to measure it, and his counsel objected, but 
the objection was overruled, and he made the meas- 
urement and stated the result. The court held that 
if there had been any objection made to the pris- 
oner's trying on the shoe the court would have had 
no authority to require it; and that even the 
simple matter of measurement he might have 
declined had he seen fit.* And in New York 
the subject was presented in a case which in- 
volved the question whether the prisoner had 
been delivered of a child. The coroner directed 
two physicians to go -to the jail and make an 
examination of the woman, and determine whether 
she had recently been delivered of a child or not. 
She denied having been pregnant, and objected to 



J Walker v. Stole, 7 Tex. Ct. of App. 245, 265. 
> Stote y. Graham, 74 N. 0. 646; 8. c, 21 Am. Rep. 493. 
« Day V. Stote, 63 Ga. 667; Blackwell v. Stote, 67 Ga. 76; 8. c, 3 Or. 
Law Hag. 394. 
^ Stokes y. State, 5 Baxt. 519; s. c, 30 Am. Bep. 72. 
< People y. Mead, 50 Mich. 228, 231. 



180 EXPERT TESTIMONY. 

being examined by the physicians. But on being 
told that if she did not submit to the examination 
she would be compelled to submit by force, she 
yielded, and her private parts were examined by the 
physicians with a speculum, and they examined her 
breasts. The court refused to allow the physicians 
to testify, declaring that such an examination was a 
violation of the spirit and meaning of the Constitu- 
tion, which declares that **no person shall be com- 
pelled in any criminal case to be a witness against 
himself.'' *'They might as well have sworn the 
prisoner, and compelled her by threats to testify 
that she had been pregnant and been delivered of 
the child, as to have compelled her by threats to 
allow them to look into her person, with the aid of 
a speculum, to ascertain whether she had been preg- 
nant and had been recently delivered of a child. ''^ 
In a recent case in Iowa a physician made an ex- 
amination of the face and neck of the , defendant 
while in jail, and testified that he found several 
scratches. At the trial the defendant did not object 
to the admission of the testimony, but on appeal he 
insisted that there was error in admitting it, and 
claimed that the testimony was in respect to an ex- 
amination to which he was compelled to submit, 
and that such examination was in violation of his 
constitutional rights, and that being so that the ad- 
mission of the testimony was error, even though not 
obj ected to . The court replying to this say : ' ' With- 
out considering the legal questions suggested, it is 
sufficient to say that we see no evidence that the de- 
fendant was compelled to submit to an examination . 
It is true the evidence shows, that when Dr. Har- 

1 People V. McCoy, 45 How. Pr. 216. 



COMPULSORY EXAMINATION. 181 

man went into the jail, the sheriff accompanied him, 
but there is no evidence that the sheriff did or said 
anything in respect to the examination. We think 
that there is no error in admitting the evidence.'" 

It will be observed that in some of the cases in which 
the question has been considered, the right to order 
an examination of the person by experts was not 
directly involved, but they all involve the same 
principle, and it has been necessary to consider them 
all in this connection. The result of the examina- 
tion of the cases shows a decided conflict of author- 
ities, and that the question is still unsettled and 
open. 

$ 79. Compalsory Examination in Actions for 
i>amaires. — In actions brought for the recovery of 
damages for personal injuries, the courts have, in 
some cases, on the application of the defendant, 
compelled the plaintiff to submit his person to an 
examination by physicians and surgeons for the pur- 
pose of ascertaining the character and extent of his 
injuries. The purpose of all judicial inquiries should 
be the ascertainment of the facts to the end that 
there may be an administration of justice. It is 
difficult to see, therefore, why, in civil actions, 
it should not be at least within the discre- 
tion of a trial court in proper cases and un- 
der proper safeguards to direct the plaintiff 
to submit his person to medical inspection. And 
this view of the matter has been taken by some 
of the courts. Thus, in a case in Iowa, the court 
declared that refusal to submit to an examination 
so ordered would render the party liable to punish- 
ment for contempt of court, and if continued so long 

' State V. Struble, 71 Iowa, 11, 16. 



182 EXPERT TESTIMONY. 

as to effectively obstruct the progress of the case, all 
allegations as to personal injury might be stricken 
from the pleadings. And it is declared that, '*un- 
der the explicit directions of the court, the physicians 
should have been restrained from imperiling in any 
degree the life or health of the plaintiff. The use 
of ansBsthetics, opiates or drugs of any kind, should 
have been forbidden, if indeed it had been proposed, 
and it should have prescribed that he should be sub- 
jected to no tests painful in their character." * The 
above case was decided in 1877, and the conclusion 
reached was arrived at irrespective of authority, the 
court declaring that it was unable to find any case 
in which the question had been considered. But 
the same question had been considered in New York 
in 1868, and it was there held that the court, in an 
action for malpractice against a surgeon, could com- 
pel the plaintiff to submit her person to an examina- 
tion at the hands of the defendant's experts.* *'It 
is not proper, ' ' said the court, * 'that the cause should 
be left to be determined on the evidence of two or 

1 Schroder v. The R. I. & P. R. R. Co., 47 Iowa, 375. 

« Walsh V. Sayre, 62 How. Pr. 334. The complaint alleged that the 
defendant, in treating the plaintiff for the injury in the neighhorhood of 
her hips, had so negligenUy and unskiUfuUy as to puncture the joint, 
causing the synovial Huid which lubricates the cartilaginous surface of 
the joint to escape, thereby seriously and permanently injuring the hip, 
and rendering the whole leg usel^s, and perhaps rendering its amputa- 
tion necessary. The defendant petitioned the court, stating that, since 
the commencement of the action, he had endeavored to obtain leave to 
make a professional examination of the affected part, but had been re- 
fused permission so to do. That he could not safely proceed to trial, 
nor properly defend the action, unless he could have a personal inspec- 
tion and professional examination of the affected parts, and praying that 
said examination and personal inspection by himself and such other 
skillful and eminent surgeons as he might name might be had under the 
direction of the sheriff, or a referee appointed for that purpose, at such 
time and place, and in such form or manner, as to the court might seem 
just and proper. 



COMPULSORY EXAMINATION, 183 

three surgeons, selected by the plaintiff out of the 
whole body of surgeons, perhaps because their views 
are adverse to the defendant's; but it is eminently 
proper that defendant should have the benefit of the 
testimony of one or two surgeons of his own selec- 
tion, and that these surgeons should have the re- 
quisite means of forming a correct judgment, one of 
which is the examination of the affected part.'' 
There are other cases to the same effect/ 

The cases above referred to recognize the power 
of the court in its discretion to order such an inspec- 
tion. But in one instance at least the defendant 
has been recognized as being entitled as matter of 
right to have such an order made. In that case it 
was declared that where the plaintiff in such an ac- 
tion alleges his injuries to be of a permanent nature, 
the defendant is entitled as a matter of right rather 
than of favor to have the court order the plaintiff to 
submit his person to the examination of a surgeon, 
unless there is already so much expert evidence in 
the case that the court in its discretion may decline 
to make the order.' 

But there are cases in which the power of the 
court to make such an order has been denied. 
The question was considered in Missouri in 1873, 
in an action against a railroad company for personal 
injuries. The point raised was summarily disposed 
of in the opinion, the power to order the examination 
being denied. The court merely said: * The proposal 



1 White y. Milwaukee, etc. R. R. Co., 61 Wis. 536; Miami, etc. R. R. 
Co. y. Baily, 37 Ohio St. 104; Shephard y. Missouri, etc. R. R. Co., 85 
Mo. 629; Atchison, etc. R. R. Co. y Thul, 29 Kan. 466; International, 
etc. R. R. Co. y. Underwood, 64 Tex. 464; Missouri Pacific, etc. R.R. 
Co. y. Johnson, 72 Tex. 95. 

* Sibley y. Smith, 46 Ark. 275. 



184 EXPERT TESTIMONY. 

to the court to call in two surgeons and have the 
plaintiif examined during the progress of the trial, 
as to the extent of her injuries, is unknown to our 
practice and to the law. There was abundant ev- 
idence on this subject on both sides; any opinion of 
physicians or surgeons at the time would have only 
been cumulative evidence at best, and the court had 
no power to enforce such an order."* That case has 
been since overruled.' In Illinois the right to order 
such an examination was also denied, but there also 
the matter was disposed of without discussion.' 
There are a few other cases to the same effect.* 

In a recent case in Indiana, it was held no error 
to decline to order a submission to examination 
when the application was made by the defendant 
after the plaintiff had closed his evidence. The 
court say: **It is undoubtedly true that the court 
may in its discretion, in a proper case, if applica- 
tion is seasonably made, require the plaintiff to 
submit his person to a reasonable examination, by 
competent physicians and surgeons, when necessary 
to ascertain the nature, extent and permanency of 
injuries; but where the application is not made 
until after the close of the plaintifTs evidence, and 
no reason is shown for the delay in making the ap- 
plication, it will not be error to refuse the order, 
especially where the plaintiff offers to submit to a 
private examination as soon as the attendance of 
medical experts on his behalf can be secured.'' * 

1 Loyd V. Hannibal, etc. R. R. Co., 53 Mo. 609, 515, 516. 

s Shephard v. Missouri, etc. R. R. Co., 85 Mo. 629. 

3 Parker v. Enslow, 102 Dl. 272, 279. 

* Roberts v. Ogdensburgh, etc. R. R. Co., 29 Hun (N. Y.), 154; Stu- 
art V. Haven, 17 Neb. 214; Sioux City, etc. R. R. Co. v. Finlayson, 16 
Neb. 578, 588. 

« Hess V. Lowrey (Sup. Ct. Ind. 1890), 7 L. R. A. 90. 



REFUSAL TO BE EXAMINED. 185 

When the action is not brought to recover dam- 
ages for the injury done to the person, but is for 
an injury to the character of another, a diflPerent 
question is presented. Thus, where an action for 
slander was brought by an unmarried woman, it 
having been alleged that the defendant had spoken 
of the plaintiff that she was a whore, and had be- 
come pregnant, and had suffered an abortion to be 
procured upon her, it was held that the defendant 
was not entitled, imder a plea of justification, to an 
order requiring the plaintiff to submit her person to 
an examination by medical experts.* The court de- 
clared: **One should not publish and circulate 
slanderous charges against a young unmarried fe- 
male, * * unless he is able to substantiate them 
when called upon to do so, without calling upon 
the court to aid in the search for evidence in his be- 
half by ordering and subjecting her to an indelicate 
examination of her person, with the hope of obtain- 
ing some information advantageous to the defense, 
and calling to his aid the power of the court as a 
means of humiliating her still more." The court 
declared it had not been cited to anj^ case where 
such an examination had been held proper, and 
added that it thought no such case could be found. 

§ 80. Refusal to be ^Examined by a Particular Ex- 
pert who Is Personally Obnoxious,— In a case where 
the trial court, on application of the defendant, had 
ordered the plaintiff to submit to an examination of 
his person, the defendant selected two medical ex- 
perts to make the examination, to one of whom the 
plaintiff objected, stating that he declined to be ex- 
amined by the objectionable physician, or in his 

1 Kern v. Bridwell, 119 Ind, 226. 



186 EXPERT TESTIMONY. 

presence, at the same time stating that his declina- 
tion was based on his '^personal aversion' ' to the 
expert in question, adding that he tendered himself 
for examination by the other expert and any other 
respectable physician and his own consulting physi- 
cian whom he desired to be present. Thereupon the 
defendant called the attention of the court to its or- 
der, and to the refusal as above stated, and asked 
the court to enforce its order and require the plaint- 
iff to submit to the examination of the two physi- 
cians whom the defendant had selected, including 
the obnoxious one above referred to. The court de- 
clined to enforce its order, saying it would not com- 
pel the plaintiff to submit to an examination by a 
physician to whom he had personal aversion. On 
appeal the Supreme Court held that the trial court- 
did not err in refusing to compel the plaintiff to be 
examined by a physician towards whom he had a 
personal aversion, although his objection did not go 
to the competency or integrity of the physician pro- 
posed.^ 

When a court intends to order a party to submit 
to a personal examination, the better plan would 
seem to be for the court to appoint one or more dis- 
interested experts either of its own selection, or, bet- 
ter yet, such as may be agreed upon by both parties. 

§ 81. The Opinions of Medical Men in Miscellane- 
ous Cases. — ^We have stated that the opinions of 
medical experts are admissible in evidence upon 
questions that are strictly and legitimately embraced 
in their profession and practice. The application of 
this principle made by the courts in certain miscel- 
laneous cases may be helpful, and will here be 

1 Missouri Pacific R. R. Co. v. Johnson, 72 Tex. 95, 101, (1888) . 



OPINIONS IN MISCELLANEOUS CASES. 187 

given. Their opinions have been held admissible 
as .to the tendency of an overflow of water upon 
premises to create sickness;^ as to the permanency 
of a person's loss of vision;' as to the condition of 
the body of the deceased as to fullness or paucity of 
blood;' upon the question of whether it be good 
medical practice to withhold from a patient in a 
particular emergency, or under given or supposed 
circumstances, a knowledge of the danger and ex- 
tent of his disease;* as to the condition of human re- 
mains after burial; as to how long before decay 
w^ould set in, and when it would be complete;* 
whether a certain routine of diet was injurious to 
the health of children;' as to the manner in which 
prolapsus uteri would be caused, and the degree of 
violence that would produce it;' whether the appear- 
ance of the extravasated blood in the neck was an 
indication of mechanical violence or disease, and 
whether the clot of blood found on the post-mortem 
examination could have existed twelve hours with- 
out causing death;" whether a child was a *'full time 
child;"* as to what indications would have been 
found on the post-mortem examination of a body 
taken from the water, if the persdn had been suffo- 
cated first and then had fallen into the water; *^ as 
to the curability of a disease, the nature and cause 



1 City of Eufaula v. Simmons, 86 Ala. 615. 

« Tinney v. New Jersey Steamboat Co., 12 Abb. Pr. (N. S.) 1. 

« O'Mara v. Commonwealth, 75 Pa. St. 424. 

* Twombly v. Leach, 11 Cush. 405. 
A State V. Secrest, RO N. C. 450, 453. 

« Crowley v. People, 83 N. Y. 464, 471. 

^ Napier v. Ferguson, 2 P. <fc B. (New Brunswick) 415. 

8 state V. Pike, 65 Me. Ill, 114. 

• Toung V. Makepeace, 103 Mass. 50. 

M Erickson v. Smith, 2 Abb. App. Decis. (N. Y.) 64. 



188 EXPERT TESTIMONY. 

of which he has described;* whether a certain wound 
given on the chest endangered life;* as to the •in- 
juries likely to be produced under a given state of 
facts, the precise facts being stated;' as to the sex of 
a person from an examination of the skeleton, al- 
though it is an error to receive the opinion of a non- 
professional witness on such a question;* and 
whether a child would have been born alive if it 
had received medical assistance in time.*^ A med- 
ical expert can be asked as to what in his judgment 
was the probability of recovery, assuming such and 
such symptons and condition;' and as to whether a 
certain injury was likely to produce or be followed 
by certain diseases,^ it being alwjays proper to ask a 
medical expert as to the future consequences which 
are expected to follow the injury complained of/ A 
medical witness can always testify concerning the 
nature and extent qf an injury/ They have been 
allowed to testify whether fright would produce 
heart trouble/'' 

^82. Opinions of Non-Professional Witnesses on 
Questions Related to Medical Science. — We will con- 
sider first the cases in which such opinions have 
been received. A physical fact within the experi- 
ence of a witness is not so much a scientific question 

^ Matteson v. New York, etc. R. R. Co., 35 N. Y. 487. 

2 Riimsey v. People, 19 N. Y. 41. 

8 Wendell v. Troy, 39 Barb. (N. Y.) 329. 

* Wilson V. State, 41 Tex. 320, 321. 

* Western Union Telegraph Co. v. Cooper, 71 Tex. 607, 512. 

« Peterson v. Chicago, etc. R. R. Co., 38 Minn. 611 ; Grlswold v- New 
York, etc. R. R. Co., 23 N. Y. Sap. R. 729. 

7 Kelly V. Erie Telegraph & Telephone Co., 34 Minn. 321. 

8 Strohm v. New York, etc. R. R. Co., 96 N. Y. 305. 

^Evansvllle, etc. R. R. Co. v. Crist, 116 Ind. 446; Louisville, etc. R.R, 
Co. V. Snider, 117 Ind. 435. 
w niinois Central R. R. Co. v. Latimer (111 ;, 21 N. E. Rep. 7. 



OPINIONS RELATED TO MEDICAL SCIENCE. ' 189 

as to exclude non-expert testimony/ A person may 
therefor testify as to his pain, suffering, or internal 
condition, so far as the same is perceptible to his 
senses.' He may testify as to the immediate phys- 
ical consequences of an injury received by him." 
Such evidence is considered to relate to facts and 
not to be mere opinion. It is not necessary, there- 
fore, that a person should be an expert in order to 
testify that his own ribs were broken;* or that a 
certain substance takes away the pain of filling 
teeth, the substance having been used on him.'^ 

Not only may a non-expert thus testify concern- 
ing his own condition, but he'may testify concern- 
ing the health and physical condition of another, 
whom he has had an opportunity of observing. • 
Thus, such a witness may state that a third person 
was sick,' or in poor health,* or was formerly in 
good health,' and then grew worse, ^° or appeared to 
be well or ill." It has been held in Pennsylvania 
that while a non-expert witness cannot testify that a 
person was afflicted with a special disease, yet he 
may testify that he observed in such person a con- 

i Bragg V. Citjr of Moberly, 17 Mo. App. 221 : Dolan v. City of Mo- 
berly, 17 Mo. App. 436. 
» Wright V. City of Fort Howard, 60 Wis. 119. 
8 Bland v. S. P. R. R. Co., 65 Cal. 626. 

* Ferguson v. Davis Co., 57 Iowa, 601. 
'Reeve v. Dennett, 145 Mass. 23. 

•Carthage Turnpike Co. v. Andrews, 102 Ind. 138. 

' Chicago, etc. R. R. Co. v. George, 19 m. 510, 515; Bennett v. Fall, 
26 Ala. 605; Barker v. Coleman, 35 Ala. 221; Stone v. Watson, 37 Ala. 
279; Hlgbie v. Guardian Mutual Life Ins. Co., 63 N. Y. 603; Shawnee- 
town V. Mason, 82 HI. 337. See Thompson v. Bertrand, 23 Ark. 730. 

8 Carthage Turnpike Co. v. Andrewp, 102 Ind. 138. 

* Smalley v. Appleton, 70 Wis. 340 : Parker v. Boston Steamboat Co., 
109 Mass. 449, distinguishing Ashland v. Marlborough, 99 Mass. 48. 

w Louisville, etc. R. R. Co. v. Wood, 113 Ind. 544. 

11 Oanady v. Lynch, 27 Minn. 435; Wilkenson v. Mosely, 30 Ala. 562. 



190 EXPERT TESTIMONY. 

dition which was in feet a symptom of the disease.' 
A wife has been permitted to testify that her hus- 
band had a rupture, the testimony being received 
upon the theorj^ that it was not a fact resting in 
opinion, and that its determination did not involve 
any question of science or skill.' And a husband 
has been allowed to testify that he thought 
his wife's limb was broken.' In Alabama it 
is said that any person may speak of the ex- 
istence of disease in another when the disease 
is perceptible by the senses.* It seems that a 
person who is not a physician may testify whether it 
was necessary for a party to receive medical assist- 
ance, and it has been even said that he may testify 
as to the length of time such assistance was neces- 
sary. It was said that **in a question of this kind, 
any person of intelligence is capable of judging of 
the necessity of medical advice and services. It is 
universally acted upon by all classes of mankind, 
and we are not disposed to lay down a rule that 
none but a physician is competent to prove that a 
person is sick, or so sick as to require medical advice. ' '* 
And a non-expert has been permitted to testify as 
to his opinion concerning the soundness of a slave, 
stating the facts upon which his opinion was 
founded. • On a trial under an indictment for in- 
fanticide, a non-professional witness who examined 
the dead body of the child was allowed to testify 



A United Brethren Mut. Aid Society v. O'Hara, 120 Pa. St. 256. 

* Duntz V. Van Beuren, 12 N. Y. Sup. Ct. 648. 

» Gophen v. England (Ind.), 21 N. E. Rep. 977. 

^ Milton Y. Rowland, 11 Ala. 732; Fountain v. Brown, 38 Ala. 72; 
Wilkeson v. Mosely, 30 Ala. 562. 
' « Chicago etc. R. R. v. George, 19 III. 510. 

« Norton v. Moore, 40 Tenn. 483. 



OPINIONS BELATED TO MEDICAL SCIENCE. 191 

that he '* considered it fully developed'' — ^this being 
considered a matter of fact open to observation, and 
the witness being subject to cross-examination as to 
his use of the words and his knowledge of their 
meaning.' Such a witness having seen the wounded 
person has been allowed to describe the wound as 
being inflamed and tender to the touch; * and to 
testify as to the condition of a person's health and 
body before and after an injury.' Non-expert wit- 
nesses have been allowed to say whether a person 
has had the full use of his arm since a certain in- 
jury, and has been able to work;* and such witnesses 
can testify to a person's changed appearance since 
an injury.' 

The right of an ordinary witness to express an 
opinion concerning the mental condition of another 
has been previously considered. • 

We will now consider the cases in which the opin- 
ions of non-professional witnesses have not been re- 
ceived. As a rule one who is not skilled in the 
science or practice of medicine, is not competent to 
express an opinion that a person is aflBiicted with a 
particular disease,^ or whether there was any case of a 
particular disease in a certain neighborhood.* The 
opinionte of unprofessional witnesses have been held 
inadmissible on the question whether a woman had 

1 Hubbard y. State, 72 Ala. 164. 

« Craig V. GerriPh, 58 N. H. 513. 

« TownsdiD v. Natt, 19 Kan. 282. 

* HarrU v. Detroit, etc. K. R. Co. (Mich.), 42 N. W. Rep. 1111. 

« Bridge V. Oshkosh, 71 Wis. 363; Weber v. Creston, 75 Iowa, 16. 

^ See section 66. 

7 Lush y. McDaaiel, 13 Ired. (N. C), 485; Thompson y.Bert'-and, 23 
Ark. 730; Chicago, etc. R. R. Co.'y. George, 19 Ul. 510, 516; Shawnee- 
towiiy. Mason, 82 ni. 337, 339; U. B. Mutual Aid Society y. O'Hara, 
120 Pa. St. 256. 

« Evans y. People, 12 Mich. 27. 



192 EXPERT TESTIMONY. 

been pregnant/ A non-professional witness who 
had known the injured person foji- a number of years 
before the accident and who was with such person 
several weeks thereafter, has not been allowed to 
give an opinion as to the effect of the injury upon 
such person's health.' The fact that one who is not 
a physician or surgeon has been held incompetent 
to express an opinion as to the instrument with 
which a wound was made is elsewhere considered.' 
In a case in Michigan the court says: ''No witness, 
medical or otherwise, can be allowed to give testi- 
mony from his observation concerning the nature of 
a person's illness or its causes without proof, both 
of a sufficient examination and such knowledge or 
experience as will qualify him to offer an opinion.''* 

A daughter, who was not an expert, has been held 
incompetent to testify that her mother suffered in 
her head and stomach.* And the testimony of 
workmen, not shown to be experts, that certain in- 
fected rags were the cause of small-pox, which they 
or their children had taken, has been held incom- 
petent. • On a trial for murder where the defense 
was insanity, the defendant's mother testified that 
he had fits when a child, but she was held incom- 
petent to answer the question as to what effect the 
fits had on him.' 

^ 83. Experts in the Diseases of Animals. — ^No 
question is made but that a veterinary surgeon is 
competent to express an opinion as an expert as to 

1 Boies V. McAllister, 12 Me. 310. 

« Monongahela Water Co. v. Stewartson, 96 Pa. St. 436. 

8 See section 52. 

< People V. Olmstead, 30 Mich. 434. 

« Lombard, etc. B. R. Co. v. Christian, 124 Pa. St. 114. 

» Dushane v. Benedict, 120 U. S. 647. 

^ State V. Hockett, 70 Iowa, 442. 



EXPERTS IN DISEASES OP ANIMALS. 193 

the condition and diseases of animals/ But a per- 
son who is not a veterinary surgeon may give testi- 
mony in such cases. The courts have found it nec- 
essary to establish a somewhat liberal rule as to the 
competency of persons to give evidence on the sub- 
ject of diseases in animals, and it is not required 
that the witness, to be competent, should have 
made the treatment of diseases in domestic animals 
a distinct profession. All that is insisted on is that 
the witness should have had much experience with 
such diseases and with their treatment. He is then 
allowed to state the facts and express an opinion 
based thereon." In a case in Indiana a witness, who 
was not a farrier, was called to testify as to the dis- 
ease of the eyes of a horse. The witness professed 
to understand when he examined a horse whether 
his eyes were good or not, though he acknowledged 
that there might be diseases of the eyes of horses 
with which he was unacquainted. He was asked, 
whether, from his knowledge of the diseases of 
horses' eyes, he believed the disease of the eyes of the 
horse in question had been of long standing, and 
had existed before the exchange of horses made by 
the parties. It was held that he should be permit- 
ted to answer, and it was said: ''We have scarcely 
any veterinary surgeons in our country, and the 
opinions of men of such knowledge as this witness 
appears to have, must be admitted in cases like the 
present.'' ' 



1 Missouri Pacific R. R. Co. v. Finley, 38 Kan. 550; Pinney v. Cahill, 
48 Mich. 584. 

'See Slater v. Wilcox, 57 Barb. 604, 608; Vates v. Cornelius, 59 Wis. 
615; Johnson v. Mofflt, 19 Mo. App. 159; Peer v. Ryan, 54 Mich. 224. 

3 House V. Fort, 4 Blackf . (Ind.) 293. 

(13) 



194 EXPERT TESTIMONY. 

But a person wlio is not a physician, surgeon or 
veterinarian, and who has had no particular ex- 
perience with cattle, but whose knowledge is de- 
rived simply from reading and some little observa- 
tion, has been held not competent to testify as an 
expert in relation to disease injjanimals.* 

It has been held that witnesses cannot testify that 
whistling in horses is an unsoundness, or that it is 
universally considered so among*horsemen, that be- 
ing a question for the jury.* The same case holds 
that a veterinary surgeon who has ridden after and 
seen a horse driven may testify^whether he saw any 
indications about him of being a whistler. 

It has been held not competent to introduce the 
testimony of a veterinary surgeon that horses fre- 
quently fall down and die instantly without any ap- 
parent cause, such evidence not being in the nature 
.of an expert opinion.' 

1 Missouri PacWc R. R. Co. v. Finley, 38 KaD. 560. 
« Moore v. Haviland (Vermont), 17 Atl. Rep. 725. 
- 3 McPherriD v. Jennings, 66 Iowa, 622. 



THE LAW AS A SUBJECT. 195 



CHAPTER V. 



EXPERT TESTIMONY IN THE SCIENCE OF LAW. 

Section. 

84. The Law as a Subject for the Testimony of Experts. 

85. Of what Laws Courts take Judicial Notice, and Expert Testimony 

is not Received. 

86. Of what Laws Courts do not take Judicial Notice, and Expert 

Testimony may be Received. 

87. Proof of the Unwritten Law of a Foreign State. 

88. Proof by Experts of the Written Law of Foreign States— Al- 

lowed in England. 

89. Manner of Proof in the United States of the Written Law of 

Foreign States. 

90. Proving the Writen Law, in the Discretion of the Court, by the 

Testimony of Experts. 

91. Expert Testimony as to the Construction and Interpretation of 

Written Law. 

92. Presumption that Law is Unwritten. 

93. Presumption that the Law Remains Unchanged. 

94. Who are Qualified to Testify as Experts in Foreign Law. 

95. Who are Qualified to Testify as Experts in Foreign Law— The 

Rule in England. 

96. Where Knowledge of the Foreign Law must have been Acquired. 

97. Right of Expert to Cite Text Books, Decisions, Codes, etc. 

98. How these Citations are to be Regarded. 

99.* Whether the Question of Foreign Law is for the Court or Jury. 

100. Testimony as to Usage and Practice of Courts of Another State. 

101. Testimony as to Powers and Obligations of an Attorney in his 

Relations to his Clients. 

102. The Value of Legal Services. 

^ 84. The Law as a Subject for the Testimony of 
Experts. — From the earliest times it seems to have 



196 exp'ert testimony. 

been the practice of the English judges to receive, 
in certain cases, the opinions of persons skilled in 
the law. As early as the time of Henry VI., in 
a case which involved a question relating to civil 
law, we find it laid down that the common-law 
judges heard a bachelor of the civil law *^argue and 
discourse upon the difference between compulsione 
prxcisa et causativa^ as men that were not above be- 
ing instructed and made wiser by him.''^ And in 
another case during the same reign, where ex com- 
mengement had been pleaded, and the party answered 
that he ought not to be disabled thereby as an ap- 
peal was pending, the common-law judges inquired 
of those who were well versed in the canon law, 
touching the question involved." 

$85. Of what Laws Courts take Judicial Notice, 
and Expert Testimony is not Received. — Since ex- 
perts will not, as a general rule, be examined con- 
cerning such laws, as the courts take judicial notice 
of,' it is important to distinguish between the laws 
which will be judicially noticed, and those which 
must be proved as facts, when advantage of them is 
desired. " 

I. We shall consider first, then, those laws of which 
courts take judicial notice, and concerning which, 
therefore, the testimony of experts will not be re- 
ceived, as not being necessary for the information 
of the court. Such laws are: 

1. The law of nations.* 

2. The law merchant.* 

17 Henry VL, 11. 

2 20 Henrj- VI., 25. 

s Jewell V. Center, 25 Ala. 498, 505; The Clement, 2 Curti?, 3(>3. 

* The SeotiH, 14 Wall. 171, 188. 

* Eddie v. Ea!^t India Co., 2 Burr. 2226; Jewell v. Center, 25 Ala. 40S; 



WHAT LAWS COURTS TAKE JUDICIAL NOTICE. 197 

3. The maritime law, so far at least as recognized 
by the law of nations/ 

4. The ecclesiastical law, for the purpose of de- 
termining how far it is a part of the common law.* 

5. The courts of a State which has been carved 
out of another State, take judicial notice of the stat- 
utes of the latter State passed prior to the separa- 
tion.' 

6. All courts take judicial notice of their do- 
mestic law.* 

7. The courts of a State will take notice of the 
common law of England without proof, not because 
it is the common law of a foreign country, but be- 
cause that common law is a part of our domestic 
laAv.* 

8. The State courts take judicial notice of the 
Federal Constitution, and of its amendments,* as 
well as of Federal statutes.^ 

Bradford v. Cooper, 1 La. Ann. 325; Goldsmith v. Sawyer, 46 Cal. 209. 
The case last cited holds that where a board of brokers have rules, which 
are not rules or usances of trade and commerce that would be recoj^nized 
without their adoption by the board, these will not be judicially noticed, 
but must be shown by experts therein. 

^ Chandler v. Grieves, 2 ^. Bl. 606, n; Maddox v. Fisher, 14 Moore, 
P. C. 103 ; Zugastl v. Lamer, 12 Moore, P. C. 331 ; The Scotia, 14 Wall. 
171, 188; Taylor on Evidence, § 5; Wharton on Evidence, § 298. 

« Sims V. Maryatt, 17 Q. B. (79 E. C. L.) 292; 1 Roll. Abr.526; 6 Vin. 
Abr. 496. 

8 Delano v. Jopllng, 1 Lltt. (Ky.) 417; Stokes v. Macker, 62 Barb. (N. 
Y.) 146; Doe v. Eslava, 11 Ala. 1028; Chouteau v. Pierre, 9 Mo. 3; Ott 
V. Soulard, 9 Mo. 581; United States v. Turner, 11 How. 663, 668; City 
of Brownsville v. Cavazos, 2 Woods, 293. 

estate V. Jarrett, 17 Md. 309; State v. O'Conner, 13 La. Ann. 486; 
Plerson v. Balrd, 2 Greene (Iowa), 235; Berliner v. Waterloo, 14 W^is. 
378; Springfield v. Worcester, 2 Cush. (Mass.) 52; Division of Howard 
Connty, 15 Kan. 194; Dolph v. Barney, 5 Greg. 191. 

« Owen V. Boyle, 15 Me. 147. 151. 

« Graves v. Keaton, 3 Coldw. (43 Tenn.) 8. 

^ Kessel v. Albertis, 56 Barb. (X. Y.) 362; Papin v. Ryan, 32 Mo. 21; 
Morris v. Davidson, 49 Ga. 361; Rice's Succession, 21 La. Ann. 614, 616; 



198 EXPERT TESTIMONY. 

9. The Federal courts take judicial notice of the 
laws of the several States composing the national 
government/ 

$ 86. Of what Laws Courts do not take Judicial 
Notice, and Expert Testimony may be Received.^-II. 
In passing, in the second place, to the consideration 
of those laws which will not be judicially noticed, 
and as to which experts may, therefore, testify, we 
find: 

1. That courts do not take judicial notice of the 
laws of foreign countries.' As said by Lord Lang- 
dale: '*With foreign laws an English judge 
cannot be familiar ; there are many of which he 
must be totally ignorant ; there is, in every case of 
foreign law, an absence of all the accurate knowledge 
and ready associations which assist him in the con- 
sideration of that which is the English law.'" So 
in this country Mr. Chief Justice Marshall re- 
marked : *^The laws of a foreign nation designed 
only for the direction of its own affairs are not to 
be noticed by the courts of other countries, unless 
proved as facts."* 

Bayly v. Chubb, 16 Grattan (Va.), 284; Mima v. Swartz, 37 Tex. 13; 
Jones V. Laney, 2 Tex. 342; Semple y. Hager, 27 CaL 163; United States 
V De Coursey, 1 Pinney (Wis.), 508; Montgomery v. Deeley, 3 Wis. 709, 
712. 

iJuQCtion Railroad Co. V. Bank of Ashland, 12 Wall. 226, 229; Ben- 
nett y. Bennett, Deady, 299,311; Merrill y. Dawson, Hempstead, 563 ; 
Smith y. Tallapoosa Co., 2 Woods, 574, 576; United States y. Turner, 11 
How. 663, 668; O wings y. Hull, 9 Pet. 607. 

« Freemoult y . Dedire, 1 P. Wms. 430 ; Feaubert y. Turst, Pre. Ch. 207 ; 
Mostyn y. Farrlgas, Cowp. 174; Male y. Roberts, 3 Esp. 163; Smith y. 
Grould, 4 Moore, P. C. 21; Strother y. Lucas, 6 Pet. 763; Armstrong y. 
Lear, 8 Pet. 52; United States y. Wiggins, 14 Pet. 334; Damess y. 
Hale, 1 otto, 13; Bowdleht y. Soltyk, 99 Mhss. 138; Owen y. Boyle, 16 
Me. 147; Hosford y. Nichols, 1 Pai^^e (N. Y.), 220; McCraney y. Al- 
den, 46 Barb. (N. Y.) 274; Monroe y. Douglas-, 6 N. Y. 447, 452. 

« Nelson y. Brldgport, 8 Beavan, 527. 

* Talbot y. Seeman, 1 Cranch, 38. 



LAWS COURTS DO NOT TAKE NOTICE OF. 199 

2. That the courts of one State will not take 
judicial notice of the laws of any other State. This 
is upon the theory that the separate States which 
together constitute the nation are, as respects their 
political relations to each other, essentially * ^foreign' ' 
countries, whose laws must be proved as facts. ^ At 
an early day it was held in Vermont, that judicial 
notice would be taken of the laws of sister States.* 
But that doctrine was subsequently overruled.' In 
an early case in New Jersey, a similar doctrine was 
intimated,* but the dicta in that case have also been 
overruled in later cases in the same court.* A sim- 
ilar position was taken at an early day in Tennessee^ 



1 Brake v. Glover, 30 Ala. 382; Mobile Railroad Co. v. Whitney, 39 
Ala. 468; Forsyth v. Freer, 62 Ala. 443; Newton y. Cocke, 10 Ark. 169; 
Hempstead v. Reed, 6 Conn. 480; Brackett v. Norton, 4 Conn. 517; Dyer 
V. Smith, 12 Conn. 384; Bailey v. McDowell, 2 Harring. (Del.) 34; 
Stanford v. Pruet, 27 Ga. 243; Mason v. Wash, Breese (ni.),39; Irving 
y. McLean, 4 Blackf. (Ind.) 52; Dayis y. Rogers. 14 Ind. 424; Johnson 
y. Chambers, 12 Ind. 112; Carey y. Cincinnati, etc. R. R. Co., 5 Iowa» 
357; Taylor y. Runyan, 9 Iowa, 522; Shed y. Augustine, 14 Kan. 282; 
Beauchamp y. Mudd, Hardin (Ky.), 163; Stephenson y. Bannister, 3 
Bibb. (Ky.) 369; Dorsey y. Dorsey, 5 J. J. Marsh. (Ky.) 280; Tyler y. 
Trabue, 8B. Mon. (Ky.) 606; Sy me y. Stewart, 17 La. Ann. 73 ; Ander- 
son y. Folger, 11 La. Ann. 269; Legg y. Legg, 8 Mass. 99; Knapp y. 
Abell, 10 Allen (Mass.), 485; Brimhall y. Van Campen, 8 Minn. 13; 
Hoyt y. McNeil, 13 Minn. 390; Hemphill y. Bank of Alabama, 6 Sm. & 
M. (Miss.) 44; Babcock y. Babcock, 46 Mo. 243; Morrissey y. Wiggins 
Ferry Co., 47 Mo. 521 ; Ball y. Consolidated Franklin, etc. Co., 32 N. J. 
Law, 102, 101; Uhler y. Semple, 5 C. E. Green (N. J.), 288; Campion 
y. KUle, 1 McCarter (N. J.), 229; Hosford v. Nichols, 1 Paige (N. Y.), 
220; state y. Twitty, 2 Hawks (N. C), 248; State y. Surtly, 2 Hawks 
(N. C), 441; Eyans y. Reynolds, 32 Ohio St. 163; Ripple y. Ripple, 1 
Rawle (Penn.), 386; Whitesides y. Poole, 9 Rich. (S. C.) 68; Jones y. 
Laney, 2 Tex. 342; Anderson y. Anderson, 23 Tex. 639; Rape y. Heaton, 
9 Wis. 328; Territt y. Woodruff, 19 Vt. 183; Woodrow y. O'Conner, 28 
Vt. 776; Walsh y. Dart, 12 Wis. 636. 

« Middlebury Coll. v. Cheney, 1 Vt. 348. 

« Territt y. Woodruff, 19 Vt. 182; Woodrow y. O'Conner, 28 Vt. 776. 

* Curtis y. Martin, 2 N. J. Law, 290. 

» Van Buskirk y. Mulock, 18 N. J. Law, 184. 



200 EXPERT TESTIMONY. 

and has been ever since maintained/ And now, 
under the code of that State, the Supreme Court 
takes judicial notice of all foreign laws and statutes.* 
In a recent case in Rhode Island, the court took 
judicial notice of a law of the State of New York.' 
An exception should perhaps be made to the general 
rule, in so far that where a State recognizes acts 
done in pursuance of the laws of another State, the 
courts of the first State should take judicial cogni- 
zance of the said laws, so far as may be necessary to 
judge of the acts alleged to be done under them. 
And it has been so held.* In a case in Penn- 
sylvania, it was held that a State court, when its 
judgment would be liable to review by the Supreme 
Court of the United States, in a case arising under 
the law of a sister State, would take judicial notice 
of such law.* It has been held in Kansas that the 
constitutions of sister States will be judicially no- 
ticed. • Wherg it is desired to introduce evidence of 
the laws of other States, it is, of course, necessary 
that they should be pleaded.' 

§ 87. Proof of the Unwritten Law of a Foreigrn 
State. — Proof of the unwritten law of a foreign State 
may be made by the parol testimony of experts. 
This principle is everywhere recognized.* The ques- 



1 Foster v. Taylor, 2 Over. 191; Coffee v. Neely, 2 Heisk. 311; Hobbs 
V. Railroad Co., 9 Heisk. 873. 
=* See Hobbs v. Memphis, etc. R. R. Co., 56 Tenn. 874. 
3 Paine v. Schenectady Ins Co., 11 R. I. 411. 

* Carpenter v. Dexter, 8 Wall. 513. 

* State V. Hinchman, 27 Fa. St. 479. 

« Butcher v. Bank, 2 Kan. 70; Dodge v. Coffin, 15 Kan. 277. 

7 Root V. Merriwether, 8 Bush ^,Ky.),401; Peck v. Hibbard, 26 Vt. 
698. 

« Ennis v. Smith, 14 How. 400, 426; Baltimore, etc. R. R. Co. v. Glenn, 
28 Md. 287 ; Hebard v. MyerF, 5 Ind. JM; People v. Lambert, 5 Mich. 349; 



PROOF BY EXPERTS OF THE WRITTEN LAW. 201 

tion of the competency of the witness, the qualifica- 
tions he must possess in order to give such testi- 
mony will be considered in a subsequent part of this 
chapter. 

In many of the States it has been provided by 
statute that the unwritten law of other States may 
be proved not only by parol but also by the books 
of reports of cases adjudged in their courts.* And 
such reports have been received as evidence in Ala- 
bama, even in the absence of such statutes." 

§ 88. Proof by Experts of the Written Law of For- 
eigrn States — ^Allowed In Engrland. — The practice in 
England, formerly was to require the production of 
the written law, and to exclude all proof of it by the 
testimony of experts. When it was proposed to call 
a person conversant with the law of Russia as to the 
right to stop goods in transitu, Lord Ken yon re- 
fused to receive his testimony, and the distinction 
between written and unwritten law was taken. ^ 'Can 
the laws of a foreign country, '^ he asks, ''be proved 
by a person who may be casually picked up in the 
streets? Can a court of justice receive such evi- 
dence of such a matter? I shall expect it to be 
made out to me, not by such loose evidence, but by 
proof from the country whose laws you propose to 



Merritt v. Merritt, 20 111. 65 ; McRae v. Mattoon, 13 Pick. (Mass.) 53 ; Owen 
V. Boyle, 15 Me. 147, 151 ; Tyler v. Trabue, 8 B. Mon. (Ky.) 306. 

1 See McClain'8 Ann. Code of Iowa (1888), vol. 2, p. 1466, § 4970; Stat- 
utes of Minnesota (1878), p. 800, § 58; Starr v. Curtis's Ann. St. of ni., 
vol. 1, p. 1081, § 12; Sanborn & Berry man's Ann. St. of Wis. (1889), vol. 
2, p. 2141, § 4138; Howell's Ann. St. of Mich., vol. 2, p. 1889, § 7509; 
Ann. St of Kan., vol. 2, p. 1410, § 4465. 

< Inge V. Murphy, 10 Ala. (N. S.) 885, 896, citing the following cases: 
Dougherty v. Snyder, 15 S. & R. 85; Raynham v. Canton, 3 Pick. 293; 
'McRae v. Mattoon, 13 lb, 87; Lattimore v. Elgin, 4 De^s. 26. 



202 EXPERT .TESTIMONY. 

give in evidence, properly authenticated." * Lord 
Ellenborough also refused to receive parol evi- 
dence as to the law of Surinam, and declared that 
the law being in writing, an authenticated copy of 
it ought to be produced.* Chief Justice Gibbs, in a 
subsequent case, took the same distinction between 
the written and unwritten law, declaring that a copy 
of the former must be produced.' And Sir George 
Hay had, m 1776, refused to accept proof of foreign 
laws '^by the opinions of lawyers, which is the most 
uncertain way in the world," and required certifi- 
cates of the laws to be laid before him.* But this 
doctrine is no longer observed in that country, and 
the rule is now to regard the law as being something 
distinct from statutory or common law taken by 
themselves merely. It is considered as a resultant 
of the lex scripta and lex non scripta, and as such it 
is to be proved as any other fact of science, by wit- 
nesses duly qualified by learning and experience. 
As early as 1811 the opinions of Scotch advocates 
were received to prove the law of Scotland, although 
they referred to printed authorities as forming the 
basis of their opinions.* It was not, however, until 
the year 1845 that the principle can be said to have 
become settled, of admitting expert testimony as to 
law considered as a complex resultant of the written 
law, and its interpretation and construction. In 
that year a French advocate was permitted to tes- 
tify that the feudal law was abolished in Alsace, de 

1 Boehtllnck v. Schneider, 3 Esp. 58. This case criticised byLordDen- 
nian, C. J., in Baron De Bode'8 Case, 8 Ad. & Ellis (N. S.) 208. 

* Clegg V. Levy, 3 Camp. 166. 

3 Millar v. Heinricls, 4 Camp. 155. 

* Harford v. Morris, 2 Hagg. 430. 

* Dairy mple v. Dalrymple, 2 Hagg. 54. 



PROOF BY EXPERTS OF THE WRITTEN LAW. 203 

facto J in 1789, by the revolution, and dejure, by the 
treaty of Luneville; and that a formal decree existed 
abrogating the feudal law/ Lord Chief Justice 
Dbnman, in sustaining the admission of the testi- 
mony in the above case, said: * 'There is another gen- 
eral rule: that the opinions of persons of science must 
be received as to the facts of their science. That rule 
applies to the evidence of legal men; and I think it 
is not confined to unwritten law, but extends also to 
the written laws which such men are bound to 
know. Properly speaking, the nature of such evi- 
dence is not to set forth the contents of the written 
law, but its effect and the state of the law resulting 
from it. The mere contents, indeed, might often 
mislead persons not familiar with the particular sys- 
tem of law. The witness is called upon to state 
what law does result from the evidence." Cole- 
ridge, J., in the same case, alludes to the difficulty 
of understanding the written laws of foreign 
countries possessing a different jurisprudence. And 
in the opinion of Williams, J., there is a suggestion 
as to the inability to obtain copies from the public 
authorities of foreign countries. The principle' thus 
laid down was followed in Earl Nelson v. Lord 
Bridporty* where the court declares that although 
the written law is produced, and due proof made 
that it has not been repealed, varied, or fallen into 
disuse, and that the words have been accurately 
translated, ''still the words require due construc- 
tion, and the construction depends on-^the meaning 
of words to be considered with reference to other 
words not contained in the mere text of the law, 

1 Baron De Bode's Case, 8 Ad. & Ellis (N. S.) 208. 

2 8 Bcav. 527. 



204 EXPERT TESTIMONY. 

and also with reference to the subject-matter, which 
is not insulated from all others. The construction 
may have been, probably has been, the subject of 
judicial decision; instead of one decision, there may 
have been a long succession of decisions, varying 
more or less from each other, and ultimately ending 
in that which alone ought to be applied in the par- 
ticular case." It is evident that as to such con- 
struction the evidence of experts is required for the 
instruction of the court. And Lord Brougham de- 
clared in the House of Lords, in the celebrated 
Sussex Peerage Case:^ ^^The witness may refer to 
the sources of his knowledge; but it is perfectly 
clear that the proper mode of proving a foreign law 
is not by showing to the House the book of the law; 
for the House has not organs to know and to deal 
with the text of that law, and therefore requires the 
assistance of a lawyer who knows how to interpret 
it. If the Code Napoleon was before a French court, 
that court would know how to deal with and con- 
strue its provisions, but in England we have no such 
knowledge, and the English judges must, therefore, 
have the assistance of foreign lawyers. '* So in 
another case the court declares that the proper 
course to be pursued, in ascertaining the laws of a 
foreign country, is to call a witness expert in such 
laws, and *^ask Him, on his responsibility, what the 
law is, and not to read any fragment of a code, 
which would only mislead."' A person skilled in 
the laws o^ Bohemia was therefore permitted, 
against objection, to testify as to the written laws 
of that countrv. 



1 11 01. & F. 85, 115. 

« Cocks V. Purday, 2 C. & K. 269. 



MANNER OF PROOF AS TO WRITTEN LAWS. 205 

§ 89. Manner of Proof in the United States of the 
Written Law of Foreign States. — In this country a 
distinction is taken between the written and the 
unwritten law, and while the latter may be proven 
by the testimony of experts, the former can, in gen- 
eral, only be shown by the production of the writ- 
ten law itself, duly authenticated.* In an early 
case, Mr. Chief Justice Marshall said: ^*That no 
testimony shall be received that presupposes better 
testimony'' attainable by the party who offers it, ap- 
plies to foreign law, as it does to all other facts." ' 
Upon this principle, the statute itself must be re- 
garded as better evidence of what it contains, than 
is the testimony of any individual who, though he 
may know the general purport of the law, may not 
carry in his mind so minute and exact a knowledge 
thereof as is often necessary for its proper applica- 
tion. 

In a case in the Supreme Court of Michigan in con- 
sidering the English doctrine that written law may 
be proven by the parol testimony of a lawyer, that 
court has this to say of it: ''In this country, at least, 

1 Zimmerman V. Hesler, 32 Md. 274; Kermott v. Ayer, 11 Mich. 181; 
Woodbridge v. Austin, 2 Tyler (Vt.), 364; Danforth v. Reynolds, 1 Vt. 
265; Territtv. Woodruff, 19 Vt. 184; McNeill v. Arnold, 17 Ark. 154, 
1^7, explaining Barkman v. Hopkins, 11 Ark. 168; Bowles v. Eddy, 33 
Ark. 645; Emery v. Berry, 8 Foster (N. H.), 473 ; Comparet v. Jernegan, 
5 Blackf. (Ind.) 375; Line v. Mack, 14 Ind. 330; Hoes v. Van Alstyne, 
20 m. 202; McDeed v. McDeed, 67 HI. 545; Lee y. Matthews, 10 Ala. 
682; Innerarity V. Mims, 1 Ala. 660; Spaulding V. Vincent, 24 Vt. 50U 
505; Gardner v. Lewis, 7 Gill (Md.), 379; Robinson v. Clifford, 2 Wash. 
C. C. 2; United States v. Otega, 4 Wash. C. C. 533; Ennis v. Smith, 14 
How. (U. S.) 400, 426; Toulandon v. Lachenmeyer, 1 Sweeny (N. Y.), 
45; IsabeUa y. Pecot, 2 La. Ann. 387; Raynham y. Canton, 3 Pick 
(Mass.), 293; Bryant y. Kelton, 1 Tex. 434; Willings v. Consequa, 1 
Pet. C. C. 225; Kenny y. Clarkson, IJohnson (N. Y.), 385; Lincoln. 
V. Battelle, 6 Wend. (N. Y.) 475. 

» Church y. Hubbart, 2 Cranch, 187. 



206 EXPERT TESTIMONY. 

such a practice would be very unsafe; and there are 
reasons growing out of our peculiar federated sys- 
tem which would render it highly inexpedient to 
adopt any such course in regard to the laws of our 
sister States. Within a century, most of, them were 
under the dominion of the same general common- 
law system, and their statutes are to be interpreted 
by similar rules. All of them are represented in 
Congress, and the laws of Congress are supposed to 
be susceptible of interpretation by any tribunal in 
the land. In our territorial condition we were 
bound by laws selected from all the old States, and 
our courts were expected to pass upon them. We 
have ready access to the reported decisions of courts, 
which are the only authorized exponents of their 
local statutes. Cases must certainly be rare in 
which the courts of one State cannot comprehend 
the statutes of another. The chief difl&culty would 
arise between States where one is possessed of a 
common law and the other of a civil-law system. 
But in all cases it is safer to have the written law as 
a guide, whether it needs expounding or not.'" 

The law being written, we have seen that the rule 
in this country is that there should be presented to 
the courts a copy of it, if it is possible to obtain a 
copy. But the question then arises how is proof to 
be made that it is a copy. The matter is quite gen- 

1 People y. Lambert, 6 Mich. 349, 362. But Bee Barrows v. Downs, 9 
R. I. 453, where the court in the course of its opinion says: ^^There are 
many cases where the evidence of a professional person, or one skilled 
virtute officii^ may be much more satisfactory evidence of what the law 
is, than the mere exemplification of the exact words of a foreign statute, 
which the court may not have the necessary knowledge ta construe. 
And it seems to us, that the requiring an exemplified copy is pressing 
the rule of requiring the best evidence to an extent that would often de- 
feat the ends of justice.^' 



MANNER OF PROOF AS TO WRITTEN LAWS. 207 

erally regulated by statutory provision. The Re- 
vised Statutes of the United States provide that 
"The acts of the legislature of any State or territory, 
or of any country subject to the jurisdiction of the 
United States, shall be authenticated by having the 
seals of such State, territory, or country aflfixed 
thereto."' 

The States may admit, as evidence, the written 
law of sister States, without the authentication re- 
quired by the Act of Congress above referred to, but 
the statutes of one State thus authenticated must 
be admitted in the courts of every other State of the 
Union.' 

In some States it is provided that the statute 
books of another State, purporting to be published by 
the authority of such State, may be received in evi- 
dence without further proof:' in others, the pro- 
vision is that statute books of a sister State, pur- 
porting or proved to be published by authority, or 
proved to be commonly admitted in the couHs of such 
State, may be received in evidence :* in some 
others, that statute books of other States, pur- 
porting to be published by authority or commonly 
admitted in the courts of such State, may be re- 

1 U. S. Rev. Stat., ed. of 1878, § 905. 

> Taylor v. Bank of niinois, 7 B. Mon. (Ky.) 576. 

s Alabama Code of 1876, § 3045; Arkansas Dig. of Statutes (1858), 
ch. 67, § 2; Indiana, Bev. Stat. (1881), § 477; Blinois, Starr & Cur- 
tis's Ann. Stat. (1885), Vol. 1, p. 1080, § 10; Maine, Bev. Stat. (1871), 
p. 653, § 97; Maryland, Rev. Code (1878), p. 759, § 46; Rhode Island, 
Public Statutes (1882), p. 589, § 144; Tex. Bev. Stat. (1879), p. 329, § 
2250. 

* Florida, Bush's Dig. (1872), p. 547, § 357; Iowa, McClain's Ann. 
Code (1888), Vol, 2, § 4969; Kansas, Gen. Stat. (1889), Vol. 2, § 4465; 
Massachusetts, Gen. Stat. (1882), p. 943, § 71 ; New York, Code of 1871, 
§ 426, and new Code, § 942; Korth Carolina, Battle's Bevisal (1873), p. 
233; Ohio, Rev. Stat. (1889), p. 1323, § 5244; Tennessee, 2 Statutes 
(1871;, i 3800. 



208 EXPERT TESTIMONY. 

ceived.* Still another prevision is that statute 
books of other States, printed by authority or proved 
to be commonly admitted in the courts of such State, 
may be read in evidence :* and in a few States 
the provision is that statute books, printed by au- 
thority, may be received without further proof.* In 
Louisiana the statutory provision is that the pub- 
lished digests and statutes of other States shall be 
received in evidence/ While in New Jersey the 
provision is so different from those in the statutes of 
other States that we give it entire/ 

It is evident that in those cases in which provis- 
ion is made for receiving the statute books of sister 
States, which are '^commonly admitted," or ''proved 
to be commonly admitted,'' in the courts of such 
States, the evidence of persons practicing in the 

1 Delaware, Rev. Code (1874), p. 652, § 6; Michigan, 2 Howell's 
Ann. St. § 7508; Minnesota, Statutes (1878), p. 800,§ 57. 

» Wisconsin, Sanborn & Berryman's Ann. St. (1889), Vol. 2, p. 2141, § 
4136. 

3 Colorado, Gen. Laws (1867), p. 405, § 1078; Connedticut, Gen. Stat. 
(Rev. of 1875), p. 438, § 19; Georgia, Code of 1873, p. 671, § 3824; Ken- 
tucky, Gen. Stat. (1873), p. 413, § 21. And see 1 Rev. Stat, of Missouri 
(1879), p. 370, § 2272. 

* Revised Statutes of 1870, p. 283, § 1440. 

^ *'The printed statute books and pamphlet session laws of any of the 
United States, printed and published by the direction or authority of 
such State, shall be received as evidence of the public laws of such 
state, in any court of this State ; and the court may determine whether 
any book or pamphlet, offered as such, was so printed or published, 
either from inspection, or the knowledge of the judge or judges, or from 
testimony; and no error shall be assigned for the rejection of any book 
or pamphlet, offered as such, unless it be proved on error that such book 
or pamphlet is received as a statute book or pamphlet containing the 
session laws of s^id State, in the courts of such State w^hose statute book 
or pamphlet containing the session laws it purports to be, nor shall 
any error assigned for the admission of such book or pamphlet be sus- 
tained, unless it be shown in support thereof that the statute offered in 
evidence, or some material part thereof, was not in force in such State at 
the time of the transaction or matter to which it was offered as pertinent 
or material." Revision (1709-1877), p. 381, § 22. 



MANNER OF PROOF AS TO WRITTEN LAW. 



209 



courts of those States would be received to authenti- 
cate the law, by showing that the book containing it 
is received in evidence in the courts of the State 
whose law it purports to be. 

It has been held in Kentucky that these statutory 
provisions are to be regarded as cumulative, and 
that they do not repeal the common-law mode of 
proof.' But the Supreme Court of Michigan de- 
clares that foreign statutes should, when possible, 
be proved, as provided for in the State laws and the 
Acts of Congress, rather than by the testimony of a 
lawyer who practiced within the jurisdiction where 
they are in force.' Consequently in that State the 
written law cannot be proven by parol without some 
showing why secondary evidence is necessary," and 
it is said that nothing but the impossibility of 
obtaining a copy — a case, the court remarks, not to 
be presumed among civilized nations — can excuse 
the non-production of such a copy.* 

In a case decided in New York, the court re- 
fused to receive a book in the French language, pur- 
porting to contain the commercial code of France, 
and which was produced by the Chancellor of the 
French Consulate at New York, who testified that it 
was an exact copy of the laws furnished by the 
French government to its consul in New York.* 

In the absence of all statutory provision regulat- 
ing the mode of proof, it has been held that a copy 
of the foreign statute should be produced, which 

1 Bieseothrall v. Williams, 1 Duval (Ky.), 330. And see Chamberlain 
V. Mailland, 5 B. Mon. (Ky.) 448. 
> Kopke y. People, 43 Mich. 41. 
« Kermott v. Ayer, 11 Mich. 181, 184. 
< People V. Lambert, 5 Mich. 349, 360. 
* Chanoine v. Fowler, 3 Wend. 173. 

(14) 



210 EXPERT TESTIMONY. 

the witness can swear was recognized in the foreign 
country as authoritative/ So in an early case in 
Pennsylvania, the court received a printed copy of 
Irish statutes to show the law of Ireland, an Irish 
barrister having testified that he received the same 
from the King's printer, and that it was good ev- 
idence in that country.* And in England a book 
was received as evidence of the written law of • 
France, which purported to be printed at the Royal 
Printing Office, and which the French Vice Coijsul 
produced, testifying that it contained the French 
code of laws upon which he acted, and that the of- 
fice where it purported to be printed by authority 
of the government was the government printing 
office.' In New Jersey, prior to the adoption by 
that State of any statutory provision regulating the 
matter, the courts held that parol proof by an at- 
tornev, that the book was read and received in the 
courts of the other State as an authentic copy of 
their statutes, was not sufficient, but that it should 
be authenticated according to the Act of Congress, 
or by sworn copies from the original statutes.* 

§ 90. Provinsr the Written Law, in the Discretion 
of the Court, by the Testimony of Experts.-^The gen- 
eral rule of law in this country, therefore, is : That 
the unwritten law of a foreign State must be proved 
by the testimony of experts, that is, by those who 
are acquainted with the law, but that the written 
law of such a State is to be proven by a copj'- properly 



1 Spaulding v. Vincent, 24 Vt. 501, 505. 

« Jones V. Maffett, 5 S. & R. 523. 

«Lacon v. Higgins, 3 Starkie (N. P.), 178. See also, Middleton v. 
Janverin. 2 Hag. Cons. R. 437. 

^ Van Buskirk v. Muloek, 18 N. J. Law, 184, (»verriiling Hale v. Robs, 
3 N. J. Law, 373. See Condit v. Black well, 19 N. J. Eq. 193, 196. 



DISCRETION OP COURT AS TO WRITTEN LAW. 211 

authenticated/ It is clear, however, that such a 
rule as this may be varied by statute, and as a mat- 
ter of fact it has been so varied in some of the States. 
Thus, in Delaware, Massachusetts, Minnesota and 
Wisconsin, the statutes provide as follows: **The 
existence and the, tenor or effect of all foreign laws 
may be proved as facts by parol evidence; but if it 
shall appear that the law in question is contained 
in a written statute or code, the court may, in their 
discretion, reject any evidence of such law that is not 
accompanied by a copy thereof. ' '' The phraseology 
of the Kentucky and Maine statutes differ some- 
what from the above provision. The Kentucky 
statute reads as follows: *'The existence and the 
tenor or effect of all foreign laws beyond the limits 
of the United States may be proved by the parol 
evidence of persons learned in those laws. But if 
it appear that the law in question is contained in a 
written statute, the court may reject such parol ev- 
idence, unless it be accompanied by a copy of the 
statute.'" While in Maine it runs as follows: *Tor- 
eign laws may be proved by parol evidence, but 
when such law appears to be existing in a written 
statute or code, it may be rejected unless accom- 
panied by a copy thereof. The unwitten law of any 
other State or territory of the United States may 
be proved by parol evidence, and by books of re- 
ports of cases adjudged in their courts."* 



1 See the preceding sectioo, and also Pierce v. lodsetb, 106 U. S. 546. 
531. 

'Delaware Rev. Code (1874), p. 652, § 8; Massachusetts Gen. Stat. 
(1882), p. 993, § 73; Statutes of Minnesota (1878), p. 800, § 59; Wiscon- 
sin, Sanborn & Berry man's Ann. Stat., p. 2141, § 4130. 

« Gen. Stat. (1873), p. 413, § 18. 

* Rev. Stat. (1871), p. 653, § 98. 



212 EXPERT TESTIMONY. 

§ 91. Expert Testimony as to the Construction 
and Interpretation of Written Law. — The rule of law 
which requires the written law to be proven by an 
authenticated copy does not make incompetent the 
testimony of an expert as to the construction and 
interpretation placed on such law in the foreign 
State. In admitting such testimony in Alabama, 
as to the law of Louisiana, the court said: 'The 
exposition, interpretation and adjudication may 
never have been evidenced by books or writings; 
but may, nevertheless, have become well under- 
stood, as the rule of law deduced by the court from 
the written words of the code upon a particular state 
of facts. Upon such a question, the testimony or 
opinions of competent witnesses instructed in the 
law of that State may be resorted to.'*' In another 
case decided in Illinois, it is held that while the 
statute of a foreign State cannot be proved by parol, 
yet the construction given to such statute by the 
tribunals where they are in force, may be given in 
evidence by witnesses learned in such laws.' So in 
a case in Maryland, in which the Revised Statutes 
of New York had been received in evidence, a law- 
yer residing in the City of New York was allowed to 
give testimony as to the construction placed on the 
statute in question in New York."* 

§ 92. Presumption that Law is Unwritten .-^It 
has been held that, in the absence of evidence to 
the contrary, it will be presumed that the foreign 
law is unwritten, and that parol testimony of ex- 
perts in such law will be received upon this assump- 



1 Walker v. Forbes, 31 Ala. 9. 

« Hoes V. Van Alstyne, 20 Ul. 202. 

s Consolidated Real Estate, etc. Co. v. Cashow, 41 Md. 59, 79. 



PRESUMPTION THAT LAW IS UNCHANGED. 213 

tioii. **These laws are generally difficult of proof. 
It would be a very expensive matter to prove them 
by copies authenticated. It, therefore, shall reason- 
ably fall on the parties objecting to the parol proof, 
to show that the law was a written edict of the 
cou-ntry."' 

§ 93. Presumption that the Law Remains Un- 
changed. — When a witness testifies as to the foreign 
law, the question has been raised whether it is suffi- 
cient for him to show the law as it existed at a period 
prior to the time of which the trial court is inquir- 
ing, or whether it is necessary that his testimony 
should be addressed directly to the very time of the 
transaction in question. It has been held that, 
where the statute of a sister State is shown to have 
existed at a time prior to that of the transaction in 
question, it will be presumed, in absence of proof to 
the contrary, that^ it continued unchanged to the 
period in controversy.' But in a case in New York, 
when a printed copy of the French Code was pre- 
sented, a witness, who had been licensed to practice 
in France in 1837, and ceased to practice in 1862, 
testified that at the time he practiced in France the 
book was commonly received by the judicial tribu- 
nals of that country as evidence of the existing law. 
The period for the existing law of which thQ trial 
court was seeking was in 1871, and the question 
was raised whether the law having been shown as it 
existed in 1862 could be presumed to have continued 
the same until the year 1871. This was not deter- 

1 Dougherty v. Snyder, 15 S. & R. (Penn.) 84, 87. And see Livingston 
V. Maryland Ins. Co., 6 Cranch, 274, 280. 
« Peck V. mbbard, 26 Vt. 698; Raynham v. Canton, 3 Pick. (Mass.) 29. 



214 EXPERT TESTIMONY. 

mined, but the court evidently had a serious doubt 
whether such presumption could be entertained/ 

$ 94. Who are Qualified to Testify as Experts in 
Foreisrn Law. — In order to prove the law of a foreign 
country, it is necessary that the witnesses produced 
to testify in respect to it should be more than ordi- 
narily capable of speaking upon the subject. 

1. It is evident that one who has practiced law 
within the State, whose law is to be proven, is com- 
petent to testify in regard to the. same.* 

In a case in Maryland, the witness stated that he 
resided in New York City, and was by occupation a 
lawyer. The Court of Appeals, in passing on an 
objection to his competency, say: **This we regard 
as sufl&cient to enable him to testify as he has done. 
The objection, that he is not shown to be a lawyer 
practicing in New York, or informed of the law of 
that State, but merely that he is a lawyer and resides 
in New York, and for aught that .appears may have 
practiced in another State only, is too refined to be 
tenable. The facts that he resides in New York, 
and is a lawyer by profession, authorizes, in the 
absence of opposing proof, the inference that he 
practices his profession in the State or city of his 
residence, and this makes him competent to testify 
respecting the matter about which he was exam- 
ined.'" 

2. Persons who, because of some official position 
holden by them, are required to know the law of 
their domicile concerning the subject inquired about, 

1 Hynes v. McDermott, 82 N. Y. 41. 

3 Consolidated Beal Estate Co. v. Cashow, 41 Md. 59 ; Layton y. Chalon, 
4La. Ann. 318; Mowry y. Chase, 100 Mass. 79; Wilson y. Carson, 12 
Md. 64; Tyler v. Trabiie, 8 B. Mon. 306; Wilson v. Smith, 13 Tenn. 
399; McNeil v. Arnold, 17 Ark. 154, 167; Brewer y. Luth, 28 Kan. 581 

s Consolidated Keal Estkte, etc. Co. y. Cashow, 41 Md. 59, 80. 



WHO ARE QUALIFIED TO TESTIFY. 215 

are competent to testify as to what that law is. It 
has, accordingly, been held in England, and the 
same ruling would, no doubt, be made in this coun- 
try, that a person in the diplomatic service of Persia, 
and who is required to be thoroughly versed in the 
law of that country, might testify as to the law of 
Persia concerning the administration of estates.* 

3. It has even been held that pers(Jhs who, from 
their business relations, have become acquainted 
with the law of a foreign State, may be competent 
witnesses for the purpose of proving what such law 
is. Thus, a captain of a ship, trading with China, 
has been held competent to prove that the manu- 
facture of saltpetre was prohibited in China.' And 
in a New Hampshire case, a witness who had long 
been extensively engaged in mercantile business in 
Canada, and in such employment had become ac- 
quainted with the law in relation to notarial instru- 
ments, was held competent to testify that it was part 
of the sworn duty of every notary in that country 
not to suffer any original paper, executed before him, 
to be taken out of his custody.' So in another case 
it was declared that *'all persons who practice a 
business or profession which requires them to possess 
a certain knowledge of the matter in hand, are ex- 
perts so far as expertness is required."* The ques- 
tion which this case involved, related to the Belgian 
law on the subject of the presentment of promissory 
notes, and the point raised was whether a witness 
called as an expert to testify as to such law, must be 
a professional man; one who, by virtue of his ofl&ce, 

* De Dost Aly Khan, 6 Prob. Div. 6. 
2 Wilcooks V. Phillips, 1 Wall. Jr. 49. 
» Pickard V- Bailey, 26 N. H. 152, 171. 

* Vander Donckt v. Thellusson, 8 Man. G. & S. (65 E. C. L.) 812. 



216 EXPERT TESTIMONY. 

might be said to be peritus. It was held not, and 
one who had been a merchant and stock-broker at 
Brussels, was permitted to testify as an expert. **I 
think,'' said Mr. Justice Maule, ''that inasmuch as 
he had been carrying on a business which made it 
his interest to take cognizance of the foreign law, he 
does fall within the description of an expert." And 
in a case in the Supreme Court of Pennsylvania, it 
was held that the law of a foreign country on a given 
subject might be proven by any person, who, though 
not a lawyer, or not having filled any public office, 
was or had been in a position to render it probable 
that he would make himself acquainted with it. The 
court, therefore, held that a pastor of a church in a 
foreign country could be permitted to testify that 
the church records had been kept according to the 
laws of that country.' In the same way a Roman 
Catholic bishop, who had resided in Rome and 
studied church law and Roman law, has been allowed 
to testify concerning the matrimonial law of Rome.' 
And in accordance with this principle our courts 
have allowed a priest or minister from another State 
to testify as to the matrimonial law of such State.* 
4. In some cases the doctrine is even more broadly 
stated, and it is said that the testimony of any person 
who appears to be well informed on the point is ad- 
missible. Thus the New Hampshire court says: ' 'In 
proof of the laws of a foreign country, the testimony 
of any person, whether a professed lawyer or not, 
who appears to the court to be well informed on the 



^ American Life Ing. Co. v. Rosenagle, 77 Pa. St. 507. 
s Sugsez Peerage Case, 11 CI. & F. 134. 

8 Bird V. Commonwealth, 21 Gratt. (Va.) 800, 808. And see Phillips 
V. Gregg, 10 Watts (Penn.), 158, 169. 



WHO ARE QUALIFIED TO TESTIFY. 



217 



point, is competent.'" This statement is a mere 
dictum not required by any question before the 
court, as the witnesses whose testimony was the 
matter in dispute were lawyers. 

In a Pennsylvania case, it is said that the foreign 
law **may be proved by professional men, or others 
conversant with, and having the means of knowl- 
edge.''* In Texas, the practice has long prevailed 
of receiving the evidence of intelligent Mexicans, 
not lawyers, as to the laws of Spain and Mexico in 
litigation pertaining to lands, and such evidence is 
pronounced by the courts of that State to have been 
! Valuable in giving information as to the construc- 
tion given to the laws of Spain and Mexico by the 
ofl&cers who executed them.'** In an early case in 
New York, Mr. Justice Spencer declares that '^courts 
of law will receive evidence of the common law from 
intelligent persons of the country whose laws are to 
be proved.*'* The language of the New York case 
is a mere dictum, as all that was decided was that a 
foreign statute could not be proven by parol. 
Neither does it appear who would be regarded as an 
''intelligent" person within the meaning of the ex- 
pression used. And in Illinois it is said that it may 
be proven by the testimony of competent witnesses 
instructed in its laws.* But in this Illinois case the 
testimony was given by practitioners of the law of 
more than twenty years' standing, and the words 
used do not necessarily imply that persons who were 
not lawyers would be allowed to testify. 

1 Hall V. Costello, 48 N. H. 176, 179. 

* Jones ▼. Maffett, 5 Serg. & R. (PeDn.; 523, 632. 
« State V. Cuellar, 47 Tex. 304. 

* Eenney v. Van Horne, 1 Johns. (N. Y.) 394. 

» Milwaukee & St. Paul R. R. Co. v. Smith, 74 Dl. 197. 



218 



EXPERT TESTIMONY. 



The principle which would allow any person, who 
claims to know the foreign law, to give testimony 
concerning it in a court of justice seems unjustifiably 
lax. There can be no necessity for receiving such 
testimony, and it ought not to be admitted. A wit- 
ness, to be competent to testify on a question of 
foreign law, should be an expert^ and it is as neces- 
sary that he should be such as it is that a witness 
should be an expert in order to give testimony on a 
question of medical science. We have seen in 
another part of this work' that a witness cannot tes- 
tify as an expert on a particular matter when that 
particular matter does not pertain to his special call- 
ing or profession, and his knowledge of the subject 
of inquiry has been derived from study alone. And 
so a witness who is not a member of the legal pro- 
fession, or a public oflBcer who is required to know 
the law, or some person like an ecclesiastic who 
knows the law pertaining to his department, or a 
person engaged in a certain business which requires 
him to possess a certain knowledge of the matter in 
hand, should not be allowed to give testimony on a 
question of foreign law. 

The dictum of the New Hampshire court, if fol- 
lowed, would often lead to disastrous results that 
would subject the administration of the law to de- 
served reproach. The English rule, as will be seen 
in the section which follows, is opposed to any such 
loose doctrine. In a case in Michigan, which in- 
volved the marriage laws of New Jersey, a person 
who had been a policeman and constable in the lat- 
ter State, and who did not swear to any general 
knowledge of the laws of that State, but said he had. 



1 Section 1!). 



WHO ABE QUALIFIED TO TESTIFY. 219 

on account of a difficulty with his own wife, looked 
into those laws, was allowed, in the court below, to 
testify what the written laws of New Jersey were in 
regard to marriage. The Supreme Court held the 
witness to be incompetent, saying: **In regard to 
the law of marriage, his means of knowing the law 
were those of any other citizen, and no more.' * The 
court calls attention to the English rule requiring 
the witness to be an expert, and thinks it would be 
a reproach to the law to regard persons with slight 
qualifications as experts to give testimony on such 
matters." 

^ 95. Who are Qualified to Testify as Experts in 
Foreign Law — The Rule in Engrland. — In England, 
a more rigid rule has, in some cases, been applied 
in determining the qualifications of persons to give 
expert testimony on the science of law. In one case 
the Master of the Rolls refused to act on the aflidavit 
of one describing himself as a '^Solicitor practicing 
in the Supreme Courts of Scotland, Edinburgh," 
and required the opinion of an advocate as to the 
Scotch law.* There is an English case in which it 
was held that one who was not. a lawyer, and who 
had no special qualifications, but who had resided 
in Scotland for twenty years, and who swore that he 
was acquainted with the law of marriage, was com- 
petent to state what the Scotch law of marriage was.' 
It did not appear that the witness had any peculiar 
means of information as to the law. But this case 
has been disapproved, and does not seem to be re- 

1 People V. Lambert, 6 Mich. 349. 

* In re Todd, 19 Beav. 582. The opinions of Scotch advocates were 
also received in Williams v. Williams, 3 Beav. 547, and in Hitchcock 
v. Olendinen, 12 Beav. 534. 

8 Regina v. Dent, 1,C. & K. (47 E. C. L.) 96. 



220 EXPERT TESTIMONY. 

garded as the law. In the Sussex Peerage Case, in 
the House of Lords, the Lord Chancellor, in speak- 
ing of the case, said: **I ought to say at once that 
it is the universal opinion both of the Judges and 
the Lords that the case is not law. ' '* But while that 
case was thus emphatically repudiated, it was at the 
same time held, as stated in the preceding section, 
that a Roman Catholic bishop, holding the office of 
coadjutor to a vicar-apostolic in England, was to 
be considered, by virtue of his office, as a person 
skilled in the matrimonial law of Rome, and, there- 
fore, competent as a witness to prove that law. The 
Lord Chancellor declared that the witness came 
within the description of a person peritusvirtute officii. 
The English courts, too, have held, as we have seen, 
that the Persian ambassador at Vienna might testify 
as an expert in the law of Persia; but this was after 
he had testified that in Persia there were no profes- 
sional lawyers; that the administration of the law 
was left entirely to ecclesiastics, and that all persons 
in the diplomatic service of that country were re- 
quired to be thoroughly versed in the law; and that 
he had, therefore, studied and become acquainted 
with it.' 

In 1861, the British Parliament passed a very wise 
and useful act, by which it was intended that all 
questions of foreign law should be referred to the 
courts of the foreign country to be there decided and 
certified back.* 

1 Sussex Peerage Case, 11 01. & F. 85. 

s The Goods of Dost Aly Khan, 6 Prob. Div. (L. R.) 6. 

8 "If, in any action depending in any court of a foreign country or 
State, with whose government Her Majesty shall have entered into a 
convention as above set forth (i. e., for the purpose of mutujilly ascer- 
taining the law), such court shall deem It expedient to ascertain the law 
applicable to the facts of the case as administered in any part of Her 



ACQUIRING KNOWLEDGE OF FOREIGN LAW. 221 

^ 96. Where Knowledsre of the Foreign Law Must 
Have Been Acquired. — ^It has been held in several 
cases, that where the knowledge of a witness pro- 
duced as an expert in foreign law has not been ac- 
quired in the foreign country, such person is not to 
be regarded as competent, and his testimony cannot 
be received. Thus, it has been held in England, 
that a witness was incompetent to testify, who stated 
that he was a jurisconsult, and adviser to the Prus- 
sian Consul in England, and had studied law in the 
University of Leipsic, and that from his studies there 
he was able to say that the Code Napoleon was the 
law of Cologne. The court declared that one who 
never had been in the foreign State, and whose 
knowledge of the law was not derived there, was in- 
competent to testify as an expert in the foreign law.* 
And where one described himself as ''a certified 
special pleader, and as familiar with Italian law,'' 
he was not allowed to testify that the office of curator 

Majesty ^8 dominions, and if the foreign court in wliich sucli action may 
depend, shall remit to the court in Her Majesty's dominions whose opin- 
ion is desired, a case setting iorth the facts and questions of law arising 
out of the same, on which they desire to have the opinion of a court 
within Her Majesty's dominions, it shall be competent to any of the 
parties to the action to present a petition to such last mentioned court, 
whose opinion is to be obtained, praying such court to hear parties or 
their counsel, and to pronounce their opinion thereon in terms of this 
act, or to pronounce their opinion without hearing parties or counsel ; 
and the court to which such petition shall be presented shall consider 
the same, and if they think fit, shall appoint an early day for hearing 
parties or their counsel on such case, and shall pronounce their opinion 
upon the questions of law, as administered by them, which are submitted 
to them by the foreign court; and in order to their pronouncing such 
opinion, they shall be entitled to take such further procedure thereupon 
as to them shall seem proper, and upon such opinion being pronounced, 
a copy thereof, certified by an officer of such court, shall be given to each 
of the parties to the action by whom the same shall be required." 24 & 
25 Vict., ch. 11. See Law Magazine and Review, London, May, 1882, 
and 8 Southern Law Review, 153. 
1 Bristow V. Sequeville, 5 Ezcheq. 272. 



222 EXPERT TESTIMONY. 

in Italy was as nearly as possible identical with that 
of an administrator in England, the ground for his 
exclusion being that there was nothing **to show 
that he had any knowledge of Italian law, but from 
the study of it in this country'' (England).* So an 
English barrister practicing in Canadian Appeals 
before the Privy Council, has been held incompetent 
in England to give evidence as an expert as to the 
validity, according to the law of Canada, of a mar- 
riage solemnized in that country.' In this coun- 
try, a witness who showed himself to be instructed 
in the laws, customs and usages of Spain, and who 
was a legal practitioner in the Island of Cuba, which 
is governed by Spanish law, was held competent to 
prove the law of Spain, although he never resided 
or practiced in the latter country.' And in another 
case a witness who had never been admitted to the 
French bar was held competent to testify as to the 
law of France, but he had studied the law as a pro- 
fession and been graduated from the University of 
Paris, and was at the time of giving his testimony 
employed by the French government as legal adviser 
of the legation at Washington.* 

^ 97. Bl^rht of expert to Cite Text Books, Decis- 
ions, Codes, etc.— When a lawyer or expert in foreign 
* law is allowed to testify as to the law. assuming it to 
be a resultant of the lex scripta and the lex non-scnptay 
he may confirm his recollection of the law, or assist 
his own knowledge by reference to text books, de- 
cisions, statutes, codes, or other legal documents.* 

1 The Goods of BonDelll, 1 Prob. Div. (L. R.) 69. 
« Cartwright v. Cartwright, 26 W. B. 684. 
8 Molina v. United States, 6 Ct. of CI. 269. 
< Dauphin v. U. S., 6 Ct. of CI. 221. 
« See Barrows v. Downs, 9 R. I. 446. 



HOW CITATIONS ARE TO BE REGARDED. 223 

And if he describes them as truly stating the law, 
they may be read, not as evidence per se, but as 
part and parcel of his testimony.^ 

^ 98. How these Citations are to be Begrarded.— 
It has been said in England that in the first instance, 
at least, the judge can only regard the citation of 
the laws and authorities contained in the opinions 
of the experts, as connected with the testimony, and 
that he cannot consider them as at all important, 
except with regard to the degree of weight given by 
the testimony. That if he reads them they may 
appear to him to accord with the testimony, or to 
diflfier from it. **If, in his view, they accord with it, 
nothing is gained. If, in his view, they differ from 
it, he, being ignorant of the foreign law, cannot 
weigh his opinion against the clear and uncontra^ 
dieted opinion of the witness whose opinion ought 
to be derived, not only from the citation in question, 
but from all the sources of his knowledge of the law 
of which he is speaking.''' And in the Duchess Di 
Siora^s Case in the House of Lords, Lord Chelmsford 
declares that it seems contrary to the nature of the 
proot required, that the judge should be at liberty 
to search for himself into the sources of knowledge 
from which the witnesses have drawn, and produce 
for himself the fact which is required to be proved 
as a part of the case.' But where the opin- 
ions of the experts are unsatisfactory and contra- 
dictory, the court is at liberty to examine for itself 
the laws and authorities cited by the witnesses as 
the basis or foundation for their opinions. Thus, in 

1 Sec Taylor on Ev. § 1423; Xelson v. Bridport, 8 Beav. 527, 638; 
Sussex Peerage Case, 11 CI. & Fin. 114, 117. 
* Nelson v. Bridport, 8 Beav. 627, 641. 
s 10 House of Lords' Cases, 640. 



224 EXPEET TESTIMONY. 

a case before the Privy Council when the judges said 
the evidence of the experts was not satisfactory, they 
laid down a rule correctly stated by the reporter in 
a marginal note as follows: '^Foreign law is a mat- 
ter of fact to be ascertained by the evidence of ex- 
perts skilled in such law; but where the evidence of 
the experts is unsatisfactory and conflicting, the ap- 
pellate court, not having an opportunity of person- 
ally examining the witnesses to ascertain the weight 
due to each of their opinions, will examine for itself 
the decisions of the foreign courts and the text writ- 
ers, in order to arrive at a satisfactory conclusion 
upon the question of foreign law."' In a case 
in 1889, before the Chancery Division of the 
English court the question was again raised, and 
CoLTON, L. J., disposed of it as follows: '*In our 
courts, foreign law is a matter of fact to be decided 
on evidence, and the proper evidence is that of ex- 
perts, that is to say, of advocates practicing in the 
courts of the country whose law our courts want to 
ascertain. It was urged on behalf of the respond- 
ent that all we can do is to look at the affidavits of 
the experts, and that if the law on any particular 
point is not laid down in them, then we have no 
evidence what the foreign law on that point is, and 
that then, if the appellant's case depends on the 
law on that particular point, she has not established 
it, and her appeal must fail. Noav, as I have said, 
the proper evidence of the law of any foreign country 
is evidence by lawj^ers of that country, but if in 
their evidence they refer to passages in the code of the 
country whose law we are endeavoring to ascertain, 
it would, as it appears to me, be niost unreasonable 

1 Brewer v. Freeman, 10 Moore, P. C. 306. 



.WHETHER QUESTION FOR COURT OR JURY. 225 

to hold that we are not at liberty to look at those 
passages and consider what is their proper mean- 
ing.''^ And while all the judges concurred entirely 
in the above statement, Lopes, L. J., took occasion 
to add the following : * * It was said that the 
court could ■ not look at the provisions of the 
civil code of Peru .and form any opinion as 
to the meaning of any of its provisions. I be- 
lieve the rule in such a case to be that if an 
expert witness called to prove foreign law states that 
any text book, decision, code, or other legal docu- 
ment truly represents that law, then the court is at 
liberty to regard the legal document to which he re- 
fers, not as evidence per se, but as part of the testi- 
mony of the witness, and to deal with it, and give 
the same eifect to it, as to any other portion of the 
evidence of the expert witness." 

$ 99. Whether the Question of Foreign Law is 
for the Court or Jury. — As courts do not take judi- 
cial notice of foreign laws, unless expressly author- 
ized by statute to do so, the foreign law must be 
proved as a fact, and the question arises, when one 
learned in the foreign law testifies in regard to the 
same, whether the testimony thus given is addressed 
to the court for its information as law, or to the jury 
to be passed on by them as a question of fact. The 
authorities are not in harmony as to the true rule to 
be observed in such cases. Some of the authorities 
announce that the evidence of the existence of a 
foreign law is to be addressed to the court,' aiid 



1 Concha v. Murrieta, L. R. 40 Oh. Diy. 543, 560. 
a Ferguson y. Clifford, 37 N. H. 86; Wilson y. Carson, 12 Md. 64, 75; 
Bank y. Barry, 20 Md. 287, 295. 

(15) 



226 EXPERT TESTIMONY. 

such is the opinion of Greenleaf and Story/ But 
other authorities hold that the evidence is for the 
jury.* There is authority for saying, that when the 
foreign law is written and is authenticated in the 
manner provided for by the Act of Congress or the 
statutes of the State, the testimony is addressed to 
the court, and the jury are not concerned with it. 
But if the law is unwritten, its existence being proved 
by the parol testimony of witnesses, the jury must 
then pass on the credibility of the witnesses and find 
whether its existence be proven.* 

It has sometimes been supposed that the interpre- 
tation or construction of foreign law is also a matter 
of fact for the jury.* But we think that the great 
weight of authority is the other way, and that the 
meaning of the law is for the court.* **What is the 
law of another State, or of a foreign country," says 
the Supreme Court of North Carolina, *'is as much 
a * question of law,' as what is the law of our own 
State."' 

In Massachusetts the rule is that when the ev- 
idence consists of the testimony of experts as to the 
existence or prevailing construction of a statute, the 
jury must determine what the law is,^ but if it con- 

1 Greenl. on Ev. § 486; Stoiy on Conflict of Laws, § 638.^ 

> Charlotte y. Chouteau, 33 Mo. Id4; Cobb v. Griffith, 87 Mo. 90, 94; 
Holman v. King, 7 Met. (Mass.) 384; Hale v. New Jersey Steam KaTiga- 
tion Co., 15 Conn. 549; Dyer t. Smith, 12 Conn. 385; State y. Jackson, 
2 Dey. (N. C.) 563; Ingraham y. Harr, 11 Ohio, 255. 

> See Kline y. Balcer, 99 Mass. 253, 254; Hooper y. Moore, 5 Jones N. 
C. Law, 130, 134; Bock y. Lauman, 24 Pa. St. 435, 445. 

* Moore y. Gwyn, 5 Ired. (N. C.) 187. 

* Cobb y. The Griffiith, etc. Co., 87 Mo. 94; Bock v. Lauman, 24 Pa. 
St. 435,446; Consequa y. Willings, 1 Pet. C. C. 225; Sid well y. Bobert, 
1 Pa. 283; Lockwood y. Crawford, 18 Conn. 361 ; State y. Jackson, 2 
Dey. (N. C.) 563; Inge y. Murphy, 10 Ala. (K. S.) 885. 

< Hooper y. Moore, 5 Jones N. C. Law, 130, 132. 
7 Kline y. Baker, 99 Mass. 253, 254. 



POWERS AND OBLIGATIONS OF ATTORNEY. 227 

sists of a single statute or judicial opinion, the 
question of its construction is for the court/ 

$ 100. Testimony as to Usasre and Practice of 
Courts of Another State. — Lawyers are permitted to 
testify in the courts of another State, as to the usage 
and practice of the courts in the State in which they 
practice.' In the case cited, the depositions of law- 
yers and judges of Rhode Island were received in 
the courts of Massachusetts, to show that the service 
of a writ of arrest in the manner set forth in the 
officer's return was a good and valid service under 
the practice and usage of the courts of Rhode Island, 
giving the courts of that State jurisdiction, and that 
a judgment concluded on such service would be 
valid there. It amounted to proof of the unwitten 
law. But the rule allowing experts to testify does 
not enable a party to call lawyers to testify what is 
the practice of the profession, under a certain stat- 
ute of the State, for the purpose of guiding the judge 
in the construction to be given to it, in cases where 
the question arises in the courts of the State which 
enacted the statute.' 

$ 101. Testimony as to Powers and Oblisrations 
of an Attorney in his Relations to his Clients.— It is 
error to receive the opinions of lawyers as to the 
rights and duties of an attorney as between himself 
and his client.* In the particular case, it was held 
error to receive the opinions of such witnesses as to 
whether, in a certain state of facts, an attorney 
should, as a matter of course and of duty, have 



1 Ely y. James, 123 Mass. 36, 44. 
> Mowry y. Chase, 100 Mass. 79. 
* Gaylor's Appeal, 43 Conn. 82. 
4 Olossman y. Merkel, 3 Bosw. 402, 409. 



228 EXPERT TESTIMONY. 

moved for a reference, and whether he had or had 
not a right, in the discharge of his legal and proper 
duty, to open a default.^ 

§ 102. The Yalne of Legral Services.— The sub- 
ject of the testimony of experts as to the value of 
legal services perfonned is considered in another 
connection and need not be referred to here.' 

1 See section 11. 
» See Chapter Vm. 



TESTIMONY OF NAUTICAL MEN. 229 



CEAPTER VI. 



EXPERT TESTIMONY IN THE TRADES AND ARTS. 
SECTION. 

103. Testimony of Nautical Men. 

104. Testimony of Railroad Men. 

105. Testimony of Insurance Men. 

106. Testimony of Civil Engineers. 

107. Testimony of Soryeyors. 

108. Testimony of Millers and Mill-wrights. 

109. Testimony of Machinists. 

110. Testimony of Mechanics. 

111. Testimony of Masons. 

112. Testimony of Farmers and Gardeners. 

113. Testimony of Cattlemen. 

114. Testimony of Painters and Photographers. 
116. Testimony of Lumbermen. 

116. Testimony of Experts in Patent, Trade-mark and Copyright 

Cases. 

117. Testimony of Business Men as to Usage. 

118 Testimony as to Technical Terms and Unusual Words. 

119. Translation by Experts of Writings from a Foreign Language. 

120. Opinions of Experts in Miscellaneous Cases. 

$ 103. Testimony of 19^aatlcal Men. — The opin- 
ions of persons engaged in the navigation of vessels 
and boats are received on questions pertaining to 
nautical science. *'Such men form their opinions 
from facts within their own experience, and not from 
theory or abstract reasoning. They come, therefore, 
even more properly within the definition of experts 



230 



EXPERT TESTIMONY. 



than men of mere science.'" Their opinions have 
been received as to the sea-worthiness of vessels;' as 
to what caused a vessel to leak;* as to the soundness 
of a chain cable;* as to the possibility of avoiding a 
collision by the use of proper care on the part of the 
officers and crew of one of the vessels;* as to whether 
a port could have been made by skillful manage- 
ment;* as to whether a vessel was stranded through 
unskillful and careless management, or inevitable 
accident;' as to the proper mode and time of chang- 
ing the fastening of boats in a tow;* as to whether 
it would be safe or prudent for a tugboat, on any wide 
water, to tug three boats abreast, with a high wind;* 
and aleo as to the practical effect produced on a ship 
by cross seas and heavy swells, shifting winds and 
sudden squalls.^* Experienced river navigators, who 
kneV both boats, have been allowed to testify as to 
what would be the probable effect on one boat of the 



1 Delaware, etc. Steam Towboat Co. y. Starrs, 69 Pa. St. 36, 41. And 
see Clark v. Detroit Locomotive Works, 32 Mich. 360. 

s Beckwith y. Sydebotham, 1 Camp. 117; Baird y. Daly, 68 N. Y. 648; 
Patchin y. Astor Mutual Ins. Co., 13 N. Y. 268; Western Ins. Co. y. 
Tobin, 32 Ohio St. 77, 94. The certiflcate of a marine surveyor and in- 
spector, made in the course of his business, is competent evidence of 
sea-worthiness at that time, if supported by his oath that he examined 
the vessel, and has no doubt that the facts stated in it are true, although 
he has no independent recollection of the facts. Perkins v. Augusta 
Ins. Co., 10 Gray, 312. 

> Parsons v. Manuf., etc. Ins. Co., 16 Gray, 463. See, too, Zngasti y. 
Lamer, 12 Moore P. C. 331, 336. 

4 Reed v. Dick, 8 Watts (Penn.), 479. 

» Jameson v. Driukald, 12 Moore, 148; Fenwick v. Bell, 1 Car. A Kir. 
(47 Eng. C. L. 311) 312; Carpenter v. Eastern Tranportation Co., 71 
N. Y. 674; Spickerman v. Clark, 9 Hun, 133. 

« Dolz v. Morris, 17 N. Y. Sup. Ct. 202, 203. 

7 New England Glass Co. v. Lovell, 7 Cush. (Mass.) 319, 322. 

8 Delaware, etc. Steam Towboat Co. v. Starrs, 69 Pa. St. 36, 41. 
• Transportation Line v. Hope, 95 U. S. 297. 

» Walsh V. Washington Marino Ins. Co., 32 N. Y. 427. 



TESTIMONY OP NAUTICAL MEN. 231 

waves or swells of another and very large boat — 
that it would have a tendency to open the seams of 
the outriggers, and cause the caulking to fall out, 
which would have a tendency to let water in/ The 
opinions of nautical experts have also been received 
as to the proper management of a ship.' And ex- 
perienced navigators who were acquainted with the 
nature and extent of obstructions in the waters nav- 
igated, and the dangerous character of their naviga- 
tion, have been held competent to express an opinion 
as to the probable cause of the loss of a vessel.' In cases 
of collision, where the question is as to the direction 
from which the blow appeared to have come, the 
opinions of nautical experts have also been received.* 
In the case cited, the court say: ''It may easily be 
perceived how an experienced boatman could judge 
of the direction of the bodv in motion, that dis- 
placed a portion of the plank and timbers of the in- 
jured vessel, as a surgeon can tell from what quarter 
a blow has been aimed that inflicts a wound upon 
the person; but a mere description of the broken 
fragments, in the one case, or the lacerated integu- 
ments in the other, will seldom, if ever, enable a 
jury to say how the disturbing cause made its ap- 
proach." Nautical experts may be permitted to 
testify as to what is a full cargo for a ship to carry 
with safety,' and to express an opinion as to the ef- 
fect of a deck load upon the safety of a vessel.' They 
have been allowed to state that the opening of the 

1 Western Ins. Co. v. Tobin, 32 Oliio St. 77, 97. 

* Guiterman v. Liverpool, etc. Steamship Co., 83 N. T. 358. 
» Western Ins. Co. v. Tobln, 32 Ohio St. 77, 92. 

* Steamboat v. Logan, 18 Ohio, 375. And see Zugasti y. Lamer, 12 
Moore P. C. 331, 336. 

* Ogden V. Parsons, 23 How. 167. 

< Lapham y. Atlas Ins. Co., 24 Pick. (Mass.) 1. 



232 EXPERT TESTIMONY. 

garboard seam in a vessel was due to the working 
of the stem/ Upon the question of negligence in 
mooring a vessel, the ship's keeper has been held 
competent to testify as an expert, as to the condi- 
tions of the fastenings of the vessel as to safety.* A 
shipwright who has examined a decayed vessel may 
give his opinion, founded on the condition of the 
timbers at the time of his examination, whether a 
person could have removed a part of the * * thick 
streak" some months before, without discovering 
that the timber under it was decayed.' The opinion 
of nautical experts are admissible upon the question 
whether an injured boat was worth repairing.* But 
it has been held that one experienced in raising 
sunken boats and repairing them, and who was ac- 
quainted with the boat in question, could not express 
an opinion as to what would be the expense of rais- 
ing and repairing it; that he might state the partic- 
ulars, but the jury should compute the expense, as 
it was a matter not lying peculiarly within the 
knowledge of experts.* On the other hand, one who 
had worked in a ship-yard, and had been the owner 
of vessels, has been permitted to testify as to the 
difference in value of a vessel as repaired, and what 
her value would have been, if repaired according 
to contract.* And an expert in the wrecking busi- 
ness has been allowed to state whether a sunken tug, 
which he had examined, could be raised as a whole, 
and to express an opinion as to its value when raised 



1 Paddock v. Commonwealth Ins. Co., 104 Mass. 521, 529. 

» Moore v. Westeirelt, 9 Bos. (N. Y.) 659. 

> Cook y. Castner, 9 Cush. (Mass.) 266. 

^ Steamboat y. Logan, 18 Ohio, 375. 

» Paige y. Hazard, 5 Hill (N. Y.), 604. 

• Sikes y. Paine, 10 Ired. (N. O.) Law, 282. 



TESTIMONY OF NAUTICAL MEN. 233 

in comparison with the cost of raising it/ Sailing 
rules and regulations, prescribed by law, of course, 
furnish the paramount rule of decision upon ques- 
tions of navigation. But where in any case a dis- 
puted question of navigation arises, in regard to 
which neither the law nor the rules of the court reg- 
ulating admiralty practice have made provision, then 
the evidence of nautical experts is admissible as to 
the general usage in such cases.' Experienced nav- 
igators and masters of vessels have been permitted 
to express an opinion that a deposit of coin under 
the ballast, or under the cargo, was unusual, and 
increased the hazards and risk of loss to which the 
coin was exposed.' So one who has followed the sea 
for forty years has been allowed to express an opin- 
ion as to whether an article was properly stowed on 
a boat.* ** What is a competent crew for the voy- 
age; at what time such crews should be on board; 
what is proper pilot ground; what is the course and 
usage of trade in relation to the master and crew be- 
ing on board, when the ship breaks ground for the 
voyage; are questions of fact dependent on nautical 
testimony.''* 

A pilot who knew the place of the disaster, and 
the pilot in charge of the boat at the time, have been 
held competent to testify as to whether it was proper 
to suffer the pilot to pilot the boat at the time and 



1 Blanchard v. New Jersey Steamboat Co., 3 N. 'X. Sup. Ct. 771. 

* The City of Washington, 92 U. S. 31. 

* Leitch y. Atlantic Mutual Ins. Co., 66 N. Y. 100, 106; s. c, 5 Ins. L. 
J. 775. 

< Price V. Powell, 3 N. Y. 322. • 

' McLanahan t. Universal Ins. Co., 1 Pet. 170, 183, per Mr. Justice 
Story. 



234 EXPEBT TESTIMONY. 

place of the accident/ And a mate of a steamboat 
who had been engaged eight or ten years in naviga- 
tion, and who saw the collision in question, has been 
allowed to testify that the sunken boat was not car- 
rying a proper light at the time of the accident.' 
But one who is not an expert is incompetent to ex- 
press an opinion as to the sea- worthiness of a float- 
ing dock.' Where it was claimed that the length of 
the shaft caused a boat to settle by the stern, and 
the journals to heat and bind, it was held that an 
expert could be asked whether the boat settled more 
than it ought to, or than was usual.* In the same 
case it was held that an expert could not be allowed 
to express an opinion as to the course which the 
owner of a steamer ought, as a prudent man, to take 
as to the laying up for examination and repairs on 
discovering defects in the 6ngine. 

Expert testimony as to whether under the circum- 
stances it was the exercise of good seamanship and 
prudence to attempt to have a vessel, which had 
sprung a leak, towed to her place of destination, in- 
stead of putting in to a near port for repairs, has 
been held admissible.* And a question has been 
allowed which asked a nauiical expert whether, on 
the evidence already given, he was of the opinion 
that a collision between the ships could have been 
avoided by proper care on the part of the defendant's 
servants.* When the question was whether the 
crew of a boat at a particular time were sufficient to 
properly run her, the opinion of a boatman has been 

1 Hill V. sturgeon, 28 Mo. 323. 

* Weaver v. Alabama, etc. Co., 35 Ala. 176. 
» Marcy v. Sun Ids. Co., 11 La. Ann. 748. 

* Clark v. Detroit Locomotive Works, 32 Mich. 348. 
» Union Ins. Co. v. Smith, 124 U. S. 405. 

< Fenwick v. Bell, 1 0. A K. 312. 



TESTIMONY OF NAUTICAL MEN. 235 

held admissible/ The opinion of lumbermen and 
pilots have been held admissible on the question 
whether a place in a river where a raft was moved 
was a safe place to move it.' The opinion of a nau- 
tical expert has been received on the question 
whether it was good seamaship to leave a barge 
moored with a falling tide.' And the opinion of a 
harbor master who had observed the vessel at the 
time has been held admissible on the question 
whether a vessel in entering the harbor had been 
skillfully handled by the sailing master.* The opin- 
ion of a ship captain has been received as to the 
necessity for a jettison,* and whether a vessel could 
prudently take more than a certain amount of cargo.* 
A witness who had been an engineer and an as- 
sistant engineer on different steamers, was familiar 
with the operation of tugs about the harbor, and 
who at the time of the accident, and for some years 
prior, was foreman of an elevator, and during that 
time had frequent and constant opportunities of ob- 
serving the way in which the tug brought vessels 
into the wharf at the elevator, has been held com- 
petent to give an opinion, as an expert, upon the 
state of the case as he observed it, as to whether a 
vessel was skillfully or negligently brought to the 
pier by the captain of the tug.' The opinion of a 
boat builder has been received as to the damage 
done to a boat negligently run down and sunk." 

1 McCreary v. Tark. 29 Ala. 244. 
> Hayward v. Knapp, 23 Minn. 430. 
» Leary v. Woodruff, 76 N. Y. 617. 
« Ward V. Salisbury, 12 HI. 309. 
« Price V. Hartshorn, 44 Barb. 665; 44 K. Y. 94. 
• Weston V. Foster, 2 Curt. C. C. 119. 
7 Baltimore Elevator Co. y. Neal, 65 Md. 438. 
Paige V. Hazard, 5 Hill, 603. 



236 EXPERT TESTIMONY. 

$ 104. Testimony of Bailroad Men. — An expe- 
rienced railroad man, who has made a business of the 
running and management of railroads, is as fairly 
an expert as one skilled in any other art, and he 
may give testimony as an expert in questions of rail- 
road management. The running and management 
of railways is so far an art, outside of the experience 
and knowledge of ordinary persons, as to render the 
opinions of persons skilled therein admissible in ev- 
idence.^ The testimony of such witnesses has been 
received in numerous cases. 

Engineers. — A locomotive engineer has been 
allowed to testify as to the speed that is 
usual and considered safe in ** backing" an 
engine drawing a train after dark, and to 
state the effect of an engine striking aii an- 
imal, when running backward, and explain the 
structure of a locomotive tender.' An engineer in 
charge of a train of cars has been permitted to ex- 
press an opinion as to the possibility of avoiding an 
injury to animals, struck by the locomotive, the 
opinion being given in view of the distance between 
the animals and the train, when the former came 
upon the track,' One who testified that he had 
charge of a stationary steam engine, and who did 
not claim to be a practical engineer, or a first-class 
locomotive engineer, but who had fired and handled 
a locomotive, and understood an engine, has been 
held competent to testify as an expert, as to the ef- 
fect of a leaky throttle valve upon the handling and 

1 Belief ontaine, etc. B. R. Co. y. Bailej, 11 Ohio St. 333, 335; Macon, 
etc. R. R. Co. V. Johnson, 38 Ga. 409, 43S; nilnois Central R. R. Co. v. 
Reedy, 17 HI. 580. 

> Cooper v. Central Railroad of Iowa, 44 Iowa, 140. 

3 Bellefoatain, etc. R. R. Co. v. Bailey, 11 Ohio St. 333. 



TESTIMONY OP RAILROAD MEN. 237 

operation of a locomotive/ A locomotive engineer 
who has observed the nature, operation and eflfect 
of sparks issuing from coal burning engines, has 
been held competent to testify as to the size and ef- 
fect of sparks issuing from such engines, as to the 
time during which they would remain alive, and as 
to the distance at which fire could and could not be 
communicated by them.' And in the same case it 
was decided that conductors, master-mechanics in 
railroad shops, brakemen and yard-masters, might 
give testimony on the same subject. A person 
practiced in building locomotives and in running 
them on trial trips, has been held competent as an 
expert to testify as to the distance within which a 
train of cars might be stopped by a steam break." 
When the question was whether an engineer in charge 
at the time of an injury could or could not have 
stopped his engine in time to have prevented the 
injury, another engineer has been allowed to give 
his testimony on the subject, and by way of illus- 
trating what could be done as to stopping an engine, 
has been allowed to state what he knew could be 
done by his having done it.* The opinions of a lo- 
comotive engineer are admissible on the question 
whether the boiler of an engine was safe."^ The 
opinion of an engineer has been held admissible as 
to the distance in which he could stop a train going 
down hill.' It has been held that railroad engineers 
or constructors are not the only persons competent 



1 Brabbitts y. Chicago, etc. B. B. Co., 38 Wie. 289. 
< Davidson y. St. Paul, etc, B. B. Co., 34 Minn. 51. 
' Eckert y. St. Louis, etc. B. B. Co., 13 Mo. App. 352. 

* Augusta, etc. B. B. Co. y. Dorsey, 68 Ga. 228, 235. 
« Chicago, etc. B. B. Co. y. Shannon, 43 Ul. 339. 

• Maher y. Atlantic, etc. B. B. Co., 64 Mo. 267. 



238 EXPERT TESTIMONY. 

to give an opinion as to how the running off of cars 
on the inside of a curve, instead of the outside, 
could be accounted for; but that prima facie the 
question Qould be answered by any person acquainted 
with the elementary principles of mechanism, and 
experts only in that branch of science.' And in an 
action agaipst a railway company for the negligent 
killing of a person on the track, it appearing that at 
the time of the accident strangers were in the cab 
of the engine with the engineer, the latter has been 
permitted to testify that their presence did not in- 
terfere with the performance of his duties, it being 
thought that the jury could not judge of this fact 
as well as the witness.' 

Conductors. — A railroad conductor has been 
allowed to testify concerning the duties of an 
engineer as to looking forward, the court say- 
ing : ''Certainly one who is in authority over 
an engineer whose duty is to obey, would be 
competent to testify as to what those duties 
were.'" And when the question was whether 
at the time of an accident the brakemen were in 
their proper places, it was held that the opinion of 
one who had been brakeman, engineer and con- 
ductor was admissible.* And the opinion of a rail- 
road conductor has been held admissible on the 
question whether certain railroad ties were fit for 
use.' Railroad conductors are competent to testify 
as to the means of stopping a train of cars.* But it 



1 Murphy v. N. Y., etc. K. R. Co., 66 Barb. 125. 

> Marcott v. Marquette, etc. R. R. Co. 49 Mich. 99. 

> Augusta, etc. R. R. Co. v. Dorsey, 68 Ga. 228, 235. 

« Cincinnati, etc. R. R. Co. v. Smith, 22 Ohio St. 246. 
s Grand Rapids, etc. R. R. Co. y. Huntley, 38 Mich. 537. 
< Mobile, etc. R. R. Co v. Blakely, 59 Ala. 471. 



TESTIMONY OF RAILROAD MEN. 239 

has been held that a conductor was not qualified to 
express an opinion as to whether a car would have 
turned over at the time the accident occurred if such 
chains, as were subsequently placed on the car, had, 
at the time of the accident, connected the truck with 
the body of the. car. A conductor was said to have 
no peculiar knowledge on that subject/ And a 
conductor has not been allowed to express the opin- 
ion that if the brakeman had held on to his brake 
and exercised ordinary care he would not have been 
thrown from his car.* His opinion was not inad- 
missible as coming from a conductor, but because 
the question involved was not one of science or 
skill. One who had been a brakeman before he be- 
came a conductor has been allowed to testify that 
the train ought to have been stopped quicker than 
it was, and in from three to five minutes.' 

Other Persons. — A brakeman is competent 
to testify as to the effect produced upon a 
train of cars by the sudden turning on of steam 
after the speed of the train has been checked 
by the brakes.* And one who has been a brake- 
man for several years has been held competent 
to state his opinion as to the rate of speed a train 
was running at the time of an accident.* The com- 
petency of witnesses to testify as to the speed of 
trains is subsequently more fully considered. A 
locomotive fireman of four years' experience has 
been allowed as an expert to state his opinion as to 



* Btxby V. Montpelier, etc. R. R. Co., 49 Vt. 123. 
s Gavisk v. Pacific R. R. Co., 49 Mo. 274. 
' Freeman v. Trayelers' Insurance Co., 144 Mass. 572. 
^ Wbitsett V. Chicago, etc. R. R. Co., 67 Iowa, 150. 
« Louisville, etc. R. R. Co. v. Shires, 108 m.^617. 



240 EXPERT TESTIMONY. 

the time or distance within which a given train, 
under a given set of circumstances, could be stop- 
ped.^ 

The road-master of a railroad, whose duty it was 
to receive and inspect ties, has been allowed to 
testify as to the quality of certain railroad ties.' 

One who had been traveling as a mail agent 
regularly for two years on the cars has been allowed 
to answer the question, **at what rate of speed 
should the train have been running to stop at the 
usual stopping place?'" The court in the case above 
cited said, '*to constitute an expert, it cannot be 
necessary that one should be connected with the 
management of the train. If he is in position to 
witness the result of the management, and to ob- 
serve the effect when the means of checking the 
train are applied, he may be as competent to express 
a satisfactory opinion as the conductor, the brake- 
man, or, possibly, even the engineer." 

One who had been the president of two or three 
city railroads, and had been engaged for some years 
in building such roads, has been allowed to give his 
opinion as to whether a street rail had been pro- 
perly laid.* 

The opinion of a railroad superintendent, upon a 
matter within the scope of his employment, '^stands 
upon the footing of an opinion of an expert.'" 

A witness who testified that he was in the business 
of railroad supplies, and that he was somewhat 
familiar with railroad brakes, and with the oper- 

1 Grinnull y. Chicago, etc. R. B. Co.«73 [owa, 93. 

2 Jefferflonville B. B. Co. v. Lanham, 27 Ind. 171. 

« Detroit, etc. B. B. Co. v. Van Stelnbur^, 17 Mich. 99. 

* Carpenter v. Central Park, etc. B. B. Co., 11 Abb. Pr. (N. S.) 41tf. 

ft Mason, etc. B. B. Co. v. Johnson, 38 Ga. 409. 



TESTIMONY OF RAILROAD MKN. 241 

ations of them, and had used them on a railroad, 
has been allowed to state within what distance such 
a train as that in question could be stopped with 
ordinary brakes, on an ascending grade, running at 
such a rate that a man could run faster than the 
train was going.' 

A machinist connected many years with railroads 
has been held competent to express an opinion as to 
what threw a train of cars from the track.' 

A witness who had been employed in railroad 
Avork for twenty-five years, and part of the time had 
been in charge of a turn-table, has been held com- 
petent to answer the question: ** Would it be practi- 
cable to lock or fence turn-tables?'" In a case in 
South Carolina a witness, who was personally ac- 
quainted with the character and location of a turn- 
table, was allowed to give his opinion as to the dan- 
ger of it.* And in an action for injuries caused by 
a turn-table used on a street railway, a witness shown 
to be an expert was allow^ed to testify as to the kind of 
turn-tables in general use, as to whether the one in 
question was of the most approved kind in use, and 
as to its defects and how they might be remedied. '^ 

In the case last cited a carpenter and joiner 
who had been connected with a street railway for 
four years, and had made turn-tables for it, was held 
competent to testify \vhether a certain turn-table 
was safe. 

A station agent who received and shipped all goods 
at his station has been allowed to give his opinion 

» Mott V. Hudson, etc. R. B. Co., S Bos. (N. Y.) 345. 
« Seaver v. Boston, etc. R. R. Co., 14 Gray (Mass.), 466. 
3 Kolsti V. Minneapolis, etc. R. R. Co., 32 Minn. 133. 
< Bridger v. Railroad Company, 23 S. C. 24. 
5 Fltts V. C. C. R. R. Co., no Wis. 323. 

(16) 



242 EXPERT TESTIMONY. 

as to whether it would have interfered with 
the transaction of the shipping business at that 
point to have maintained a fence along the railroad 
tracks.* 

It appearing that a car load of stock in transit 
was suflfering greatly, probably from heat, it was 
held not objectionable to ask an expert what course 
the carrier might properly pursue for their relief.' 

When the question was as to the competency of 
an express messenger and baggage-man, it was held 
that persons shown to have had long experience as 
express messengers and baggage-men could not ex- 
press their opinion as to the party's incompetency 
to perform the duties of such a position. The ques- 
tion was not regarded as being one of science or 
skill.' 

When a train was running backward at the time 
of an accident and there was evidence that the track 
was in the same condition at that time as when seen 
by the expert, the latter was allowed to state 
whether, if the track was in the same condition, it 
would be more dangerous to run the train backward 
than forward.* 

Where the question was whether a rail w^as de- 
fective, or whether it had been maliciously cut, a 
newspaper editor, who had visited the scene of the 
accident for the purpose of reporting it, and had 
testified that during a period of twenty years he 
had visited * 'dozens of railroad accidents,'' and had 
examined them for the purpose of reporting the' 
probable cause of the accident, was asked to state 

1 Robinson v. St. L., etc. R. R. Co., 21 Mo. App. 141. 

2 Lindsley v. Chicago, etc. R. R. Co., 36 Minn. 540. 
' Moore v. Chicago, etc. R. R. Co., 65 Iowa, 605. 

* Kubns y. Wisconsin, etc. R. R. Co., 70 Iowa, 561. 



TESTIMONY OF RAILROAD MKN. 243 

Avhether he had arrived at any conchision as to thi 
cause of the accident. The court held that it was 
no error to exclude his opinion/ 

So it has been held that a witness of long railroad 
experience cannot be allowed to testify whether the 
blowing of a steam-whistle was, under the circum- 
stances of the case, prudent.' It has been held no 
error to refuse the testimony of switchmen to show 
that in their opinion it was not necessary for 
another switchman to have been where he was when 
he received the injury complained of. The opinions 
of the witnesses, though experts, were inadmissible, 
as the subject-matter of inquiry did not partake of 
the nature of a science so as to require a course of 
previous habit or study to an attainment of a knowl- 
edge of it.* 

Speed of Train. 8 — From what has been already said it 
appears that the opinions of experienced railroad men 
are received when the question is as to the space with- 
in which a train may be stopped. The question is a 
proper one for expert testimony. In a case in the 
St. Louis Court of Appeals, recently decided, the 
court in discussing this matter say: ''AH men w^ho 
live on or near the line of a railroad may have a 
general knowledge on the subject, but a correct and 
reliable judgment can only be attained by some 
practical experience. Just within what distance a 
train might be stopped in a given case, with safety 
to property, and the lives of persons thereon, would 
depend upon the speed of the train at the time, the 
grade of the track, the size of the train, whether the 

1 Hoyt V. Long Island K. K. Co., 67 N. Y. 678. 

• HIU V. Portland, etc. K. B. Co., 55 Me. 438. And Bee p. 16. 

» Pennsylvania Co. v. Conlan, 101 Dl. 93. And see p. 14. 



244 EXPERT TESTIMO>^Y. 

ours were loaded or empty, and the kind of brakes 
used. It is unreasonable to suppose that the judg- 
ment of a witness on such a subject, who had no 
practical knowledge or experience in the running of 
trains, or had never given the subject special study 
and investigation, would be worth any more than 
the judgment of the jurors themselves." It was 
accordingly held error to allow a witness to express 
an opinion on such a subject, who testified that he 
had never run an engine, knew nothing about the 
construction of trains and had never Avorked on a 
railroad, but who had frequently been about the 
railroad, had often seen trains running at the rate 
of speed that the train in question was running, 
flagged and stopped. And in the same case it was 
also held error to allow a witness to express an opin- 
ion on the question who had never run an engine, 
but had worked as a section hand on a railroad for 
two years,. had frequently seen trains flagged, and 
had himself flagged them half a dozen times. ^ This 
matter is elsewhere alluded to, and attention 
called to the language of the Supreme Court of 
Michigan on the question of the]|competency of wit- 
nesses to give opinion evidence on this subject. 

Questions as to the speed with which trains were 
moving are not, strictly speaking, scientific inquiries, 
but any man possessing a knowledge of time and 
distances is usually competent to express an opinion 
upon the subject,* Witnesses living'near a railroad 
and habitually observing the passage of trains, have 



1 Gourley v. St. Louis, etc. K. R. Co., Mo. App. 87, 94 (1889). 
a Detroit, etc. R. R. Co. v. Van Stclnburg, 17 Mich. 99; Guggenheim 
V. Lake Shore, etc.R. R. Co., 66 Mich. 150. 



TESTIMONY OF INSUKANCK MKN. 245 

therefore been allowed to express an opinion as to 
the velocity with which a train was moving.* The 
Supreme Court of Michigan, while adhering to the 
doctrine that the speed of trains is not properly a 
scientific question, has said in regard to opinions of 
persons riding in the cars, and not observing from 
the outside: '* We are not prepared to say they may 
not be received, but we think they should be ex- 
cluded, unless the witnesses first show such ex- 
tended experience and observation as to qualify 
them for forming such opinions as would be reliable. 
It is not presumable that ordinary railway travelers 
usually form such habits.''" And in a case in the 
Supreme Court of Wisconsin, the court holds that a 
non-expert witness may testify as to his estimate of 
the rate of speed at which a railroad train w^as mov- 
ing, but declares that such an estimate is very un- 
satisfactory proof, and should be received with great 
caution.' 

A railroad contractor has been allowed to testifv 
that he thought a certain culvert was sufficiently 
large for the size of the stream.* 

§ 105. Testimony of Insurance Men. — The opin- 
ions of men who are skilled in matters of insurance 
are received in evidence on questions of insurance 
which lie beyond the ordinary and common knowl- 
edge of mankind. For instance, the opinions of 
such witnesses have been received: 1. As to the 
materiality of concealed facti^. It must be said that 



1 Nutter V. Boston, etc. R. R. Co., 60 N. H. 483. 
« Grand Rapids, etc. R. R. Co. v. HunUey, 38 Mich. 537. And 8eo 
Guggenheim v. Lake Shore, etc. R. R. Co,, 66 Mich. 150. 
Hoppe y. Chicago, etc. R. Co., 61 Wis. 357. 
< Emery v. Raleigh, etc. R. R. Co., 102 N. C. 217. 



246 , EXPERT TESTIMONY. 

there has been a decided conflict of authority, both 
in this country and in England, on the right of un- 
derwriters, and others skilled in the business of in- 
surance, to testify as to the materiality of concealed 
facts in applications for insurance. So marked has 
been the conflict of authority on this question in 
England, that one of the most eminent of the En- 
glish writers on the law of evidence declares that no 
satisfactory answer can be given to it.^ We believe, 
however, that the better rule is to consider the ad- 
missibility of such evidence as dependent on the 
nature of the facts concealed. It is evident that those 
facts may be of such a nature that ordinary jury- 
men would be perfectly competent to decide the 
question of their materiality, in which case there 
would s6em to be no justification for the admission 
of expert testimony. On the other hand, the facts 
may be so special and technical in their nature, es- 
pecially in questions of marine insurance, that per- 
sons without previous experience in the business of 
insurance would be unable, from the very nature of 
the case, to arrive at any intelligent conclusion, in 
which case it seems that there would exist a necessity 
for the admission of expert testimony." 

As Mr. Justice Ranney expressed it in a case de- 
cided in Ohio as long ago as 1853: ''If the answer 
can be given from ordinary experience and knowl- 
edge, the jury must respond to it unaided; if the 
effects of such a cause are only known to persons of 
skill, and are to be determined only by the applica- 
tion of some principle of science or art, such per- 



1 2 Taylor's Ev., 1420. 

2 Sec. 5 Am. Law Review, 237; 1 Aroold^s InB. 573; 2 Duer's Ins. 
780, n.; 1 Smith's L. C. 490, n.; Hill v. Lafayette Ins. Co., 2 Mlcb.'476. 



TESTIMONY OF INSURANCK MEN. 247 

sons may give the results of their own investigation 
and experience to the jury in the way of opinions, 
the better to enable them to come to a correct con- 
clusion."* 

We think the weight of authority in this country 
is in favor of the reception of such evidence in those 
cases in which the facts are so technical and special 
as not to lie within the common observation of men 
in general.* And when the testimony of underwrit- 
ers is received as to the materiality of facts, the 
question is not as to the effect which such facts, if 
disclosed, would have had on the particular witness, 
but on underwriters generally. ' ' I do not allow you 
to ask the witness what he himself, as an under- 
writer, would have done; but whether, from his 
knowledge of the business, he is able to state that 
the facts in question would or would not have an 
influence with underwriters generally in determining 



1 Hartford Protection Co. v. Harmer, 2 Ohio St. 452, 457. 

' Seaman v. Fonerau, 2 Strange, 1183; Chaurand v. Angerstein, Peake 
N. P. C. 61 ; Hajrwood v. Rodgers, 4 East, 590; Littledale v. Dixon, 1 
Bob. & Pul. 151 ; Richards v. Murdock, 10 B. & 0. 537 ; Elton v. Larkins, 
5 C. & P. 385; Berthon v. Loughman, 2 Starkie, 258; Quinn v. National, 
etc. Ins. Co., 1 Jones Sc Carey (Ir.) 316; s. c, 1 Benn. Fire Ins. Cas. 
689; Hawes v. N. E. Ins. Co., 2 Curtis C. C. 229; Moses v. Delaware 
Ins. Co., 1 Wash. C. C. 385; Marshall v. Union Ins. Co., 2 Wash. C. C. 
357; Luce v. Dorchester Ins. Co., 105 Mass. 297; Daniels v. Hudson 
River Fire Ins. Co., 12 Cush. (Mass.) 416; Kern v. South St. Louis Mu- 
tual Ins. Co., 40 Mo. 19; Cornish v Fa*-ni Buildiugs Fire Ins. Co., 74 N. 
Y. 295; Hobby v. Dana, 17 Barb. (N. Y.) Ill; s. c, 3 Benn. Fire Ins. 
(Jas. 581 ; M'Lanahan v. Uaiversal Ins. Co., 1 Pet. 170, 187; Hartman y. 
Keystone Ins. Co., 21 Pa. St. 466; Mitchell v. Home Ids. Co., 32 Iowa, 
424; Stennett v. Pa. Fire Ins. Co., 68 Iowa, 674, 676. But see Carter v. 
Boehm, 2 Burr. 1905; Duriell v. Bederly, Ho1t,N. t. Cases, 283 ; Camp- 
bell V.Richards, 5 Bam. & Ad. 840; Milwaukee, etc. R. R. Co. v. Kel- 
logg, 94 U. S. 469; Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452 : 
Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Hill v, Lafayette Ins. Co., 2 
Mich. 476; s c, 3 Benn. Fire Ins. Cas. 325; Summers v. U. S. Ins. Co., 
13 La. Ann. 504; s. c, 1 Bigelow Ins. Cas. 131. 



248 EXPERT TESTIMONY. 

the amount of the premiums. If his knowledjre 
and skill in this particular business does enable him 
to state this, I think it is legal evidence. * * * 
Here the inquiry is, in substance, whether the 
market value price of insurance is affected by par- 
ticular facts. If the witness, being conversant with 
the business, has gained in the course of his em- 
ployment a knowledge of the practical effect of th<»j?e 
facts, or similar facts, upon premiums, he may in- 
form the jury what it is."* 

When the question is as to the materiality of con- 
cealed facts other witnesses than those experienced 
in insurance may be competent. For instance, in 
the case of life insurance, if the fact concealed were 
some bodily infirmity, it would certainly be compe- 
tent to receive the testimony of medical experts on 
the question whether such infirmity was calculated 
to shorten the life of the insured. Or in the case 
of marine insurance it would be proper to receive 
the testimony of experienced mariners or ship car- 
penters on the question whether the defect was such 
as to endanger the safety of the ship.' It has been 
held in the Supreme Court of the United States, 
that experts in fire insurance, accustomed to estimat- 
ing and calculating the hazard and exposures to fire 
from one building to another, could not testify that, 
owing to the distance between an elevator and a 
mill, and the distance between an elevator and some 
lumber piles, the elevator would not be considered 
as an exposure to the mill, and would not be consid- 

* Hawes v. N. E. Ins. Co., "i Curtis C. C. 229. And see Berthon v. 
Lougbman, 2 Starkie, 258, per Ilolroyil, J.; Hartman v. Keystode Ins. 
Co.,21Pa. St.466. 

* Hartford Protection Co. v. Ilarmer, 2 Ohio St. 452, 457; Leitch. v. 
Atlantic Milt. Ins. Co., 66 N. Y. 100. 



TESTIMONY OF INSURANCE MEN. 249 

ered in fixing a rate thereon, or in measuring the 
hazard of the mill or lumber.' 

2. As to Increase of Risk. — The opinions of ex- 
perts have, in some cases, been received on the ques- 
tion whether certain facts amounted to an increase 
of risk." But such opinions have likewise been held 
inadmissible.' In Pennsylvania, an msurance com- 
pany's clerk has been allowed to testify that a risk 
would not be taken at any premium, on the life of 
one known to be engaged in a certain occupation.* 
In the case last cited, Mr Chief Justice Black said: 
''But though the cases conflict seriously, I think 
none of them go so far as to say that one who knows 
the practice, not only of the particular office, but of 
insurance offices generally, may not give his opinion 
of the influence which a given fact wo\ild have had 
as an element in the contract. Certainly this is the 
opinion supported by the strongest authority and 
the best reasons.'' But in New York it has been 
held improper to prove by experts, that a person 
who was in the habitual use of intoxicating liquors, 
would not be considered an insurable subject.* 

1 Milwaukee, etc. R. R. Co. v. Kellogg, 94 U. S. 469. And see State v. 
WatsoD, 65 Me. 74. 

^ Daniels v. Hudson River Ins. Co., 12 Cusb. 416; Jefferson Ins. Co. v. 
Cotheal, 7 Wend. 72; Schenck v. Mercer Co. Ins. Co., 24 N.J. Law, 451 ; 
Mitchell V. Home Ins. Co., 32 Iowa, 424; Cornish v. Farm Buildings Ins. 
Co., 74 X. Y. 295; Kern v. South St. Louis Mut. Ins. Co. 40 Mo. 19; Ap- 
pleby V. Astor Fire Ins. Co., 54 N. Y. 253; Brink v. Mercbants% etc. Ins. 
Co. 49 Vt. 442. 

8 Joyce V. Maine Ins. Co., 45 Me. 169; Kirkby v. Pha^nix Ins. Co., 9 
Lea, 142; Mulny v. Mohawk Valley Ins. Co., 5 Gray (Mass.), 545; Can- 
nell V. Phoenix Ins. Co., 59 Me. 582; State v. Watson, 16 Me. 74,77; 
Thayer v- Providence Ins. Co., 70 Me. 539; Liverpool, etc. Ins. Co. v. 
McGuire, 52 Miss. 227; Franklin Fire Ins. Co. v. Gruver, 100 Pa. St. 266; 
Merchants^ Ins. Co. v. Dwyer, 1 Posey (Tex.), 441; Schwarzbach v. 
Ohio Valley Protection Union, 25 W. Va. 622. 

^ Hartinan v. Keystone Ins. Co., 21 Pa. St. 466. 
« Rawls v. Am. Mut. Life Ins. Co., 27 N. Y. 282. 



250 EXPERT TESTIMONY. 

3. As to Increase of Premium. — Experts have 
been allowed to testify whether certain facts, if they 
had been known, would have increased the pre- 
mium.' In giving such evidence they are really giv- 
ing testimony as to facts rather than drawing infer- 
ences from facts. The witness states, from his 
knowledge of the business of insurance, how certain 
facts would influence underwriters generally in fixing 
the amount of the premium. 

In a case in which the issue was whether a mis- 
description of the premises caused the insurance to 
be effected at a lower premium than would other- 
wise have been charged, the company's agent, 
through whom the policy was issued, has been al- 
lowed to give his opinion as to the rate at which he 
could have procured insurance of the premises, as 
they were, from other companies, and his knowledge 
as to the rate actually charged by other companies 
for the insurance of buildings of similar character.' 

But the mere fact that one is an insurance agent 
does not necessarily show that he is qualified to tes- 
tify as an expert concerning the nature of a risk. 
To be qualified to give testimony on that point the 
witness must have become experienced in passing 
on risks, or must have acquired special knowledge 
on the subject. A person may be an insurance 
agent without having that knowledge — ^as in the 
case of a mere soliciting agent.' 



1 Hawes v. New Eng. Mut. Ins. Co., 2 Curt. C. C. 229; Hobby v. Dana, 
17 Barb. (N. Y.) Ill ; Moses v. Delaware Ins. Co., 1 Wash. C. C. 386; 
Merriam v. Middlesex Ins. Co., 21 Pick. 162; Lace v. Dorchester Ins. 
Co., 105 Mass. 297; Planters' Mat. Ins. Co. v. Rowland, 66 Md. 236, 244. 

2 Martin y Franklin Fire Ins. Co., 42 N. J. Law, 46. 

s Stennett v. Ben. Fire Ins. Co., 68 Iowa, 674; Schmitt v. Peoria Ins. 
Co., 41 111. 206; s. c, 5 Ben. Fire Ins. Cases, 90. 



TESTIMONY OF CIVIL ENGINEERS. 251 

Where an action was brought for breach of con- 
tract, an insurance company having agreed to make 
the plaintiff its agent and allow him to remain such 
for a reasonable time, insurance agents were allowed 
to state what would be considered areasonable time. 
In answer to the objection that the question of rea- 
43onable time was one of law for the court, the court 
said : ''But the questions had reference to the busi- 
ness of insurance ; these witnesses were insurance 
agents, experts in that business ; neither court nor 
jury could understand what was a reasonable time 
in such a case, except upon proof made by compe- 
tent persons.''* 

Where an[action was brought on a policy of insur- 
ance against loss by fire on certain goods, it was 
held competent, on the question as to the value of 
the goods after the fire, to ask an expert whether 
there was any better mode of disposing of such 
goods than the one adopted by the plaintiff*.* 

§ 106. Testimony of Civil Engrineers. — Civil 
engineers are frequently called on to give expert 
testimony. The opinion of civil engineers, experi- 
enced in the construction of bridges, has been re- 
ceived as to the strength of construction and safety 
of a bridge.' A civil engineer, experienced in judg- 
ing of the soundness of timbers in bridges, has been 
allowed to express an opinion as to whether one of 
the sleepers in a bridge had rotted recently, or 
whether the decay was of some length of time.* A 
<5ivil engineer and surveyor, who had made a sur- 
vey and map of the land in question has been al- 

* Niagara Fire Ins. Co. v. Greene, 77 Ind. 590. 

* Clement v. British Am. Assur. Co., 141 Maas. 298. 
s Hart V. Hudson River Bridge Co., 84 N. Y. 5G, 60. 
^ City of Indianapolis v. Scott, 72 Ind. 196, 203. 



252 EXPP:iiT TESTIMONY. 

lowed to testify how much ground would be over- 
flowed at a given height of water/ Such witnesses 
have also been permitted to state the rules for the 
construction of cuts and embankments.' While in 
a controversy as to what constituted an approach 
to a railroad bridge, where the land adjoining the 
river bank was low and often overflowed, and the 
track was, in consequence, elevated and rip-rapped, 
and as to whether such rip-raps and dikes constitu- 
ted such an approach, the opinions of experienced 
engineers have been held admissible.' So engineers 
have been permitted to testify, judging from the 
situation of the banks, the course of the winds and 
tides, and the shifting of the sand, that a certain 
bank was not the occasion of a harbor's choking and 
filling up by stopping the back water.* And engi- 
neers who had taken the comparative levels of a 
fountain of water, and of certain agricultural drains 
in the same lot, and who had examined the inter- 
vening subsoil, have been allowed to express an 
opinion that the drains did not lessen the quantity 
of water in the fountain.^ An engineer and lands- 
cape gardener has been permitted to express an 
opinion as to what certain land was suitable for.' The 
opinion of an expert has been held admissible as to 
the liability of a city to inundation, as well as to the 
injury to a harbor by the removal of the sand along 



» Phillips V. Terry, 3 Abb.N. Y. Decis. (J07. 

2 Central R. R. Co. v. Mitchell, 63 Ga. 173; s. c, 1 Am. & Eng. R. R. 
Cases, 145. 

3 Union Pacific R. R. Co. v. (Uopper, 2 Am. & Eng. R. R. Cases, 649. 
^Folkes V. Cbadd, 3 Douglas (26 Eng. C. L. 63), 157. See also 

Grigsby v. Clear Lake Water Works Co., 40 Cal. 396. 
5 Buffum V. Harris, 5 R. I. 250. 
^ Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544, 551. 



TESTIMONY OF srUVEYOliS. 253 

the shore/ But a civil engineer is not necessarily 
an expert as to the construction of a highway." A 
civil engineer who had experience in the construc- 
tion of water-ways, has been allowed to testify as to 
the effect the erection of a mill-dam would have 
upon the channel of a stream above the dam/ 

An engineer who had experience in making plans 
and estimates for the building of bridges and had 
superintended their construction, has been allowed 
to testify as an expert with regard to the probable 
cost of a bridge, notwithstanding the fact that he 
was without practical experience as a bridge builder/ 
And an engineer who had experience in the erection 
of bridges, has been allowed to state that it was not 
customarj'^ to have gates of any kind on draw- 
bridges, but he w^as not allowed to say whether it 
was safe and proper to have draws with drop gates 
across the foot-path of a bridge when the draw was 
open, that being matter of opinion and not within 
the range of expert testimony/ An engineer of 
skill and experience, who had studied the river and 
tested its flow at the points of alleged obstruction 
and injury, when the action was for damages for 
the scouring of the water on the plaintiff's lands, 
has been permitted to answer the question: ''Are 
there any adequate causes, iji your judgment, for 
this (scouring)?"' 

§ 107. Testimony of Surveyors. — Cases in which 
surveyors have been called on to give testimony 

1 Clason V. City of Milwaukee, 30 Wis. 310. 

2 Benedict v. City of Fond du Lac. 44 Wis. 41).>. 
» Ball V. Hardesty, 38 Kan. 540. 

* Bryan v. Town of Branford, 60 Conn. 240. 

5 Hart V. H. R. Bridge Co., U N. Y. .50. See pp. 15, 16. 

« Moyer v. N. Y. Central, etc. R. R. Co., i)8 N. Y. G4.1. 



254 EXPERT TESTIMONY. 

liave frequently been before the courts. Surveyors 
may give in evidence their opinion as to the lo- 
cation of a particular survey.* A surveyor, who is 
familiar with the peculiar marks used by the govern- 
ment surveyors in their public surveys may give his 
opinion as an expert whether a particular line was 
marked by them.' The opinion of a practical sur- 
veyor has been received as to whether certain piles 
of stones and marks on trees were monuments of 
boundary.' And in a contest as to the true location 
of lines between adjacent lot owners, a practical 
surveyor, who has made an actual survey and plat 
of the lots, has been allowed to testify as to the cor- 
rectness of the plat, and to state the result of his 
survey as to the location of the lines, and of the 
buildings and fences on the lots with reference to 
such lines.* Upon a question as to the boundary 
line between two counties, which had never been 
officially located,* it has been held that while the 
opinion of a surveyor was competent evidence to 
show that certain marks on a tree, claimed as a 
corner, were corner or line marks, yet it could not be 
received for the purpose of showing that the tree was 
the corner of a particular grant.' While in an early 
case it was held that the opinion of a surveyor was 
admissible as to a mistake in a survey,' and where 
he would locate a warrant similar to that under which 
a person held,' yet the rule is that the opinion of a 

1 Jackson v. Lambert, 121 Pa. St. 182. 

« Brantly v. Swlfl, 24 Ala. 390. 

> DaviB v. Mason, 4 Pick. 156; Knox v. Clark, 123 Mass. 216. 

^ Messer v. Keginnitter, 32 Iowa, 312. 

« Klnley v. Crane, 34 Pa. St. 146. 

« Clegg V. Fields, 7 Jones (N. C.) Law, 37. 

^ Forbes y. Caruthers, 3 Yeates, 527. 

« Farr v. Swan, 2 Pa. St. 245. 



TESTIMONY OF SURVEY.ORS. 255 

surveyor is not evidence as to the construction to be 
given to a survey;* that he cannot be permitted to 
give his opinion as to what are the controlling calls 
of a deed,* the proper location of a grant/ The title 
to property claimed under a recorded plat cannot 
be unsettled by the testimony of a surveyor who 
has scaled the plat, that the scale is incorrect/ Nor 
is the opinion of an examiner of titles admissible to 
fix the location in case of conflicting and doubtful 
lines/ '^Experts cannot be called to give their 
opinions on a subject of this character. Witnesses 
are competent to show lines and measurements, but 
the construction of written instruments is for the 
court alone/'* It has been held that one who had 
been occasionally employed as a surveyor in laying 
out and grading, but not in constructing highways, 
was not competent to testify as an expert as to the 
safety of a highway/ 

A surveyor, who has testified to finding all of the 
corners pertaining to a given description of land, 
can be asked '*if he found them according to the 
government survey,'' that being a matter on which 
he is authorized to testify as an expert/ A sur- 
veyor testifying as an expert as to his location of 
a certain corner has been allowed to state whether 
or not he was satisfied that such comer was the 
, true quarter section corner,* and in testifying as to 

1 Ormaby v. Ihrnaen, 34 Pa. St. 462. 
« Whittlesey v. Kellogg, 28 Mo. 404. 

8 Schaltz v. Lindell. 30 Mo. 310; Blumenthal v. RoU, 24 Mu. 1 13 ; Ran- 
dolph V. Adama, 2 W. Va. 519. 
^Twogood V. Hoyt, 42 Mich. 809. 
<^ Pablic Schools y. Rlsley's Heirs, 40 Mo. 356. 
« Norment v. Fastnagbt, 1 McArthur, 515. 
7 Lincoln v. Inhabitants of Barre, 5 Cash. (Mass.) 590. 
^ Hockmoth v. Des Grand Champs, 71 Mich. 520. 
»Toomy y. Kay, 62 Wis. 104. 



256 EXPERT TESTIMONY. 

the form, configuration, or dimensions of land he 
may use a map or diagram to aid in making his 
testimony intelligible, and the map may be sub- 
mitted to the jury to aid them in understanding 
or remembering his testimony/ As to the right tb 
make use of maps and to submit them to the jury, 
reference is made to the cases cited below." The 
cases show that maps of a survey not made in such 
a manner as to make them admissible as evidence 
per se, may nevertheless be used by the witness to ex- 
plain and elucidate his testimony.' It is well known 
that the declarations of persons, since deceased, are 
received in evidence as to the boundaries of lands, 
where from their situation they had the means of 
knowing where the boundaries were. In a case in 
New Hampshire it was sought to extend the prin- 
ciple to the declarations made by a surveyor since 
deceased. But the court held that the principles 
on which such evidence was admitted would not 
comprehend the declarations of a deceased expert. 
It was not necessary that such declarations should 
be received, inasmuch as other experts could bo 
called whose testimony would be equally valuable.* 
The opinion that the surveyor had expressed was 
that a certain tree was not an original monument, 
because the marks on it were not old enough. 

§ 108. Testimony of Millers and Mill-wrigrlits. — 
Millers and mill-wrights are experts in relation to 
matters of technical skill in their trades. 



1 Humes v. BerDstein, 72 Ala. 546. 

* Bridges V. McClendon, 56 Ala. 327; Nolin v. Parmer, 21 Ala. 66; 
Daily v. Fountain, 35 Ala. 26; Burwell v. Sneed, 104 N. C. 118. 

» Dobson V. Whisenhant, 101 X. C. 645; State v. Whiteacre, 98 N. C. 
753; State V. Chee Gong, 17 Oreg. 635. 

* Wallace v. Goodall, 18 N. H. 439, 453. 



TESTIMONY OF MILLERS AND MILL-WRIGHTS. 257 

Persons who have for years been engaged in build- 
ing and carrying on mills are qualified to give an 
opinion touching matters connected with their ex- 
perience/ The opinions of millers and mill-wrights 
have been received as to the quantitj'^ of grain a cer- 
tain mill was capable of grinding, as to the value of 
the water for milling purposes, and as to the ac- 
curacy of the method of weighing and measuring 
adopted in the mill.* A practical and professional 
mill-wright, who had taken the levels of the water 
and the water-wheel, has been permitted to testify 
that if the mill dam was a foot lower than it was it 
would be impossible for the mill to grind in a proper 
manner.' Upon an issue as to the fitness of a shoal 
for a mill site, the opinions of mill-wrights have been 
received.* But it has been held that a witness may 
testify to the existence of a mill site without being 
an expert.* Where the identity of wheat was mate- 
rial, a miller and grower of wheat who was familiar 
with the different varieties was permitted to testify 
that when his wheat was cut early it had a peculiar 
smell; that the wheat stolen had been cut early; 
that the grain found in the possession of the defend- 
ant had the same odor as that in the hogshead 
from which the grain had been stolen; and therefore 
that his opinion was that the wheat alleged to have 
been stolen was part of the wheat originally in his 
possession.' But where the question related to the 
freezing up of a mill, the court excluded the opinion 

* Hammond v. Woodman, 41 Me. 177. 

2 Read v. Barker, 30 N. J. Law, 378; s. c, 32 lb, 477. 
» Detweiler v. Groff, 10 Pa. St. 376. 

* Haas V. Choussard, 17 Tex. 592. 

« Ciaggett V. Easterday, 42 Md. 617. 
« Walker v. State, 58 Ala. 393. 

(17) 



258 EXPERT TESTIMONY. 

of a mill-wright and a tender of mills, who had an 
experience of fourteen years, that a mill dam on 
one side of the river being some twenty rods further 
up the stream than the dam upon the other side, 
would "make it bad as regards anchor ice," and 
''that the dams being situated as they are, the 
anchor ice would naturally fall into the dead or still 
water. r The court thought that it did not appear 
that his calling gave him means not ordinarily 
possessed by other persons of forming the opinion 
expressed/ Where the question was as to the skill- 
fullness of work done on a mill, it was held that the 
opinion of a mill-wright was admissible, but not that 
of a miller.* And in an action for the rent of a mill, 
under a lease which provided that the lessor should 
put the mill in good running order, it was held com- 
petent to inquire of a mill-wright whether certain 
additions and repairs were necessary to put the mill 
in such condition.' One who for a number of years 
had been the owner of mills has been permitted to 
give his opinion as to the capacity of a person as a 
mill-wright.* A practical miller has been permitted 
to testify that a certain dam backed the water up so 
as to affect the operation of a mill situated above 
the dam in the stream.* And it has been held that 
a person who was not an expert might testify if he 
knew the fact that backwater made by the defend- 
ant diminished the power of the plaintiff's water- 
wheel.' 

A Woods V. Allen, 18 N. H. 28. 
s Walker v. Fields, 28 Ga.237. 

8 Taylor v. The French Lumbering Co., 47 Iowa, 662; Cooke v. En- 
gland, 27 Md. 14. 
^ Doster v. Brown, 26 Ga. 24. 
< Ballv. Hardesty, 38 Kan. 540. 
« Williamson v. YingUng, 80 Ind. 379. 



TESTIMONY OF MACHINISTS. 259 

^ 109. Testimony »f Machinists. — A machinist is 
an expert in matters of technical skill pertaining 
to his trade, and may give testimony as such. 
Practical experience in the observation and use of a 
machine tend to give a man that peculiar knowledge 
and special skill which qualify one to testily as an 
expert. A person who has had such experience has 
been permitted to testify that a crane or hoisting, 
apparatus was of sufficient capacity and in repair 
for the use intended.* So a machinist has been held 
competent to give an opinion as an expert, in re- 
lation to the construction of machinery.' The 
evidence of such a person has been received to show 
that a machine was not constructed in a workman- 
like manner.* So where the question involved re- 
lated to the merits of various machines, as whether 
one machine was equal in all respects to another 
machine of different make, persons having superior 
knowledge and experience with such machines have 
been permitted to express an opinion — as to whether 
a certain cotton gin was equal in all respects to the 
best saw gin then in use.* And a witness who had 
knowledge of the mechanism and working of knit- 
ting machines, and who was familiar with the oper- 
ation of a needle called the latch needle, but who 
had no experience in the use of the spring needle, 
and did not know of its operation, has been per- 
mitted to show to the jury, the facility and perfec- 
tion of operation of the latch needle to testify to its 
merits, and to express an opinion that its use could 



1 Bemig v. Central Vermont R. R. Co., 58 Vt. 636. 

'Sheldon v. Booth, 50 Iowa, 209. 

« CurtU V. Gano, 26 N. Y. 426. 

* S^attergood v. Wood, 79 N. Y. 263. 



260 EXPERT TESTIMONY. 

not be superseded by the spring needle, giving his 
reasons therefor.* It is not necessary in all cases 
that the witness should be a machinist by trade; if 
he has had practical experience in operating a partic- 
ular machine, or machines of a similar character, 
he is competent to express an opinion as to the kind 
of work such machine can perform.' Where the 
question was as to the proper mode of testing the 
strength of leathern fire hose, a manufacturer of 
steam gauges, Avho had repeatedly tested hose, was 
held competent to express an opinion, and to state 
what constituted ''a fair and satisfactory test, " sach 
as was provided for by the contract.* And where 
an issue involved the question of how much work a 
machine could do, a person acquainted with the 
machine and its construction was allowed to express 
an opinion.* One employed in a railroad machine 
shop as a master mechanic, has been permitted to 
express an opinion that a certain spark-arrester was 
the best known. '^ So machinists and brass finishers 
of large experience have been allowed to state that, 
from common observation and without close inspec- 
tion, it could not be told whether certain brass coup- 
lings were perfect or imperfect, and whether they 
w^ere of any use for the purpose for which they were 
intended.* A person who had been for years a 
mechanical engineer and a builder of machines, and 
had seen the machines in question in operation, has 
been allowed to testifv that it was not safe for the 



* James v. Hodsden, 47 Vt. 127. 

« Sheldon v. Booth, 50 Iowa, 209. 
' Chicago V. Greer, 9 Wall. 726, 733. 

* Burns V. Welch, 8 Yerg. (Tenn.) 117. 

* Great Western R. R. Co. v. Haworth, 39 Kl. 349. 
« Jupitz V. People, 34 111. 510, 521. 



TESTIMONY OF MECHANICS. 261 

operative to put the hand on the iron plate with the 
cloth traveling at the rate of a foot a second, the 
machine being made to shear the nap from the cloth 
by revolving knives, but he was not permited to 
state whether the danger of the operative's hand 
being drawn under the knives if placed on the 
cloth would be obvious to an inexperienced oper- 
ative/ The question was within the common 
knowledge of the jury. A machinist has been al- 
lowed to testify as an expert, whether the defective 
work and condition of a steam saw mill examined 
by him was due to defective construction, or to 
want of skill in the management of it." 

§ 110. Testimony of MecliaDics. — A mechanic 
may testify as an expert in matters of technical skill 
pertaining to his trade. Thus, witnesses skilled in 
wood-work have been allowed to testify that a panel 
had been cut out with a knife, and that the blade 
of defendant's knife exactly fitted the place where 
the panel had been pierced — that it had been cut 
from the outside by one skilled in the use of tools, 
and was evidently taken out by one who understood 
the construction of the door.' A mechanic has been 
permitted to testify as to the injury done to a house 
by defects in the construction of the cellar under it.* 
So where a contract for the construction of a build- 
ing stipulated that it should have a wood cornice 
with brackets, but failed to specify whether the cor- 
nice should be placed on the wall above the upper 
joist or below that point, or what width of cornice 
or length of bracket there should be, it was held com- 

1 Gilbert y. Guild, 144 Mass. 601. 

> Chandler v. Thompson, 30 Fed. R. 38. 

< State y. Baldwin, 36 Kan. 2. 

^ Monlton y. McOwen, 103 Mass. 587. 



262 EXPERT TESTIMONY. 

petent to admit the testimony of house builders and 
mechanics as to these matters, and to show by them, 
that in order to properly place a cornice of a proper 
width on the building according to contract, it was 
necessary that the walls should have been built up 
to the point they were built to, and for which the con- 
ti^actor and builder claimed extra compensation/ 
And in an action for labor and materials in erecting 
a house, the testimony of master builders who had 
examined the building and made an estimate of the 
cost, has been held admissible for the purpose of as- 
certaining the amount of the damages.* Prac- 
tical mechanics, who showed themselves fully 
acquainted with the custom as to measuring, have 
been allowed to testify as to the measurement of 
masonry,* and as to the proper mode of measuring 
the angles of an octagonal cellar.* The opinion of 
one having a long and thorough acquaintance with 
the construction of berths on steamboats, has been 
received as to whether the berths on a certain steam- 
boat were constructed in the manner usual upon the 
best boats built at the time of its construction.* 
When an application for insurance contained a war- 
ranty that the buildings insured were brick, and in 
an action on the warranty it was contended that the 
buildings were partly brick and partly wood, it was 
held that an experienced builder might be asked 
whether such buildings would be properly denom- 
inated *' brick'' buildings.' Builders and contract- 

i Haver v. Teoney, 36 Iowa, 80. 
s TebbettB v. Haskins, 16 Me. 283. 
3 Shulte V. Hennessey, 40 Iowa, 352. 

* Ford V. Tirrell, 9 Gray (Mass.), 401. 

« Tinney v. N. J. Steamboat Co., 12 Abb. Pr. (N. S.) 1. 

• Mead v. Northwestern Ins. Co., 3 Selden (N. Y.), 630; s. c, 3 Ben- 
nett's Fire Ins. Co. Cas. 483. 



TESTIMONY OF FARMERS AND GARDENERS. 263 

ors have been held equally competent with archi- 
tects, to show that the employment of an architect 
to make plans and designs for a building, carried 
with it an employment to superintend its construc- 
tion/ 

A cabinet maker of more than eight years' expe- 
rience, and who performed part of the work in ques- 
tion has been allowed to answer as to whether the 
work was a good job, and whether it was well done.' 

§ 111. Testimony of Masons. — A mason is an ex- 
pert in matters of technical skill pertaining to his 
trade, and is allowed to testify as such. Thus, a 
practical brick mason, who had aided in the con- 
struction of the plaintiffs wall, has been allowed to 
express an opinion as an expert, as to whether the 
quantity of rain which fell on the premises within 
the wall was sufficient to wash it down.' So the opin- 
ions of masons have been received as to the length 
of time required to dry the walls of a house so as to 
make it fit for habitation.* But it has been held 
that the efiect of water in disintegrating the mortar 
of a wall is not a matter of science, and that other 
persons than masons, who have had an occasion to 
observe it, are competent to express an opinion con- 
cerning it."^ And experts have been allowed to state 
how much sand was used with a cask of lime in 
making certain mortar.' 

$112. Testimony of Farmers and Gardeners. — 
The opinions of farmers and gardeners are received 

1 Wilson V. Bauman, 80 Ul. 493. 
« Ward V. Kilpatrick, 85 N. Y. 413. 
' Montgomery y. GUmer, 33 Ala. 116. 

• Smith V. Gugerty, 4 Barb. (NT. Y.) 619. 

• Underwood v. Waldron, 33 Mich. 232. 

• MiUer y. Shay, 142 Mass. 598. 



264 EXPERT TESTIMONY. 

in evidence on matters peculiarly within the knowl* 
edge of persons following their occupation. Thus, 
a witness who had used guano on all kinds of gar- 
den and field plants and crops, and who had closely 
and critically watched itseflfects, has been held com- 
petent to testify as to the proper method of using such 
fertilizers, and as to what would prevent them from 
acting beneficially.* A gardener and a farmer, who 
had attended to and practiced the draining of lands 
for the purpose of making them productive, have 
been held competent to give to their opinion as 
experts, whether a certain piece of land, examined by 
and known to them, required draining to put it in 
condition for cropping.' The opinion of a gardener 
has been received as to the damage done to a gar- 
den and nursery by the smoke from a brick kiln.* 
The opinion of a farmer that a wagon loaded with 
hay in a certain manner was not safe to ride upon 
over ordinary roads, has been held inadmissible* 
The jury were competent to determine the question 
from the facts stated.* But the opinions of farmers 
have been received as to how many bushels of com 
there would have been on certain land on which 
cattle had trespassed, had it not been for such tres- 
pass.* So it has been held that a farmer could be 
asked, *' taking that hay as it stood then, what would 
it yield to the acre?" *' A person," said the court, 
'* conversant with the growth of grass, and accus- 
tomed to compare its appearance in different stages 



1 Young V. O'Neal, 57 Ala. 666. 

* Buffum V. Harris, 5 R. I. 250. And see pp. 15, 16. 
» Vandine v. Burpee, 13 Met. (Mass.) 288. 

* Bills V. City of Ottawa, 35 Iowa, 109. 

« Sickles V. Gould, 51 How. Pr. (N. Y.) 25; Seamans v. Smith, 46 Barb. 
(N. Y.^ 320; Keith v. TiUord, 12 Neb. 271, 275. 



TESTIMONY OF FARMERS AND GARDENERS. 265- 

of such growth with its ultimate yield to the acre, 
may well be said to have such knowledge of that 
subject as to make him competent to testify how 
much, in his opinion, a given piece examined by 
him, will yield per acre. ♦ ♦ ♦ The principle 
is the same as that on which the opinion of an ex- 
pert is received. The farmer, acquainted with the 
subject-matter of such an inquiry as this under con- 
sideration is an expert, and unless the witness has 
the peculiar knowledge which constitutes him an 
expert his opinions would be excluded.'" Farmers 
and dairymen have been held competent to express 
an opinion as to the adulteration of milk.' A farmer 
experienced in clearing up land has been allowed in 
New York to testify whether a fire was set on land 
at a proper time.' But in Vermont the court haa 
held that the opinions of farmers who saw the fire 
set, and testified to its position, and to the force and 
direction of the wind, were inadmissible on the ques- 
tion whether the day on which the fire was set was 
a suitable and safe day.* It has been held in Min- 
nesota that the opinion of a farmer experienced in 
clearing land was admissible, where the question 
was as to how many feet in width it would be nec- 
essary to plow to stop a fire on stubble land.** It 
has been held in Massachusetts that the opinion of 
a farmer was inadmissible on the question whether 
there was a liability that a fire set under certain 
circumstances would have spread to adjoining land.*^ 

1 PhUlips V. Terry, 3 Abb. N. Y. Deds. 607, 609. 
« Lane v. Wilcox, 55 Barb. (N. Y.) 615. 

8 Ferguson v. Hubbell, 26 Hun (N. Y.), 250. And also see Wells v. 
Eastman, 61 N. H. 507. 

* Fraser v. Tnpper, 29 Vt. 409. 

* Kipner y. Biehl, 28 Minn. 139. 

* Higglns V. Dewey, 107 Mass. 494. 



266 EXPERT TESTIMONY. 

One who had experience as an overseer of a planta- 
tion for some five or six years, has been held quali- 
fied as an expert to express an opinion that the over- 
seer of another plantation had ''managed pretty 
well."* And one who had served as overseer of a 
plantation for sixteen months, has been held com- 
petent to testify as to the amount of food which 
was sufficient for a plantation slave.* 

The opinion of a farmer is admissible as to the 
quality of the soil of a farm,' and as to whether a 
cow was diseased.* Farmers, who for a number of 
years had the care, training and common use of 
horses, have been allowed without objection to state 
that from their own knowledge of horses, a horse 
which had been frightened and had run, and had 
not run again for a period of more than a year and 
a half, was not any more likely to run than if he 
had not run before.' While no objection was raised 
as to the qualifications of the witness in the above 
case, it was objected that the question was not one 
of skill, science, or peculiar knowledge, but the 
court ruled that it was not a matter of common 
knowledge, and that the testimony was properly re- 
ceived. 

A farmer who raises horses for the market has been 
held competent to testify as to the value of a thor- 
oughbred stallion of which he had knowledge.* 

§ 113. Testimony of Cattlemen. — We have seen in 
preceding section that the opinions of farmers have 

1 Spiva V. Stapleton, 38 Ala. 171. 
s Cheek v. State, 38 Ala. 227. 
^ Sarle v. Arnold, 7 R. I. 582. 

* Slater v. WUcox, 67 Barb. (N. Y.) 604. See chapter VHI. 
^ DonneUy v. Fitch, 136 Mass. 558. 
Gere v. Council Bluffs Ins. Co., 67 Iowa, 272. 



TESTIMONY OF CATTLEMEN. 267 

been received on questions relating to horses and cat- 
tle. It remains to consider like cases in which the 
opinions of cattlemen have been received in evidence. 
The opinions of men engaged in raising stock, and 
accustomed to riding through the same range in quest 
of stock, have been received as to the number of stock 
of a particular brand running in the range.* And in a 
recent case in Texas it was held that an expert could 
testify as to the topography of the countrj'', the num- 
ber of cattle frequenting it, and whether they were 
wild or gentle, but that he could not testify as to the 
length of time which would be required to gather a 
certain number of cattle within the limits of a given 
range.* The opinions of experienced graziers have 
been received as to the condition of cattle, aiid as 
to the causes which affect their health and weight.' 
Persons experienced in weighing cattle are permitted 
to express an opinion as to the weight of cattle.* A 
stock raiser has been allowed to testify as to the 
damage done to cattle by falling through a wharf.' 
A shepherd has been permitted to give an opinion 
as to the age of a sheep, judging from its teeth,* and 
so in respect to the age of a horse, or other animal, 
experienced persons will be permitted to express an 
opinion as to his age, from an examination of his 
mouth and the observation of other signs. ^ A cat- 
tle driver has been allowed to answer the question, 
^* How many hands would be necessary to drive two 

1 Albright t. Corley, 40 Tex. 105. 

* Tyler v. State, 11 Tex. Ct. of App. 388. 

s Baltimore, etc. R. R. Co. y. Thompson, 10 Md. 76. 

* McCormic v. Hamilton, 23 Gratt. (Va.) 661 ; Carpenter v. Walt, 11 . 
Oash. (Mass.) 257; Filley v. Billings, 42 N. W.Rep. 713. 

» Polk V. Coffin, 9 Cal. 56. 

* Clague y. Hodgson, 16 Minn. 329. 

7 See Moreland y. Mitchell County, 40 Iowa, 401. 



268 * EXPERT TESTIMONY. 

hundred mules, supposing they were broke mules 
and driven under the circumstances detailed by the 
witnesses in this case?'" 

When the question was as to the overloading a 
car-load of hogs, a witness who had been in the 
habit of shipping hogs in cars for many years, was 
allowed to state that hogs of the number and weight 
of those in controversy could not be safely shipped 
in one car in hot weather.* 

^ 114. Testimony of Painters and Photogrraphers* 
— The opinion of an artist in painting i^ competent 
evidence as to the genuineness of a painting.' An 
ambrotypist and daguerreotypist has been held com- 
petent to express an opinion as to whether photo- 
graphs were well executed.* And an expert in pho- 
tography has been allowed to testify, from what he 
knew and saw of a photograph printer's work and 
capacity, how many photographic pictures such per- 
son could paint in the course of a month.* In the 
same case it was announced, that although experts 
might be alone competent to testify whether a pho- 
tograph was well executed, yet it required no special 
skill in a knowledge of the photographic art to de- 
termine whether the picture resembled the original, 
and any person for whom the picture was taken 
could testify that it was a good likeness. 

§ 115. Testimony of Ijambermen. — One employed 
in getting out logs has been permitted to testify as 
an expert, whether a person with the force of men 
he had employed could have continued to deliver a 

1 North Missouri R. R. Co. Akers, 4 Kan. 453. 

« Wabash, etc. R. R. Co., v. Pratt, 15 Bradw. (HI.) 177. 

« Folkes V. Chadd. 4 Dougl. 157. 

« Barnes v. Ingalls, 39 Ala. 193. 

Barnes v. logalls, 39 Ala. 193. 



TESTIMONY OF LUMBERMEN. 269 

certain amount of logs per day/ One who had expe- 
rience in floating logs in a certain stream has been 
allowed to express an opinion as to the proper man- 
ner of floating logs through a dam and flume. *The 
running of the logs in that stream, and through that 
bulk-head, was not a matter of common knowledge, 
nor of adequate common judgment upon the facts 
shown by the other evidence. The experience and 
observation of the plaintiff* gave him the grounds 
and faculty of an opinion peculiar to himself, and 
not common to men who had no such experience or 
observation. In a substantial sense he may be re- 
garded as an expert having peculiar knowledge and 
skill, which renders his opinion worthy of consider- 
ation as the ground of judgment and opinion in 
others who have not such knowledge and skill.'" 
The opinion of a lumber dealer has been received 
as to the quality of certain lumber.' And one en- 
gaged in lumbering has been permitted to state 
whether a raft was properly moored.* Where the 
question was whether certain lumber had been neg- 
ligently piled, it was decided that one experienced 
in such work could not testify how he would have 
piled it in a certain case, nor how, in his opinion, 
'it might have been piled. The piling of lumber 
was not thought, in any proper sense, to involve the 
•exercise of technical knowledge or skill.* A person 
-experienced in the sawing of lumber has been per- 
mitted to testify that at the time of an accident the 



1 Salvo V. Duncan, 49 Wis. 157. 

« Dean v. McLean, 48 Vt. 412. 

^ Moore v. Lea's Admr., 32 Ala. 375. See pp. 15, 16. 

* Hayward v. Knapp, 23 Minn. 430. 

* Baldwin v. St. Louis, etc. R. R. Co., 68 Iowa, 37. 



270 EXPERT TESTIMONY. 

log being sawed did not pinch the saws, and that 
the machinery was being operated in the usual man- 
ner/ 

$ 116. Testimony of Experts in Patent, Trade- 
Mark and OopyrifiTiit Oases. — In actions for the in- 
fringement of patent rights, the testimony of ex- 
perts is admissible for the purpose of explaining the 
drawings, models and machines exhibited, as well 
as for the purpose of explaining their operation, and 
pointing out the resemblance or difference in the 
mechanical devices involved in their construction.' 
But the court cannot be compelled to receive the 
evidence of experts as to how a patent ought to 
be construed, and whether it has been violated.* 
Neither will an expert be allowed to testify that, 
from investigations made by him in scientific works, 
he has ascertained that an invention patented long 
before, was well known prior to the application for 
letters patent thereon. '*The question,'' said the 
court, *' proposed to the defendant, as an expert, 
sought to establish an historical fact, under the guise 
of a scientific opinion. It was properly excluded."* 
In actions for the infringement of trade-marks, 
the probability of deception is generally shown by 
resemblance and by the opinions of experts.* And 
in the case of an alleged violation of a copyright, it 
has been held that experts could testify, and state 
the results of comparisons made by them of the notes 
and citations of authorities contained in the two law 

^ Sanborn v. Madeira Flume and Trading Co., 70 Cal. 261. 

3 Abbott's Trial Ev. 760; Corning v. Burden, 12 How. 252; Hudson v. 
Draper, 5 Fisher Pat. Cas. 256, 259; s. c, 4 Clifford, 181; Cahoon v. 
Ring, 1 Clifford, 692; Winans v. N. Y. & Erie R. R. Co., 21 How. 88. 

8 Waterbury Brass Co. v. N. Y., etc. Co., 3 Fisher Pat. Cas. 43, 54. 

* McMahon v. Tyng, 14 Allen, 167. 

« Abbott's Trial Ev. 752. 



TESTIMONY OP BUSINESS MEN AS TO USAGE. 271 

books in question, together with their opinions as to 
whether the several notes and citations were of the 
same character/ 

^ 117. Testimony of Business Men as to Usasre. — 

On a question of usage in a particular trade or busi- 
ness, the opinions of persons experienced therein 
will be received in evidence.' ''Usage is proved," 
says the court in Massachusetts, ''by witnesses tes- 
tifying of its existence and uniformity from their 
knowledge, obtained by observation of what is prac- 
ticed by themselves and others in the trade to which 
it relates. But their conclusions or inferences as to 
its effect, either upon the contract or the legal title, 
or rights of parties, are not competent to show the 
character or force of the usage. ' " That the opinions 
of experts, in a particular business as to the existence 
of a usage in that particular business, are inadmissi- 
ble when the effect w'ould be to contradict the ex- 
press terms of the contract, is well settled upon the 
authorities.* Neither can such evidence be received 

^ Lawrence v. Dana, 4 Clifford, 1, 72. 

> Wilson V. Baaman, 80 ill. 494; Kerahaw v. Wright, 115 Masi?. 3GI ; 
The City of Washington, 92 U. S. 31. 

' Haakins v. Warren, 115 Mass. 514, 535. And see Barnes v. Ingalls, 
39 Ala. 193. 

^ Malcolmson v. Morton, 11 Irish Law R. 230 (Q. B.) ; Peters v. 
Slavely, 15 L. T. (N. S.) 151; Beading v. Menham, 1 Moo. & R. 234; 
Savings BaDk v. Ward, 100 U. S. 195, 206; Partridge y. Insurance Co., 
15 Wall. 375; Thompson v. Riggs, 5 Wall. 663, 679; Snelling v. Hall, 107 
Mass. 184; Brown v. Foster, 113 Mass. 136; Dickinson v. Gay, 7 Allen 
(Mass.), 29, 31; Randall v. Rotch, 12 Pick. (Mass.) 107; Barlow v. Lam- 
bert, 28 Ala. 704; Polhemusy. Heinman, 50 Cal. 438; Bank of Commerce 
V. Bissell, 72 N. Y. 615; CoUender v. Dinsmore, 55 N. Y. 200; Frith v. 
Barker, 2 Johns. (N. Y.) 334 Corbett v. Underwood, 83 ni.324; Wilson 
V. Bauman, 80 111. 493 ; Dixon v. Dunham, 14 lU. 324 ; Stultz v. Locke, 47 . 
-Md. 562, 568; Bodfish v. Fox, 23 Me. 90; Exchange Bank v. Coleman, 
1 W. Va. 69; Randolph v. Holden, 44 Iowa, 327; Erwin v. Clark, 13 
Mich. 10, 18; Bedford v. Flowers, 7 Humph. (Tenn.) 232; Atwater v. 
Clancy, 107 Mass. 369. 



ii72 EXPERT TESTIMONY. 

when it would result in violating a positive require- 
ment of law, or some principle of public policy.' It 
is not to be supposed, however, that a custom or 
usage cannot be shown in any case, if it is simply 
different in its effect from some general principle of 
law. To have this effect, it must conflict with some 
rule of public policy, or be unjust and oppressive in 
its character.* " 

It is held that a witness is competent to testify as 
to usage whose only knowledge of it is derived from 
his own business, if that has been sufficiently ex- 
tensive and long continued.' The testimony of 
those engaged in a particular business, that they 
never heard of such a usage, is admissible.* On the 
issue whether an alleged commercial usage exists, a 
witness may be asked to describe how, under the 
usages in force, a transaction like the one in question 
would be conducted by all the parties thereto, from 
its inception to its conclusion.* It has been held in 
England that a London stock broker is a competent 
witness as to the course of business of London 
hankers.^ And it is to be observed that a person 
may be competent to testify as to the usage which 
prevails in a certain business, without himself being 

1 Barlow V. Lambert,28 Ala. 704, 710 ; Aatoraarcbi v. Russell ,63 Ala. 356 ; 
Wilson V. Bauman, 80 Ul. 493, 495; Bissell v. Ryan, 23 ni. 570; Homer 
V. Dorr, 10 Mass. 26; Reed v. Richardson, 98 Mass. 216; Lockbart ▼. 
Dewees, 1 Tex. 535; Jackson y. Beling, 22 La. Ann. 377; Barnard v. 
Kellogg, 10 Wall. 383; Brown v. Jackson, 2 Wash. C. C. 24; South- 
western Freight, etc. Co. v. Standard, 44 Mo. 71 ; Raisin v. Clark, 41 Md: 
158; Minnesota Central R. R. Co. v. Morgan, 52 Barb. (N. Y.) 217, 221 ; 
Inglebrigbt v. Hammond, 19 Otilo, 337. 

* See Lawson on Usages and Castoms, Chapter V, §§ 225, 248. 
s Hamilton v. Nlckerson, 13 Allen (Mass.), 351. 

* EvansvUle, etc. R. R. Co. v. Young, 28 Ind. 516. 
« Kirshaw v. Wright, 115 Mass. 361. 

« Adams v. Peters, 2 Car. & Kir. (61 E. C. L. ) 722. 



TECHNICAL TERMS AND UNUSUAL WORDS. 27 J] 

engaged in that business. So that when the ques- 
tion .was as to the custom of the New York banks in 
paying the checks of dealers, it was held proper to 
call as witnesses persons who were not employed in 
banks. ''Although not employed in banking busi- 
ness, the witnesses were dealers with the banks, and 
had knowledge of the ordinary course of dealing 
with them. There is no necessity for showing a 
man to be an expert in banking in order to prove a 
usage. He should know w^hat the usage is, and 
then he is competent to testify whether he be a 
banker, or employed in a bank, or a dealer with 
banks. There is no reason why a dealer should not 
have as much knowledge on such a subject as a per- 
son employed in a bank."* 

^ 118. Testimouy as to Technical Terms and Ud- 
usuai Words. — It is laid down as clearly within the 
province of the court to define technical words to 
the jury.* The courts take judicial notice of the 
meaning of words and idioms in the vernacular of 
the language.' And where foreign words have been 
so far Anglicized by common use as to have become 
substantially a part of our language, it is within the 
province of the court to define them to the jury.* 
Instances of such words are '^habeas corpus,'' ^^bona 
fide, ' ' * ^prima facie, ' ' ^^a fortiori, ' ' * ^flagrante delicto. ' ' 
The general rule undoubtedly is that the meaning 
of an English word, not a technical term, cannot be 



1 Griffin V. Rice, 1 Hilton (N. Y.), 184. 

* Tliompson'sOiiarging the Jury, § 18. 

* Greenl. Evidence, § 5. 

* Townshend on Slander & Libel, 160, note 2 ; Homer v. Taunton, 5 B. 
& N. 661, 667; Barnett v. Allen, 3 H. & N. 376; Hoare v. Sllverlock, 12 
Ad. & £1. (S. S.) 624; Gibson v. Cincinnati Enquirer, 5 Cent. L. J. 380 
(U. S. Circuit Ct., Southern District of Ohio). 

(18) 



274 EXPERT TESTIMONY. 

made known to the jury by an examination of wit- 
nesses. It has, therefore, been held error in an 
action for libel to allow a physician to testify as to 
the meaning of the word '* malpractice."* But this 
rule does not apply ** where a known English word 
or phrase has acquired a local meaning different 
from its ordinary acceptation, nor where it has ac- 
quired a peculiar meaning in a particular science, 
art or trade, or among a particular sect, and where 
it seems to have been used in such local or peculiar 
sense.''* Hence, it may be laid down that when a 
new or unusual word is used in a contract, or when 
a word is used in a technical or peculiar sense, as ap- 
plicable to any trade or business, or to any partic- 
ular class of people, it is proper to receive the testi- 
mony of witnesses having special knowledge of such 
words as to the meaning attached to them.' The 
rule has been well stated by the Supreme Court of 
Massachusetts in the following language: *'The 
general rule of law is, that the construction of ever)'' 
written instrument is matter of law, and, as a neces- 



I Rodgers v. Kline, 56 Miss. 818. See, too, Haley v. State, 63 Ala. 89; 
Campbell v. Russell, 9 Iowa, 337. 

* Rodgers v. Klioe, supra, 

« Eaton V, Smith, 20 Pick. (Mass.) 156; Daniels v. Hudson River Fire 
Ins. Co., 12 0u8b. (Mass.) 416, 429; Collender v. Dinsmore, 55 N. T. 
200; Sturm v. Williams, 38 N, Y. Superior Ct. 325; Hearn v. Xew En- 
gland Mutual Ins. Co., 3 Clifford C. C. 318; Prather y. Ross, 17 Ind.495; 
Silverthome V. Fowle, 4 Jones (N. C.) Law, 362; James v. BosCwick, 
Wright (Ohio), 142; Harris v. Rathbuo, 2 Abbott (Ct. of App. Decis.), 
328; Williams v.Poppleton, 3 Oreg. 139; Pollen v. Le Roy, 10 Bos. 
(N.Y.) 38; First Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 
153, 155; Reynolds v. Jourdan, 5 Cal. 108; Reamer v. Nesmitb, 31 Cal. 
627; Callahan v. Stanley, 57 Cal. 479; Evans v. Commercial Ins. Co., 6 
R. I. 47; Burnham y. Boston Marine Ins. Co., 139 Mass. 399; Beason v. 
Kurz, 66 Wis. 448; Long v. Davidson, 101 N. C. 175; Newhall v. Apple- 
ton, 114 N. Y. 140; Smith v. Clews, 114 N. Y. 190; Nelson v. Sun Mut. 
Ins. Co., 71 N.Y. 453. 



TECHNICAL TERMS AND UNUSUAL WORDS. 275 

sary consequence, that courts must, in the first in- 
stance, judge of the meaning, force and effect of lan- 
guage. The meaning of words, and the grammat- 
ical construction of the English language, so far as 
they are established by the rules and usages of the 
language, are, prima facie, matter of law, to be con- 
strued and passed upon by the court. But language 
may be ambiguous, and used in different senses; or 
general words, in particular trades and branches of 
business — as among merchants, for instance — may 
be used in a new, peculiar or technical sense; and, 
therefore, in a few instances, evidence may be re- 
ceived from those who are conversant with such 
branches of business, and such technical or peculiar 
use of language to explain or to illustrate it.''* In 
that case the court held that the testimony of ex- 
perienced persons could not be received to show 
that stones of a considerable size were universally 
known as, and called gravel. 

A gas-fitter has been permitted to testify whether 
gas-meters were usually classified as gas-fixtures, in 
an action for the price of gas meters alleged to have 
been furnished to fulfill a contract for gas-fixtures.' 
The opinion of one engaged in the oil business has 
been received, to show that in a contract for the 
sale of a certain number of * 'barrels" of petroleum 
oil, the word * 'barrel'' meant a vesselof a certain 
capacity, and not the statute measure of quanity.' 
So the opinion of an expert has been received to show 
that the meaning of the term ''horn chains," used 
in a contract, meant chains made of hoof and horn;* 

1 Brown v. Brown, 10 Met. 573. 

'Downs V. Sprague, 1 Abbott's Ct. of App. Decis. (N. Y.) 550. 

s Miller v. Stevens, 100 Mass. 518. 

* Sweet V. Shumway, 102 Mass. 365. 



276 EXPERT TESTIMONY. 

and the term ''port risk," as used by underwriters 
in policies of marine insurance, had a special signi- 
fication/ Agents for insurance companies have 
been allowed to testify whether the words ''short 
rates,'' as used in policies, include all the expenses 
of taking the risk.* Where a contract was for the 
sale of ''one hundred and fifty casks of one ton each, 
best madder, 12 1-4/' dealers in madder were al- 
lowed to testify that the figures as used in the con- 
tract, meant 12 1-4 cents per pound.' The opinions 
of stock brokers have been received to explain the 
meaning among brokers and dealers in stock of the 
words, "settled at the market 72 3-4."* And the 
opinion of iron merchants has been received as to 
what was meant by "No. 1 Shott's Scotch pig iron."* 
Persons engaged in the construction and operation 
of mills and factories run by water, and acquainted 
with the application of water to machinery, have 
been permitted to testify as to the technical meaning 
of the term ' 'race-way. ' " And experts may be called 
to decipher abbreviated and elliptical entries in the 
book of a deceased notary.' 

^ 119. Translation by Experts of Writinsrs from a 
Foreiflrn liansruasre. — The rule is that when an in- 
strument is written in a foreign language one 
skilled in such language is to be called to 
translate it.^ But it is not competent for a 

1 Nelaon v. Sun Mutual Ins. Co., 71 N. Y. 453. 

* Burlington Ins. Co. v. Leod, 40 Kan. 54. 
a Dana v. Fiedler, 12 N. Y. 40. 

* Storey v. Salomon, 6 Daly (N. Y.), 532. 
« Pope V. Filley, 9 Fed. Rep.S5, 69. 

« Wilder v. Decou, 26 Minn. 10. 

7 Sheldon v. Benham, 4HU1, 129. 

8 Di Sora v. Phillips, 10 H. L. Cas. 624; Stearine v. Hentzman, 17 C. 
B. (N.S.) 56; Sheldon v. Benham, 4 HiU, 129; Geylin v. Villeroi, 2 
Houston (Del.), 311. 



OPINIONS OF EXPERTS IN MISCELLANEOUS CASES. 277 

witness called to translate such a writing to give 
any opinion as to its construction, that being a 
question for the court/ 

If the court, however, should undertake to trans- 
late a writing without the aid of experts, and should 
translate it correctly, it is probable that a new trial 
could not be obtained. In one of the cases we find 
the following upon this point: ''Indeed, if the 
whole libel had been published in a foreign language, 
and the court had assumed to translate and define 
its meaning to the jury without the aid of experts, 
it is difficult to see how this error could be made 
the ground for a new trial. It is only error that 
prejudices, which justifies setting aside the verdict; 
and if that translation is in fact correct, it is 
difficult to see wherein the prejudicial error lies.'** 

^ 120. Opinions of Experts in Miscellaneous 
Cases. — From what has been stated it appears that 
the opinions of persons skilled in any trade or call- 
ing are experts as to matters of technical skill relat- 
ing to their trade or calling, and their testimony ma}^ 
be received as such in evidence. In the preceding sec- 
tions of this chapter, attention has been called to the 
application which has been made of this principle 
in respect to certain trades, but the principle is 
equally applicable in all trades and callings when 
the question at issue is technical and not within the 
common experience of men in general. Thus, the 

1 A Belgian CQnsel was calleil.to jtcanelate the following : *^Le8 infor- 
mations sur Gustave Sichel sont telles que nousne poavons lui llvrer lea 
2600 calBses que contre connaisement. Si vons voulez, nonsTOOs enver- 
rons les connaisements, et vous ne les lai de livrerez que contre pay- 
ment.^' He was asked to what the article ^*le8^' referred, and said it 
was applicable to the ^^connaisements.^^ This was held to be error. 
Stearlne v. Hentzman, supra. 

« Gibson v. GindnnaH Enquirer (V. S. Cir. Ct.), 5 Cent. L. J. 380. 



278 EXPERT TESTIMONY. 

opinion of an ethnologist has been received upon 
the question of race/ the opinions of persons having 
a peculiar and special knowledge of iron, upon the 
question of the quality and strength of iron, the 
breaking of which caused an accident;' the opinion 
of a paver as to the number of bricks laid in a pave- 
ment, ascertained from a computation by the square 
yard according to usage of the craft, without reckon- 
ing them by tale;' the opinions of witnesses having 
knowledge of the geological structure and formation 
of the neighborhood, as to the existence of coal 
seams, and of the quality and quantity on the lands 
in question;* the opinion of a blacksmith as to 
whether the shoes of a horse were fit for use;' of per- 
sons engaged in the wool trade, as to the liability of 
wool waste to ignite spontaneously;' the opinion of a 
practical miner as to the safety of a particular blast- 
ing powder which he had used.' So one employed in 
manufacturing explosive compounds, and who had 
made blasts in all kinds of rocks and stones, in every 
kind of blasting, has been held qualified ^'as a most 
competent expert, ' ' to state whether portions of a 
rock could have been thrown 280 feet from the point 
of discharge, the blast being exploded in the excava- 
tion of a sewer.* The opinions of experienced per- 



1 White V. Clemeas, 39 Ga. 232; Nave's Admr. v. WiUiams, 22 Ind. 
368; State v. Jacobs, 6 Jones (N. C.) Law, 284. 

> Olaxton's Admr. v. Lexington, etc. R. K. Co., 13 Bush (Ky.), 636; 
King V. New York Central, etc. R. R. Co., 72 N. Y. 607; Pope v. FiUey, 
9 Fed. Rep. 65, 66. 

'Mayor, etc. v. O'Neill, 1 Pa. St. 342. 

^Stambaugh v. Smith, 23 Ohio St. 584, 594. 

« Evarts V. Middlebury, 53 Vt. 626. 

• Whitney v. Chicago & N. W. R. R. Co., 27 Wis. 327. 

^ Snowden v. Idaho Quartz Manuf. Co., 55 Cal. 450. 

» Koster v. Noonan, 8 Daly (N. Y.), 232. 



OPINIONS OF EXPERTS IN MISCELLANEOUS CASES. 279 

sons have been received as to whether two pieces of 
wood were parts of the same stick of natural growth. ' 
And it has been held that an expert may be asked 
what the condition of a water-pipe, as described by 
another witness, indicated as to the original con- 
struction of the joint.* %. well-digger, who from the 
exercise of his business in the vicinity has become 
acquainted with the character of the soil and sub- 
soil, has been allowed to testify to his opinion, 
whether a given thickness of subsoil, if undisturbed, 
was impervious to water.* A witness who had been 
engaged for years in measuring and selling water to 
miners, was held sufficiently qualified to give his 
opinion as to the eflfect which a dam across a stream 
would have in raising the water in the channel 
above.* When the question was as to the cause of 
the settling and cracking of the surface of the earth, 
the opinions of experts were received, they having 
examined the premises, and being qualified by learn- 
ing, observation and experience to form an intelli- 
gent judgment in the matter.' 

The opinion of an expert has been received as to 
the quantity of stone furnished for a water- works 
reservoir, where the average amount could only be 
estimated approximately.' The testimony of 
experts has been received as to whetherit is possible 
to examine all the layers in a case of old tobacco 
without injuring the tobacco, and as to what is the 
proper method of examining such a case for the pur- 

1 Commonwealth v. Choate, 105 Mass. 451. 

s Hand v. Brooklme, 126 Mass. 324. 

> Baffam v. Harris, 5 R. I. 250. 

* Blood V. Light, 31 Cal. 115. 

« Clark V. Willett, 35 Cal. 634, 544. 

Eyerman v. Sheehan, 52 Mo. 221 . 



280 EXPERT TESTIMONY. 

pose of determining the kind and quality of the 
tobacco.^ Experts have been allowed to testify that 
a certain quality of steel was not considered suitable 
for the manufacture of steel rails.* One who had 
made and sold raili'oad ties has been held compe- 
tent to testify as to the qua§ty of certain ties.' And 
in general skilled witnesses are allowed to testify as 
to the quality of goods.* The testimony of a tailor 
has been received as to whether a pocket-book could 
have been taken out through a cut made by a pick- 
pocket in a coat, it appearing that the coat had been 
mended subsequently to his examination of it.' The 
genuineness of a postmark may be shown by the 
testimony of a postmaster/ and perhaps by the testi- 
mony of any one who has been in the habit of re- 
ceiving letters with that mark.' An expert has 
been permitted to express an opinion as to the con- 
tents of a tree from the size of its stump."* 

Where books and schedules of the assets and debts 
of a party are put in evidence, an accountant has 
been allowed to give the results of computations 
therefrom.' Witnesses who stated that they were 
accustomed to handling and driving horses, and 
knew their habits, have been allowed to express an 
opinion that certain obstructions on a bridge were 
of such a character as would be likely to frighten 



1 Atwater v. Clancy, 107 Mass. 369. 

« Booth V. Cleveland Mill Co., 74 N. Y. 27. ' 

8 Jeffersonville R. R. Co. v. Lanham, 27 Ind. 171 . 

4 Myers v. Marphy, 60 Ind. 282; Brown v. Leach, 107 Mass. 364. 

^ PeofUe y. Morrigan, 29 Mich. 5. 

« Abbey v. Lill, 6 Bing. 299, 304. 

7 Woodcock V. Houldsworth, 16 M. & W.124. 

^Frantz v. Ireland, 66 Barb. 386. 

> Jordan v. Osgood, 109 Mass. 457. 



OPINIONS OFEXPERTS IN MISCELLANEOUS CASES. 281 

horses of ordinary gentleness. "The nature, habits, 
and peculiarities of horses," said the court, ^'arenot 
known to all men. Persons who are in the habit of 
handling and driving horses, from this experience, 
learn their habits, nature, etc., and are, therefore, 
better able to state the probable conduct of a horse 
under a given state of circumstances, in which they 
have in their experience witnessed their conduct un- 
der similar circumstances, than persons having no 
experience whatever with horses."* 

The opinions of persons accustomed to witness 
the agility and power of certain fish, in overcoming 
obstructions in the ascent of rivers, and who have 
acquired superior knowledge upon that subject, have 
been held admissible for the purpose of showing 
that a certain stream, in its natural state, would or 
would not be ascendible by such fish. 'The wit- 
nesses had acquired from observation, superior 
knowledge upon this subject. It appears to us to 
fall within that class of cases in which the opinions 
of persons skilled in any art, science, trade or busi- 
ness are received."' A brick and tile maker, hav- 
ing had some years' experience in his trade, has been 
held competent to give an opinion as an expert on 
the proper mode of burning tiles, and as to what 
would be the effect of burning in one way or an- 
other.* An architect has been permitted to testify 
that the work done on a building was performed in 
compliance with the contract.* One who had been 



1 Moreland V. Mitchell County, 40 Iowa, 401. 
s Cottrill y. Myrick, 12 Me. 22*2, 231. 
' Wiggins V. Wallace, 19 Barb. (N. Y.) 338. 
< Tncker v. WUliams, 2 miton (S. Y.) 562. 



282 EXPERT TESTIMONY. 

engaged for over twenty years in the manufacture 
of paper, has been held competent to testify as to 
what the condition of a paper mill and its machinery 
was at a certain time/ The opinion of a witness ex- 
perienced in the use of guns, has been received as 
to the length of time since the weapon was dis- 
charged.* And it has been held that witnesses who 
saw a pistol immediately after it had been discharged, 
and who were familiar with such weapons, could be 
asked their opinion on the question, whether the 
appearances indicated how many barrels had been 
fired, and which ones.* A witness accustomed to 
packing marbles for transportation, has been per- 
mitted, against objection, to state whether certain 
marbles were properly packed, the court declaring 
that such a question was a proper one for the testi- 
mony of experts.* An expert has been allowed to 
testify as to the usual manner in which zinc is im- 
ported.* A witness who is an expert in the curing 
and care of meats, may testify whether hams pre- 
pared in a certain prescribed way and shipped for 
transportation to a specified point, if properly 
stowed and cared for, ^'ought to have borne trans- 
portation'' to that point.* Such a witness may also 
be asked whether hams shipped in a specified condi- 
tion, would arrive at their destination in as good con- 
dition as when shipped, and as to what would likel}'^ 
be the effect of the weather upon provisions so ship- 



1 Blodgett Paper Co. v. Farmer, 41 N. H. 401. 

«MoDghon V. The State, 67 Ga. 102. 

8 Wynne v. State, 56 Ga. 113. 

< Shrlver v. Sioux City, etc. R. R. Co., 24 Minn. 506. 

» Richards v. Doe, 100 Maso. 524. 

•Leopold V. Van Kirk, 29 Wis. 648. 



OPINIONS OF EXPERTS IN MISCELLANEOUS CASES. 283 

ped/ And in an action to recover damages on ac- 
count of the unsound condition of hams shipped 
from Iowa to Alabama, there being evidence that 
they were sound when shipped, it was held compe- 
tent to show by expert testimony that if they w^ere 
unsound when received in Alabama after an ordi- 
nary transit, they must have been unsound when 
shipped.* 

The owner of a tan-yard, who had been engaged 
in the business of tanning for twenty- three years, 
^'seeing the work going on and knowing how it was 
done,'' has been allowed to testify as an expert as to 
matters connected with such business, although he 
was not himself a practical tanner, but employed 
others to do the work for him.' A person w^ho had 
peculiar opportunity for observing cotton, its nature 
and quality, its liability to catch fire and burn, has 
been allowed to testify that if a blazing missile, or 
a burning coal was applied to cotton, the cotton 
would be thereby fired immediately, and would 
burn with such rapidity that its extinguishment 
would be improbable, if not impossible.* 

In an action brought for damages sustained from 
the giving away of an elevator in a hotel it was held 
that an expert could not auswer the question w^hether 
the appearance of machinery would suggest to a 
prudent man the necessity of an examination. That 
was said to be a question for the jury.^ But in the 
case last cited the court say that, the question to 



1 Kershaw v. Wright, 115 Mass. 361. 
* Forcheimer v. Stewart, 73 Iowa, 216. 
8 Nelson v. Wood, 62 Ala. 175. 
< Seals y. Edmondson, 71 Ala. 509. 
« Gtoodsallv. Taylor, 41 Minn. 207. 



284 EXPERT TESTIMONY. 

what extent the apparent wear hnpaired the strength 
of the cable might have been a question for an ex- 
pert. 

In a recent case in Vermont the court decided 
that expert testimony was not admissible to show 
the shrinkage in measurement of hemlock bark as 
measured in the pile, and afterwards in the car, that 
being a matter of which the jury could judge from 
a description of the facts/ 

Brown v. Doubleday, 61 Vt. 523. 



EXPERT TESTIMONY IN HANDWRITING. 285 



CHAPTER VII. 



EXPERT TESTIMONY IN HANDWRITING. 



SECTION. 

121. Proof of Handwriting. 

122. Testimony of Non -professional Witnesses. 

123. When the Opinions of Such Witnesses are Inadmissible. 

124. The Basis of Expert Testimony Concerning Handwriting. 

125. Who are Experts in Handwriting. 

126. Disqualification of Experts Arising from Bias. 

127. Upon what Subjects Experts in Handwriting can Testify. 

128. Glenuineness of Writings as Determined by the Ink. 

129. The Qualification of Experts in such Cases. 

130. Comparison by Experts of Writings in Juxtaposition. 

131. Statutory Provisions Concerning a Comparison of Writings. 

132. Proof Under the Statutes. 

133. Comparison by Experts with Writings Admittedly Genuine— In 

the Absence of Statutory Provision. 

134. Comparison by Experts of Writings in Juxtaposition not Al- 

lowed in some States. 

135. Comparison in Doubtful Cases — The Intermediate Theory of 

the South Carolina Courts. 

136. The Right of Comparison with Writings Proven Genuine for 

the Purpose — ^Denied. 

137. The Right of Comparison with Writings Proven Genuine for 

the Purpose— Afllrmed. 

138. Mohe of Proof When Comparison is Allowed \\ilh Writings 

Proven Gknulne for the Purpose. 

139. Expert Should have Before Him in Court the Writings Compared. 

140. Comparison with Photographic Copies. 

141. Comparison with Letterpress Copies. 

142. Comparison with Writings Made on the Trial. 

143. Writings Admissible for Comparison in Orthography. 

144. Comparison of Writings — The Use on Cross-examination of 

Fictitious Specimens. 



286 EXPERT TESTIMONY. 

145. Detection of Counterfeit Bank Notes. 

146. Begulation of Such Evidence by Statutory Provision. 

147. The Value of Expert Testimony as to Handwriting. 



§ 121. Proof of Hand wri tins:. — When any doc- 
ument purporting or proved to be thirty years old 
is produced from its proper custody, there is a pre- 
sumption that the signature and every other part of 
the document which purports to be in the handwrit- 
ing of any particular person is in that person's hand- 
writing. And this presumption is not limited to 
formal instruments like wills and deeds, but it ex- 
tends to letters, receipts, and all other ancient writ- 
ings.* But in the case of writings not so old proof of 
genuineness must be made. If the person whose 
writing it purports to be is dead, or cannot be pro- 
duced at the trial, or denies his signature, and there 
are no witnesses who saw the writing done, then 
proof of the handwriting of the party becomes es- 
sential. And it is with the making of such proof 
that this chapter is concerned. 

^ 122. Testimony of Xon-professional Witnesses. 
— 1. When the genuineness of handwriting is in 
issue, the belief of any person is admissible who has 
seen the person write whose writing is the subject of 
dispute.* And the belief of such a witness is admis- 



1 Wynne v. T>rwhitt, 4 B. & Aid. 376; Fenwick v. Reed, 6 Mda. 7; 
Doe V. Beynon, 12 A & E. 431 ; Bertie v. Beaumont, 2 Price, 307 ; Bell v. 
Brewster, 44 Ohio St. 690, 694; Winn v, Paterson, 9 Pet. 663; Soharff v. 
Keener, 64 Pa. St. 376; Cahill v. Palmer, 45 K. Y. 478; Goodwin v. 
Jack, 62 Me. 414; Berry v. Raddin, 11 Allen, 579. 

« De La Motte's Case, 21 How. St, Tr. 810; Miles v. Loomis, 75 N. Y. 
288, 296; Bell v. Brewster, 44 Ohio St. 690, 696; State v. Gay, 94 N. C. 
814; State V. Stair, 87 Mo. 268, 274; Long v. Little, 119 ni. 600; Hopperv. 
Ashley, 15 Ala. 463; Moone v. Crowder, 72 Ala. 79, 88; SUte v. Thomp- 
son, 80 Me. 194, 199; Woodman v. Dana, 52 Me. 9, 11; National Bank 
v. Armstrong, 66 Md. 113, 116. 



TESTIMONY OF NON-PROFESSIONAL WITNESSES. 287 

sible, although he may have seen the person, whose 
writing is in question, write but once,* and that ten 
years' or twelve years before.' The opinion of a 
witness who had not seen the person write for nine- 
teen years has been received.* So has the opinion 
of a witness who had never seen the party in ques- 
tion write anything but his name.'^ As is said in one 
of the cases **the law has fixed no limits to the meas- 
ure of human capacity, '*' and, therefore, will not 
undertake to define any specific number of times the 
witness must have seen the party write, or the limit 
of time within which the handwriting must have 
been seen by the witness. If the witness has ever 
seen the party write, and from the exemplar in his 
mind can form an opinion as to the genuineness of 
the signature, his opinion will be admissible for 
what it is worth. While the competency of the 
witness is not affected by the lack of frequency of 
observation, or the length of time which may have 
elapsed since the writing was seen, the weight to be 
attached to the testimony will necessarily much de- 
pend on these circumstances.' 

2. But it is not in all cases necessary that the 
witness should have seen the party write, to enable 
him to identify the disputed writing. The opinion 

1 Home Tooke'8 Case, 25 How. St. Tr. 71 ; Wtllman v. WellmaD, 8 C. 
& P. 380; Garrells v. Alexander, 4 Esp. 37; Warren v. Anderson, 8 
Scolt, 384; Edelen v. Gough, 8 Gill (Md.), 87; Smith v. Walton 8 Gill 
(Md.), 18; Rediout v. Newton, 17 N. H. 71; Vinton v. Peck, 14 Mich. 
2ii7, 293; Pepper v. Barnelt, 29 Gratt. (Va.) 406; State v. Scott, 45 Mo. 
302, 304. 

* Warren v. Anderson, 8 Scott, 384. 
3 Brachman v. Hall, 1 Disney, 539. 

* Home Tooke's Case, 25 How. St. Tr. 71. 

* Garrells v. Alexander, 4 Esp. 37. 
' Brachman v. Hall, 1 Disney, 539. 

7 Miles V. Loomis, 75 N. Y. 288, 295. 



288 EXPERT TESTIMONY. 

of a witness may be received who has never seen the 
party write if he has received letters from him in 
answer to letters written b}'^ the witness, or under 
his direction, and addressed to the person whose 
writing is in question/ 

It is, of course, quite possible that the correspond- 
ence may have been written by some other person, 
by the authority of the party whose name is used. 
But as ordinarily persons write their own letters, un- 
less the letters indicate the contrary, the courts have 
established the principle that a witness who has 
never seen the party write is competent to testify if 
he has through correspondence acquired a knowl- 
edge of such party's handwriting. 

3. The opinion of a person is admissible, al- 
though he may never have seen the person write 
whose signature is in dispute, nor received letters 
from him in reply to letters written by himself, pro- 
vided writings purporting to have been written by 
such person have passed through the hands of the 
witness in the ordinary course of business. Thus, 
Lord Denman has said: ' 'The servant who has habit- 
ually carried letters addressed by me to others has 
an opportunity of obtaining a knowledge of my writ- 
ing, though he never saw me write, nor received a 
letter from me.'' ' 

4. Likewise the opinion of a witness can be re- 
ceived where he has seen a signature which the per- 



* GU)uld V.Jones, 1 W. BI. 384; Harrington v. Pry, 1 C. & P. 289; Par- 
sons V. McDanlel, 62 Ga. 100; Southern Ex. Co. v. Thornton, 41 Miss. 
216; Atlantlclns. Co. V. Manning, 3 Col. 228; Empire Manuf. Co. v. 
Stuart, 46 Mich. 482; Thomas v. State, 103 Ind. 419, 429; Hall v. Van 
Vranken. 28 Hun, 403, 404. 

> Mudd y. Suckermore, 5 Ad. & Ell. 703. 



WHEN OPINIONS OF WITNESSES INADMISSIBLE. 289 

son whose signature is disputed has acknowledged 
to be his/ 

And in a recent case in North Carolina a witness 
was allowed to testify as to the handwriting of his 
uncle, he having seen many letters purporting to 
come from him to the father of witness, about family 
matters or family business, concerning which no one 
else was familiar.' 

5. Moreover, a person is competent to express an 
opinion concerning the genuineness of a signature 
where the witness at the time of holding an official 
position, has, in the performance of his duties, 
become acquainted with the signature or writ-^ 
ing of the person whose signature is in dispute.' 
Thus the signature of a justice of the peace may be 
proved by another public officer who has seen it as 
a certificate on papers filed in his office.* 

^ 123. When the Opinions of Non-Professional 
Witnesses are Inadmissihie. — Where the knowl- 
edge of an ordinary witness as to the hand- 
writing of a person whose signature is the sub- 
ject of dispute is acquired after the disputed 
signature is alleged to have been made, the wit- 
ness may be incompetent to testify on the knowl- 
edge so acquired. Thus, in an early English case. 
Lord Kenyon rejected the evidence of a witness who 
• stated that he had seen defendant write his name 
several times before the trial, he having written it in 
order to show the witness his true manner of writ- 

1 Hammond v. Varian, 64 N. Y. 398; Gordon t. Price, 10 Ired. (N. C.) 
388. 

« Tuttle V. Rainey, 98 N. C. 513. 

» Yates V. Yates, 76 N. 0. 142; Goddard v. Gloninger, 5 Watts, 209; 
Dungan v. Beard, 2 N. & M. 400; Doe v. Roe, 31 Ga. 599; Sill v. Reese, 
47 Gal. 343; Amherst Bank v. Root, 2 Met. 523. 

^ Rogers v. Ritter, 12 Wall. 317. 

(19) 



290 EXPERT TESTIMONY. 

ing, so that the witness might be able to distinguish 
it from his alleged signature/ The reason was, of 
course, the possibility that the defendant inten- 
tionally disguised his hand. And in a case decided 
a few years since in Illinois, a witness who had no 
acquaintance with the handwriting of the party un- 
til after a particular signature was denied, and who 
then examined such person's report as guardian, filed 
in the county court, and the signature thereto, was 
held not competent to express an opinion as to the 
genuineness of the signature in dispute. The court 
say: **This is clearly insufficient to entitle him to 
give his opinioo in evidence. His knowledge was 
acquired under circumstances tending to bias his 
mind, imperceptibly though it may have been to 
himself. It is scarcely probable that he did not have 
some impression of the genuineness of the signature 
before he examined the guardian's reports. That 
he felt an interest in the question, is shown by the 
fact that he put himself to the trouble to make the 
examination. When, therefore, he investigated, 
however honest he may have believed himself to be, 
the natural tendency of his mind wojild most likely 
find something to confirm his preconceived opinion. 
In this way important differences may have been 
overlooked, and slight resemblances greatly magni- 
fied. Knowledge thus acquired is vastly different 
from that acquired by repeatedly seeing a handwrit- 
ing, and scrutinizing it, when no unfavorable cir- 
cumstances exist to arouse suspicion and excite the 
imagination."* 



^ Stranger v. Searle, 1 Esp. 14. 

< Board of Trustees v. Misenheimer, 78 HI. 22, 24 (1875). And see 
Snyder v. McKeever, 10 Brad. (Ul.} 190; Reese v. Reese, 90 Penn. 89. 



TESTIMONY CONjCERNING HANDWRITING. 291 

When the statute provides that a person inter- 
ested in the event shall not be examined as a witness 
in his own behalf, or interest concerning a personal 
transaction or communication between the witness 
and the deceased person, it has been held that such a 
witness is incompetent to prove the signature of the 
deceased t6 the instrument under which the witness 
claims/ 

^ 124. The Basis of Expert Testimony Goncern- 
ing HandwritinfiT. — But the opinions of profes- 
sional witnesses are also received on the subject 
of handwriting. Calligraphic experts ,have for 
years asserted the possibility of investigating hand- 
writing upon scientific principles, and the courts 
have consequently admitted such persons to testify 
in cases of disputed handwriting. It is claimed that 
experiment and observation have disclosed the fact 
that there are certain general principles which may 
be relied upon in questions pertaining to the genu- 
ineness of handwriting. For instance, it is asserted 
that in every person's manner of writing there is a 
certain distinct prevailing character, which can be 
discovered by observation, and being once known 
can be afterwards applied as a standard to try other 
specimens of writing, the genuineness of which is 
disputed.' Handwriting, notwithstanding it may be 
artificial, is always, in some degree, the reflex of the 
nervous organization of the writer. Hence, there is 
in each person's handwriting some distinctive char- 
acteristic, which, as being the reflex of his nervous 
organization, is necessarily independent of his own 
will, and unconsciously forces the writer to stamp the 

1 Garvey v. Oweon, 37 Hun (N. Y.), 498. 

> See Plankett t. Bowman, 2 McCord,139; Haniiot v. Sherwood, 83 
Va. 19. 



292 EXPERT TESTIMONY. 

writing as his own. Those skillful in such matters 
affirm that it is impossible for a person to successfully 
disguise in a writing of any length this character- 
istic of his penmanship; that the tendencies to angles 
or curves developed in the analysis of this character- 
istic may be mechanically measured by placing a 
fine specimen within a coarser specimen, and that 
the strokes will be parallel if written by the same 
person, the nerves influencing the direction which 
the will gives to the pen. 

So, too, it is claimed that no two autograph signa- 
tures, written in a natural hand, will be perfect /ac- 
similes. In the famous Rowland will case,^ Prof. 
Pierce, a very distinguished mathematician, at that 
time the professor of mathematics in Harvard Uni- 
versity, testified that the odds were just exactly 
2,866,000,000,000,000,000,000 to 1 that an individ- 
ual could not with a pen, write his name three 
times so exactly alike as were the three alleged sig- 
natures of Sylvia Ann Howland, the testatrix, to a 
will and two codicils. The experts, therefore, claim, 
that if, upon superimposition against the light, they 
find that two signatures perfectly coincide, that they 
are perfect facsimiles, that it is a probability, 
amounting practically to a certainty, that one of the 
signatures is a forgery. 

§ 125. Who are Experts In Handwritinfir. — It be- 
ing granted that there is such a thing as a science 
of handwriting, it follows that the opinions of wit- 
nesses who are skilled in the science are admissible 
in evidence in accordance with a fundamental prin- 
ciple alrea,dy considered.' It is of course error to 

1 4 Am. Law Review, 625, 649 
* See section 6, p. 19. 



EXPERTS IN HANDWRITING. 293 

allow a witness, offered as an expert in handwriting, 
to give testimony in handwriting until an examina- 
tion has shown that he is possessed of sufficient skill 
and experience to warrant the reception of his opin- 
ions. And the principle has been laid down in gen- 
eral terms that, whenever handwriting is a subject of 
controversy in judicial proceedings, the opinions of 
'* witnesses who by study, occupation and habit have 
been skillful in marking and distinguishing the 
characteristics of handwriting" may be received in 
evidence.' 

In passing on the qualifications of a witness to 
give expert testimony on the subject of handwriting 
the courts attach great importance to the avocation 
of the witness. If it has been such as naturally 
qualifies him to judge of handwriting, the court 
will allow him to testify as an expert. If, however, 
his business experience has not been such as to give 
him any special skill in the examination of disputed 
writings, he will not be permitted to testify as an 
expert, unless it is made to appear that he has in 
some other way acquired actual skill and scientific 
knowledge.* The rule is well laid down in a recent 
case in the Supreme Court of California, where it is 
said that the witness ''must have been educated in 
the business about which he testifies; or it must first 
be shown that he has acquired actual skill and 
scientific knowledge upon the subject.'"' If the wit- 
ness has really acquired actual skill and scientific 
knowledge Upon the subject of handwriting, he is 
none the less an expert because he has not happened 
to have. been in situations where his duty required 

» Sweetoer v. Lowell, 33 Me. 460. 

* State V. Tompkins, 71 Mo. 616; Wagner v. Jacobv 26 Mo. 530. 

s Goldstein t. Black, 50 Cal. 464. 



294 EXPERT TESTIMONY. 

him to distinguish between genuine and counterfeit 
handwriting/ 

The fact that the expert has no other knowledge 
of the writing in dispute than that derived by a com- 
parison of the disputed writing with others that are 
genuine, is not regarded as any disqualification 
whatever.' This must be regarded as the rule, al- 
though it was laid down at one time that an expert 
who had never seen the party write could not give his 
opinion as to the genuineness of the writing in ques- 
tion based solely on a comparison of writings, but 
that he was to testify to the condition and 
appearance of the words, and of the letters 
and characters contained in the writings, and 
ppint out and explain similarities and differ- 
ences.* When an expert acquires a knowledge 
of the handwriting of a person by simply observing 
him write several times, and this for the purpose of 
testifying, it is laid down that he is incompetent to 
give an opinion as to the genuineness of that person's 
signature.* It is quite possible that the party may 
have written differently through design.' 

Mere opportunity afforded for observation of 
handwriting does not of itself qualify, one to give 
testimony as an expert in the science of handwriting, 
and the mere fact that a witness has sometimes com- 
pared the signatures of individuals, where disagree- 

^ Sweetser v. Lowell, 33 Me. 450. 

« Miles V. Loomis, 75 N. Y. 287; State v. Shlnborn,46 N. n.497; Cal- 
kins y. State, 14 Ohio St. 222; Macomber y. Scott, 10 Kan. 335; Moody 
y. Rowell, 17 Pick. (Mass.) 490. 

> Roe y. Roe, 40 N. Y. Superior Ct. 1 ; Frank y. Chemical National 
Bank, 37 Ih. 30. 

^ Reese y. Reese, 90 Pa. St. 89. And see § 123. 

' Stranger y. Searle, 1 Espinasse, 14. And see Springer y. Hall, S3 
Mo. 693, 697. 



EXPERTS IN HANDWRITING. 295 

meats as to their genuineness have arisen, has been 
held not suflScient to render him competent to tes- 
tify as an expert in disputed writings.* It is not 
necessary to constitute one an expert and qualify 
him to testify as to a comparison of handwritings, 
that he should have made a comparison of hand- 
writing a single specialty. As said in one of the 
cases: *'It is enough that he has been engaged in 
some business which calls for frequent comparisons, 
and that he has in fact been in the habit for a length 
of time of making such comparisons.''* 

In Iowa the court has been somewhat liberal in 
its determination of what is necessary to qualify one 
as an expert in handwriting. According to the view 
taken by that court it would appear that almost any 
business man id qualified to express an opinion as 
an expert in such cases. A witness has there been 
held competent, who testified on his preliminary ex- 
amination that he did not consider himself an expert 
in handwriting, and had never made it a business 
to compare or detect feigned or forced handwriting. 
That he presumed he had some skill in comparing 
handwriting, but did not pretend to any extra skill, 
simply thinking that he was as good a judge as busi" 
ness men generally. He had been a clerk in a store, 
the editor of a newspaper, and for the last fifteen 
years a lawyer. He had examined a good deal of 
writing, and said he had been in the habit of exam- 
ining balik bills to test their genuineness. So, in 
the same case, a merchant was held competent, who 
did not profess to be an expert, but had examined 
bank bills to detect counterfeits.* A witness who 

^ Goldsfeis ▼. Black, 60 Cal. 464. 
s Ort y. Fowler, 31 Kan. 478, 486. 
• Hyde v. Woolf oik, 1 Iowa, 159. 



296 EXPERT TESTIMONY. 

merely professed to be as good a judge of handwrit- 
ing as business men generally, would certainly not 
be regarded in some courts as possessing the peculiar 
skill of an expert. But the court say that, '*Itis 
true that persons giving evidence on a matter per- 
taining to their particular science, trade or art, come 
most strictly and technically under the term *ex- 
perts,' but we cannot consent to the proposition that 
no others come within it, and are allowed to be wit- 
nesses in any case. It may very probably be true, 
that none are to be taken as experts on matters per- 
taining to a particular calling, art or science, but 
those who are, or have been practiced, in such art 
or science. But there are many subjects of inquiry 
which do not belong to a particular art, etc., but on 
which a greater or less degree of knowledge is com- 
mon to many men an different callings." And the 
court concluded that a comparison of writings did 
not present such an inquiry as required a witness of 
a particular calling as an expert, but that his com- 
petency depended on his means of knowledge as a 
business man and his intelligence. 

When a witness testified ''I am an expert in writing, 
by having written a great deal, and by having seen 
and read a great deal of writing," the Court of Ap- 
peals of Texas said, **The witness qualified himself 
fully as an expert."* In another case in the same 
court it was held that error was committed in allow- 
ing a witness to testify as an expert who stated that 
* * he had been ' engaged in the banking business 
about five years, and was more or less experienced 
in handwriting — that his clerks did the most of his 
correspondence, etc. He had little occasion to exer- 

1 Cbester v. State, 23 Tex. Ct. of App. S88. 



EXPERTS IN HANDWRITING. 297 

oise in comparing handwriting, and did not consider 
himself an expert — was never before called to testify 
in a case as an expert; seldom had occasion in his 
business to compare handwriting; thought he could 
tell handwriting by comparison; thought he could 
by comparing two written instruments, tell whether 
or not they were written by the same person; did not 
consider himself an expert in comparing handwrit- 
ing."* The Supreme Court of Missouri declares 
that **one who does not profess to be an expert in 
handwriting, or whose avocation in life has not been 
such as to qualify him to judge of handwritings, 
should not be permitted to testify as an expert."* 

1. Writing engravers, accustomed accurately to 
examine the formation of letters in different hand- 
writings, and who have acquired skill from their 
occupation of making engravings of handwritings, 
are allowed to testify as experts.* 

2. So are tellers* and cashiers* of banks, who 
have acquired skill in passing on the genuineness of 
signatures to notes and checks. And in general any 
officer of a bank whose business it is to examine 
papers with a view of detecting alterations and eras- 
ures, and ascertaining genuine from spurious writ- 
ings, is an expert in questions pertaining to hand- 
writing.* 

3. A clerk in a post-office, accustomed to the in- 

* Heacock v. State, 13 Tex. Ot. of App. 97, 130. 
> state y. Tompkins, 71 Mo. 613. 

• Spear v. Bone, cited in 5 A. &E. 709; Retina v. Williamg, 8 C. & P. 
34; Norman v. Morell, 4 Vesey Ch. 768; Turnbull v. Dodd8,6 D. (S. C.) 
901. 

* Speiden v. State, 3 Tex. Ct. of App. 159. 

» Dubois V. Baker, 30 N. Y. 355, 861 ; People v. Hewitt, 2 Parker's Cr. 
Gas. 20; State v. Phair, 48 Vt. 366, 369; Lyon, v. Lyman, 9 Conn. 59,60; 
Murphy v. Hagerman, Wright (Ohio), 293. 

• Pate V. People, 3 Gilm. (Dl.) 644, 659. 



298 EXPEBT TESTIMONY. 

spection of franks for the detection of forgeries, is 
deemed to possess the qualifications of an expert/ 

4. A book-keeper or cashier of a commercial 
house who has had experience in the exarnination of 
handwriting to determine its genuineness has been 
held competent to testify as an expert.' 

5. A writing master has testified as an expert, 
the question being whether a writing was in a nat- 
ural or simulated hand.' 

6. A sheriff* of a county* and a county clerk,* 
each having been accustomed to pass on the genu- 
ineness of signatures, have been permitted to testify 
as experts on the subject. 

7. A lawyer has been held competent to testify 
as an expert, he having stated on his preliminary 
examination that he had occasion to examine hand- 
writing with a view to comparison of writings, that 
he had been called to the stand as a witness in re- 
gard to them, a good many times; that he had never 
made a business of criticising writing, but had been 
accustomed to do it, and supposed he could identify 
handwriting pretty well.* 

§ 126. Disqualification of Expert Arisinsr from 
Bias. — In a case in the Circuit Court of the United 
States for the District of South Carolina the govern- 
ment called as an expert in handwriting a post-oflSce 
inspector. It appeared on the preliminary examin- 
ation concerning his qualifications that he had been 
detailed by the post-office department to examine 
into and collect the facts of the case; that he had 

1 Revett y. Braham, 4 Term, 49. 

• State V. Ward, 39 Vt. 225. 

< Moody v. Rowell,17 Pick. (Mass.) 490. 

< Yatea v. Yates, 76 N. 0. 142. 

* State V. Phair, 48 Vt. 366, 369. 
« State V. Pbair, 48 Vt. 366, 369. 



ON WHAT SUBJECTS EXPERTS CAN TESTIFY. 299 

hunted up the testimony, and had busied himself 
in the inception and prosecution of the case. The 
defendant thereupon objected to his competency, ' 
and the objection was sustained, the court saying : 
*' Where the person called to testify as an expert is 
one occupying the relation to the case which this 
witness does — saturated with bias against the de- 
fendant, honestly convinced of his guilt, and, in the 
conscientious discharge of his duty, seeking to bring 
him to punishment — ^he can aflfbrd the jury no effi- 
cient aid in coming to a fair and impartial conclu- 
sion. His evidence as an expert to the point indi- 
cated will not be admitted."* 

§ 127. Upon what Subjects Experts in Hand writ- 
ingr can Testify. — Experts in handwriting are permit- 
ted to express an opinion on the question whether a 
writing is in a natural or simulated hand;' whether it 
appears more cramped and confined than the hand 
which the writer usually wrote;' and as to which of 
two instruments exhibits the greater ease and facility 
of writing.* They have been permitted to testify that 
a certain writing bore the appearance of having been 
touched by a pen a second time, as if done by some 
one attempting to copy or imitate the handwriting 
of another.* And on an indictment for uttering a 
forged will, which, together with writings in support 

^ United States t. Mathias, 36 Fed. Rep. 892, S94. 

* Queen y. Shepherd, 1 Cox Or. Gas. 237 ; Goodtitle y. Braham, 4 Term) 
497; Rex y. Gator, 4 Esp. 117; Spear y. Bone (M. S.), cited in 5 A. ft 
E. 709; Reilly y. Riyett, 1 Gases tn Eng. Eccls. Gts, 43, note a; Moody 
y. Rowell, 17 Pick. (Mass.) 490; Commonwealth y. Webster, 5 Gush. 
(Mass.) 295; BurdiclE y. Hunt, 43 Ind. 381 ; Miles y. Loomis, 17 Hun (N. 
Y.), 372; Goodyear y. Vosburgh, 63 Barb. (N. Y.) 164; People y. Hew- 
itt, Parker Cr. Gas. 20. See p. 303. 

< Dubois y. Baker, 30 N. Y. 355, 362. 
« Demerrltt y. Randall, 116 Mass. 331. 

* Spear y. Bone, 9upra. 



300 EXPEBT TESTIMONY. 

of it, it was suggested had been written over pencil 
marks which had been rubbed out, the testimony of 
an engraver was received, who had examined the 
paper with a mirror and traced the pencil marks/ 

It has been held competent to ask an expert 
whether certain parts of a writing could have been 
made with a pen, but not whether it could have 
been made with an instrument which was found 
in the possession of the defendant.' So an expert 
may testify whether two documents were written 
with the same pen and ink, and at the same time.* 
And when it is alleged and denied that the body 
and signature of an instrument are in the same 
handwriting, he may be asked to express an opinion 
whether the two parts were written by the same per- 
son.* 

Where one writing crosses another, an expert may 
testify which in his opinion was written first.* His 
opinion has also been taken on the question, whether 
certain words on a paper shown him, were written 
before or after the paper was folded.* And the judi- 
cial committee and lords of the privy council have 
called an expert for the purpose of obtaining his 
opinion as to whether a circumflex line, surround- 
ing the names of the witnesses to a will, was made 
before or after the signature.^ 

In consequence of a deed having been drawn up 



1 Begina v. WSUlamB, 8 Car. & P. 34. 
* Commonwealth v. Webster, 5 Cash. (Mass.) 295. 
s Fulton v. Hood, 34 Pa. St. 365; Quinsigmond Bank v. Hobhs, 11 
Oray (Mass.) , 250. See p. ibi. 
^ Reese v. Reese, 00 Pa. St. 89. 

» Cooper V. Bockett, 4 Moore P. C. 433; Dubois v. Baker, 30 N. Y. 355. 
« Bacon v. Williams, 13 Gray (Mass.), 525. 
7 Cooper V. Bockett, 4 Moore P. C. 433. 



ON WHAT SUBJECTS EXPERTS CAN TESTIFY. 301 

^4n an unusual and slovenly manner, and so as at 
first sight to cause doubt as to the genuineness of a 
part of it," Chief Justice Meredith ordered an ex- 
pertue in the Quebec Court of Review, and this 
course was not disapproved of either by the Court of 
Appeals or the Lords of the Privy Council/ 

It is well settled that expert testimony is admis- 
sible upon the question of the alteration' or erasure 
of writings.* A holograph will, in which alterations 
and interlineations appeared, has been admitted to 
probate upon the testimony of an expert, that in his 
opinion, the alterations were written at the same 
time as the rest of the will.* An expert accustomed 
to the use of the microscope, having examined the 
note in question through that instrument, has been 
allowed to testify that the word "year" in the body 
of the note had been erased, and the word ''day" 
written upon the erasure.* So an expert has been 
permitted to express an opinion, that a note has been 
altered by the substitution of one figure for another,* 
and whether certain words in a writing had been 
cancelled.^ 

An engraver has been examined as to an illegible 
writing,® and, in general, the testimony of experts is 
admissible whenever the writing is obscure and diffi- 



1 See Hamel y. Panet, 3 Quebec Law R. 173, 175. 

* Moye v. Herndon, 30 Miss. 118; Vinton v. Peck, 14 Mich. 287 ; Pate 
V. The People, 3 Glim. (Ul.) 644. 

* Edelin v. Sander's Exr. 8 Md. 118; Yates v. Waugh, 1 Jones (N.C.) 
Law, 483. See Swan v. OTallon, 7 Mo. 231 ; Wagner v. Jacoby, 26 Mo. 
530. 

< In the Goods of Hindmarch, 1 P. & M. 307. 

* Dubois V. Baker, 30 N. Y. 355. 

* Nelson v. Johnson, 18 Ind. 320. 
» Beach v. O'Rlley, 14 W. Va. 55. 

8 Norman v. Morell, 4 Vesey Ch. 768. 



302 EXPERT TESTIMONY. 

cult to be deciphered/ If the writing is ancient, an 
expert may state his belief as to the probable period 
at which it was written.' But in a recent case 
in Nebraska the opinion is expressed that the 
question of the age of a written paper is not 
one of science or skill so as to make admissi- 
ble the opinion of an expert upon its mere 
inspection.* The judge writing the opinion of the 
court in that case says : *' Whatever reading, exam- 
ination, and reflection I have been able to give to 
the case, has led me to the conclusion that it does not 
present a question of science, skill, or trade, nor one 
of a like kind. In other words, I do not think that 
any amount of science, study, or skill would enable 
a person by mere inspection, to judge or testify of 
the age of handwriting with that accuracy necessary 
to its value or safety in judicial proceedings. The 
appearance of a written paper, some years, or even 
months old, will depend greatly upon the color, 
kind and quality of the ink used, and greatly upon 
the receptacle or place where the paper has been 
kept, whether excluded from the air or sunshine, 
whether in a dry or damp, hot or cool place, and 
other conditions, the knowledge of which must be 
derived from sources other than inspection. Again , 
there is no recognized science or trade in which it 
can be said to be necessary that persons engaged in 
it should be skilled in detecting the age of writings 
by inspection. The science of the law, perhaps, 



1 Masters v. Masters, 1 P. Wm. 425; Stone v. Hubbard, 7 Cusb. 
(Mass.) 695. It is a question for the jury and not for the court to deci- 
pher illegible letters or figures : Armstrong v. Buitows, 6 Watts. 266, 268. 

* Tracy Peerage Case, 10 01. & Fin. 154; Doe y. Suckennore, 5 Ad. & 
Ellis, 703, 718. See section 128; also pp. 307, 309. 

« Cheney v. Dunlap, 20 Neb. 266, 271, (1886). 



ON WHAT SUBJECTS EXPERTS CAN TESTIFY. 303 

comes nearer to it than any other, and the instances 
in which it becomes necessary or even useful that 
the legal practitioner should possess such skill are 
very rare." It has been held that an expert 
could not express an opinion that certam words 
were interpolated into a written agreement after 
the signature was affixed, if such opinion was 
founded on the situation and crowded appearance 
of the words.* And how much a man can improve 
his handwriting in a short time, is not a subject for 
the testimony of experts. It has been held, there- 
fore, improper to ask an expert whether a man could, 
within a short time, so improve his handwriting, as 
shown by the standard signatures of the testator, as 
to make a signature of as good a handwriting as that 
of the will.' 

When a plaintiff, in a proceeding to cancel the 
deed, alleged that while drunk he was induced by 
the fraudulent representations of the defendant to 
make him a deed for land, the defendant saying it 
was only an arbitration bond, an expert was allowed 
to state whether there was Siuy difference between 
two signatures of the plaintiff — the one to the deed 
in question and the other an affidavit filed in the 
cause.* Expert testimony is admissible as to the 
characteristics of different signatures,* and as to 
whether certain signatures presented the appearance 
of ''simulated imitations."' 

In a case in Texas an expert made an imitation 
or copy of the signature of the person whose signa- 

1 Jewett V. Draper, 6 Allen (Mass.), 434. 

s McKeone y. Barnes, 108 Mass. 344, 347. 

> McLeod v. Ballard, 84 N. C. 515. 

* Biordan v. Gugerty, 74 Iowa, 688. 

« Ludlow y. Warshing, 108 N. Y. 520. See cases cited, p. 299. 



304 EXPERT TESTIMONY. 

ture was in dispute, and the copy or imitation was 
exhibited to and handed to the jury along with the 
signature of that person, for their inspection and 
comparison, in order to show how easily the name 
could be counterfeited or forged. This evidence was 
held to be ''wholly immaterial and inadmissible. 
It could throw no light on the transaction. It 
might have been perfectly easy for Boyd (the ex- 
pert) to counterfeit this signature or any other, and 
still that fact did not tend in the slightest degree to 
prove either that defendant did it or that he was 
competent even to do it."^ 

In a case in Illinois where an action was brought 
on a note, and a pen and ink line had been drawn 
through the printed words, '*if not paid at matu- 
rity," the question being as to the time when this 
line was drawn, it was held that the subject-matter 
of inquiry required no peculiar habits or study, no 
scientific language to understand it, and that it was 
error to allow so-called experts to express an opinion 
in regard to it.' 

§ 128. The Genuinenesjs of Writinsrs as Deter- 
mined by the Nature of the Ink. — Where a writing 
purports to be of ancient or recent date, the testi- 
mony of experts who have made a micro-chemical 
examination of the ink in which the instrument is 
written, is received to show the nature of the ink, 
whether it was found fresh or old, and whether it 
was of such a nature as to grow old rapidly.' Such 
testimony is also received when the question arises 
whether a portion of the writing was made at a time 
different from that at which the rest of the instru- 

' Thomas v. State, 18 Tex. Ct. of App. 213, 218. 

» Collins V. Crocker, 15 Brad. (HI.) 107. See p. 300. 

« See 18 Am. Law Register (N. S.), 273, 282. 



GENUINENESS OF WRITINGS. 305 

ment was written, or whether different inks were 
emplo3'^ed/ Cases have been referred to in the sec- 
tions immediately preceding this, showing that ex- 
perts are permitted to express an opinion as to the 
probable time at which an instrument was written, 
whether different parts of the same instrument were 
written at the same time, and with the same ink, 
and where two writings cross each other, as to which 
was written first. In all these inquiries much light 
can be obtamed from experts skillful in the micro- 
chemical examination of inks. The importance 
of such testimony is well illustrated by a case 
decided in the Supreme Court of Michigan, where 
an exact similaritj^' in the ink used in execut- 
ing two different instruments, bearing different 
dates, was treated in connection with other suspi- 
cious facts, as tending to indicate that both writings 
were made at the same time.* 

When two writings cross each other, if the writ- 
ing was done with a different kind of ink, the ques- 
tion which was the superposed ink may be easily 
determined by wetting a piece of paper with a com- 

1 Ibid, 288. A distinguished expert in the scientific investigation of 
handwriting, there gives an interesting account of a case of this nature, 
which happened to come within his personal experience. It showR how 
the difference in inlcs may often he ascertained hy means of a photo- 
graphic copy of the writing. He says : ^*The photogrnph is ahle to dis- 
tinguish shades of color which are inappreciahl** to the naked eye; thus 
where there is the least particle of yellow present in a color it will take 
notice of the fact by making the picture blacker, just in proportion as 
tbe yellow predominates, so that a very light yellow will take a deep 
blHck. So any shade of green, or blue, or red. where there is an imper- 
ceptible amount of yellow, will print by the photographic process more 
or less black ; while either a red or blue, verging to a purple, will show 
more or less faint, n« the case may be. Here is a method of investiga- 
tion which may b« very useful in such cnses. and which will give no 
uncertain answer." in Goodyear v. Voshurgh, 63 Barb. (N. Y.) 164, 
the differenre in the color of the ink used was taken into consideration. 

« Slielloav. Waruer, 45 M.ioh. 6)8. 

(20) 



306 EXPEBT TESTIMONY. 

pound which acts as a solvent of ink. By pressing 
the paper upon the writing in question, a thin layer 
of the superposed ink will be transferred to the pre- 
pared paper, thereby furnishing an answer to the 
question propounded. If the same kind of ink was 
used, the case presents greater difficulties, and other 
methods are resorted to. But to attempt to deter- 
mine the question, as it is oft^n done by the aid of 
the eye or the magnifying glass, is said to be no bet- 
ter than guess-work.' 

§ 129. The Qualifications of Experts in Such 
Cases. — In all cases where opinions are desired pred- 
icated upon the nature of the ink used, an expert 
microscopist and chemist, accustomed to the exam- 
ination of inks for the purpose of determining the 
nature and properties of different inks, and the age 
of writings, Would unquestionably be competent to 
express an opinion. But whenever the question re- 
lates to the age of a writing, an expert who has sim- 
ply been in the habit of studying the genuineness of 
handwriting, for the mere purpose of determining 
whether it was in the handwriting of the person by 

1 18 Am. Law Reg. (N. S.) 273, 287, where a microscoptc and 
chemical expert in the examination of writings, says: *^I toolc for 
the purpose of my experiment ten of the most common kinds of 
ink found in the market, and drew a series of lines, three in num- 
ber, with each kind of ink, across a sheet of paper. This was 
followed by a similar series drawn diagonally across the first, thus form- 
ing a hundred points of crossing, and placing each kind of ink above 
and also under all the others. In thirty- seven cases out of the hundred , 
the eye, with or without the glass, saw the under ink as if it were on the 
surface; in forty cases nothing could be decided in this respect; the 
balance told the truth of the matter. By the other method, that is, by 
the use of the solvent, the true facts could be made plain in every one of 
these cases. This experiment, as will be seen, was made with ten kinds 
of ink more or less differing from each other in color and in chemical 
composition, and it certainly proves that all such testimony, ns I have 
said, has been thus far no better than guess-work.'* 



QUALIFICATIONS OF EXPERTS IN SUCH CASES. 307 

whom it purported to have been written, would not 
be competent to express an opinion/ For that in- 
volves a question in a very different department of 
inquiry, and it is necessary that the witness should 
have made that subject a matter of special study 
and investigation. The courts cannot be too care^ 
ful in passing on the qualification of witnesses offered 
as experts in this particular line of inquiry.' 

In a case decided in the Supreme Court of North 
Carolina in the year 1854, the defendant con- 
tended that although the instrument declared 
on was in the handwriting of the testator, yet 
the body of it was a forgery, the original having 
been removed by some chemical process, and the 
present writing substituted. To show this a witness 
was introduced who was not a professed chemist, 
and who knew little or nothing about the science. 
The trial court permitted him to testify that he had 
just seen an experiment performed, whereby legible 
writing with ordinary ink had been erased and ex- 
tracted from a piece of paper (which he then held 
in his hand), by the application of certain chemicals. 
The object of the testimony was to show that ink 
might be removed from paper without injuring its 
texture. The Supreme Court held that he was not 

» Clark V. Bruce, 19 N. Y. Sup. Ct. (12 Hun), 271, 273. See, too, El- 
lirgwood V. Bragg, 52 N. H. 488; Cheney v. Dunlap, % Neb. 266. 

* *^I liave repeatedly,** says an expert, ^^examined papers which have 
been made to appear old by various methodn, such as washing with cof- 
fee, with tobacco water, and by being carried in the pocket near the 
person, by being smoked and partially burnt, and in various other ways. 
I have in my possession a paper which has passed the ordeal of many 
examinations by experts and others, which purports to be two hundred 
years old, and to have been saved from the Boston fire. The handwrit- 
ing is a perfect faC'Simile of that of Thomas Addington, the town clerk of 
Boston, two hundred years ago, and yet this paper is not over two years 
old." 16 Am. JUaw Reg. (N. 8.) 273, 289. 



308 EXPERT TESTIMONY. 

properly qualified/ That the witness was not qual- 
ified to give testimony as an expert is entirely clear, 
but it is somewhat difficult to understand why he 
was not competent to testify in the character of an 
ordinarj'' witness, to the fact which he had observed, 
namely, that certain effects followed the application 
of the chemicals to the paper in the instances which 
he witnessed, 

Iji a case decided in the Supreme Court of Califor- 
nia, the testimony showed that a powder, composed 
of three parts of hydro-carbonate of soda to one part 
of chlorate of potash, was found in the baggage of 
one of the defendants, wherepon a police officer was 
permitted to testify that he had used a portion of the 
powder found by him in the defendant's baggage, 
in connection with muriatic acid, for the purpose of 
extracting ink from paper, and that, with the use 
of a camel's hair brush, he had extracted the ink 
from two checks — one prepared by counsel of defend- 
ant and the other written in imitation of th6 original 
check and with the same kind of ink. That the ink 
was extracted from the body of the checks without 
affecting the signatures, and leaving the parts where 
the ink was extracted perfectly white, the texture of 
the paper being uninjured.' Here the witness was 
not an expert, but he was permitted to testify to 
the facts which he had observed. 

However, in a case in Iowa, a witness who had 
been a teacher of penmanship for twenty-five years, 
and other witnesses who wore attorneys all of whom 
testified that they were familiar with old papers and 
writings, and thought they were capable of giving an 

J Otey V. Hoyt, 2 Jones (N. C.) Law, 70. 
< People V. Brotherton, 47 Gal. 395, 402. 



COMPARISON OF WR1TING8 IN JUXTAPOSITION. 309 

opinion on the question, were held competent to 
testify as experts that a certain instrument was of 
recent origin. The court said: '*We do not think it 
was necessary, to qualify a witness to testify upon 
the question, that he should be a chemist, and have 
knowledge of the chemical composition of ink.''^ 

§ 130. Comparison by Experts of Wri tings in 
Juxtaposition. — There are two distinct methods of 
judging of the genuineness of handwriting by means 
of comparison. According to one method, a witness 
who has acquired personal knowledge of another's 
handwriting, by having seen such person write, or 
by having received letters from him in due course of 
business, may have formed in his mind an exemplar 
of the individuaPs handwriting, so that, upon the 
presentation of a signature, he can say, by compar- 
ing it with the exemplar in his mind, whether it corre- 
sponds or not with such exemplar. According to 
the other method, a witness who has no personal 
knowledge of another's handwriting, and therefore, 
no exemplar in his mind, has before him in juxta- 
position the writing in dispute with other writings 
admitted or proved to be genuine, and from a com- 
parison of such writings expresses an opinion whether 
the writings were made by the same person. The 
first is the comparison which the ordinary witness 
makes, when testifying from personal knowledge. 
The second is the comparison which an expert makes, 
testifying without personal knowledge . 

In France, papers admitted to be genuine, and 
writings of a public nature, such as signatures writ- 
ten in the presence of a notary or judge, or written 
or signed in a public capacity, are submitted to 

1 Eisfleld ▼. DilU 71 Iowa, 442, 445. But see p. 302. 



310 EXPERT TESTIMONY. 

sworn experts, appointed by the court, for compari- 
son with the disputed writing/ In England, a com- 
parison of handwriting placed in juxtaposition has 
always been permitted in the ecclesiastical courts.* 
But in the common-law courts a different rule was 
adopted, and experts were not allowed in those courts 
to express an opinion based on a comparison of hands 
placed in juxtaposition, 'until the year 1854, when 
Parliament passed an act, hereafter set lorth, which 
authorized such comparison to be made. But in the 
case of ancient documents, so old that they could not 
be authenticated by living witnesses, opinions based 
on a comparison of hands in juxtaposition were 
admitted from necessity, even in the common-law 
courts.* 

In this country a difference of opinion has pre- 
vailed, and some of our State courts have denied, 
while others have maintained the right to introduce 
the testimony of experts based on a comparison of 
writings placed in juxtaposition. But in this coun- 
try, as in England, there has been unanimity in 
holding that such evidence is admissible in the case 
of ancient documents.* 

1 Code ae Procedure Civile, Parti., § 2, tit. 10, § 200. 

•Beaumont v. Perkins, 1 Phllllmore, 78; Belly v. Rivett, Prerog. 
1792, 1 Cases In Eng. £cc. Cts. 43, note a; Heath v. Watts Prierog. 1798, 
Ibid, note b; Saph v. Atkinson, 2 Eng. Ecc. R. 64, 88, 89; Kachin v. 
Grlndon, 2 Cas. temp. Lee, 336; s. c, 2 Addams, 91, note a; 1 Ough- 
ton^R Ordo Judicioruni, tit. 225, De Comparatlone Lltteramm, etc., §§1, 
2,3,10,11(1728). 

< Doe V. Suckermore, 5 Ad. <fc Ellis, 703. 

< Morewood v. Wood, 14 East, 327, note a; Rowe v. Rawllngfs, 7 East, 
282, note a; Taylor v. Cook, 8 Price, 650; Doe v. Tarver, R. A M. 141 ; 
Doe V. Suckermore, 5 Ad. & Ellis, 703, 717, 724. So in Canada, Thomp- 
son V. Bennett, 2 Upper Canada (C. P.) 393, 405, 406. 

B West V. State, 22 N. J. Law, 241, 242; Clark v. Wyatt, 16 Ind. 271; 
Wilson V. Betts, 4 Denio (N. Y.), 201 ; State v. Givens, 5 Ala. 754; Kirk- 
sey V. Klrksey, 41 Ala. 626, 640; Strother v. Lucas, 6 Pet. 763, 767. 



STATUTORY PROVISIONS CONCERNING WRITINGS. 31 1 

We have seen in the preceding section that non- 
professional witnesses, who have personal knowledge 
of the handwriting of a person whose signature is in 
dispute, are competent to testify as to their opinion 
concerning the genuineness of the signature. While 
the opinions of such witnesses are thus received, yet 
the general rule does not permit them to express an 
opinion when the opinion is based solely on a compari- 
son of writings placed in juxtaposition. In States 
where a comparison is allowable it can be made by an 
expert but not by an ordinary witness.* An ordinary 
witness, however, can make a comparison of the 
disputed signature with a writing which he possesses 
and which he personally knows is the writing of the 
person whose signature is in dispute.' But in South 
Carolina the witness, in order to express an opinion 
based on a comparison of hands, need not be a pro- 
fessional expert.' 

^ 131 . statutory Proyisions Concerninflr a Compar- 
ison of Writinys. — All dispute as to the right to re- 
ceive the testimony of experts based on a compari- 
son of hands has been put to rest in England, and 
in some of the States of this country by statutory 
provisions adopted for that purpose. These provis- 
ions differ somewhat, some of them being more re- 
stricted than others. They are as follows : 

England, — * 'Comparison of a disputed writing 
with any writing proved to the satisfaction of the 
judge to be genuine, shall be permitted to be made 
by witnesses, and such writings, and the evidence 

> McKay V. Lasher, 42 Hun (N. Y.), 270: Mixer v. Bennett, 70 Iowa, 
329; Moods V. Crowder, 72 Ala. 79; Hyde v. Woolfolk, 1 Iowa, 169; 
state V. Owen, 73 Mo. 440; Williams v. Conger, 125 U. S. 397, 413. 

• Worth V. MeConnell, 42 Mich. 473, 476. 

* Benedict v. FUnlgan, 18 S. C.606; United States v. Mathlns, 36 Fed. 
Rep. 892, 894. 



312 EXPERT TESTIMONY. 

of witnesses respecting the same, may be submitted 
to the court and jury as evidence of the genuine- 
ness or otherwise of the writing in dispute.*'* 

California, — ** Evidence respecting the handwrit- 
ing may also be given by a comparison, made by 
the witness or the jury, with writings admitted or 
treated as genuine by the party against whom the 
evidence is oflfered or proved to be genuine to the 
satisfaction of the judge/" 

Georgia, — **Other writings, proved or acknowl- 
edged to be genuine, may be admitted in evidence 
for the purpose of comparison by the jury. Such 
other new papers, when intended to be introduced, 
shall be submitted to the opposite party before he 
announces himself ready for trial."* 

Iowa, — ** Evidence respecting handwriting may be 
given by comparison made by experts or by the jurj'^, 
with writings of the same person which are proved 
to be genuine."* 

^ 28 and 29 VictorHi, Cb. 18, § 8. In 1854 a Bimilar provision was 
passed, but it was confined in its operation to the admi88it>n of evidence 
in civil cases. 17 and 18 Vict., ch. 125. But in 1865 the provision was 
made applicable alike to civil and criminal cases. In reference to this 
provision it is laid down as follows : **Under this statutory law it seems 
clear, first, that any writings, the genuineness of which is proved to the 
satisfaction, not of the jury, but of the judge (see Eagan v. Cowen, 30 
Law Times, 223, in Ir. Eic.), may be used for the purpose of compari* 
son, altbough they may not be admissible in evidence for any other pur- 
pose in the cause (Birch v. Ridgway, 1 Fost. & Fin. 270; Cresswcll v. 
Jackson, 2 Fost. & Fin. 24) ; and next, that the comparison may l>e 
made either by witnesses acquainted with the handwriting, or by wit- 
nesses skilled in deciphering handwriting, or, without the intervention 
of any witnesses at all, by the jury themseves (Cobbett v. KilmiDSter, 
4 Fost. & Fin. 490, per Martin, B.), or in the event of there being no 
jury, by the court.*' 2 Taylor's Evidence, § 1668. It is to be observed, 
however, that this statute expressly providies that it is not to apply to 
Scotland. 

« Code of Civil Procedure (1868), § 1944. 

« Revised Code (1873), p. 674, § 3SiO. 

« Code (1873), § 3655; 2 McClain's Annotated Code and Statutes (1888), 
p. 1446, § 4905. 



STATUTORY PROVISIONS CONCERNING WRITINGS. 3l3 

Nebraska . — * * Evidence respecting handwriting 
raay be given by comparisons made by experts or 
by the jury, with writings of the same person which 
are proved to be genuine.''' 

New Jersey. — *'In all cases where the genuineness 
of any signature or writing is in dispute, compari- 
son of the disputed signature or writing with any 
writing proved to the satisfaction of the court to 
be genuine, shall be permitted to be made by wit- 
nesses; and such writings, and the testimony of 
witnesses respecting the same, may be submitted to 
the court or jury as evidence of the genuineness or 
otherwise of the signature or writing in dispute; 
provided, nevertheless, that where the handwriting of 
any person is sought to be disproved by comparison 
with other writings made by him, not admissible in 
evidence in the cause for any other purpose, such 
writings, before they can be compared with the sig- 
nature or writing in dispute, must, if sought to be 
used before the court or jury by the party in whose 
handwriting they are, be proved to have been writ- 
ten before any dispute arose as to the genuineness 
of the signature or writing in controversy."* 

New York. — ** Comparison of a disputed writing 
with any writing proved to the satisfaction of the 
court to be genuine, shall be permitted to be made 
by witnesses in all trials and proceedings, and such 
writings, and the evidence of witnesses respecting 
the same, may be submitted to the court and jury 
as evidence of the genuineness, or otherwise, of the 
writing in dispute.''' 



1 Compiled Statutes (1889), p. 900, § 341. 

• Revison (1877), p. 381, § 19. 

* Laws of 1880, ch. 86, p. 141. 



314 EXPERT TESTIMONY. 

Oregon. — '^Evidence respecting the handwriting 
may also be given, by a comparison made by a wit- 
ness skilled in such matters, or the jury, with writ- 
ing admitted or treated as genuine by the party 
against whom the evidence is offered."* 

Rhode Island. — *' Comparison of a disputed writ- 
ing with any writing proved to the satisfaction of 
the judge to be genuine, shall be permitted to be 
made by witnesses, and such writings, and the evi- 
dence of witnesses respecting the same, may be sub- 
mitted to the court and jury as evidence of the gen- 
uineness, or otherwise, of the writing in dispute."* 

Texas. — '*It is competent in every case to give evi- 
dence of handwriting by comparison, made by ex- 
perts or by the jury; but proof by comparison only 
shall not be sufficient to establish the handwriting 
of a witness who denies his signature under oath."* 

Wisconsin. — '* Comparison of a disputed writing, 
with any writing proved to the satisfaction of the 
court to be genuine, shall be permitted to be made 
by witnesses in all trials and proceedings; and such 
writings and tjie evidence of witnesses respecting 
the same may be submitted to the court and jury as 
evidence of the genuineness or otherwise of the writ- 
ing in dispute."* 

In the large majority of the States this question 
is not regulated by statute, but is determined by the 
courts according to their views of the common law. 

§ 132. Proof under the Statutes. — It will be no- 

1 Hill's Ann. Laws (1887), vol. 1., § 766. 

* Public Statutes (1882), p. 588, § 42. 

•Revised Statutes (1879), Code of Crlm. Procedure, Art. 754. And 
see Heard v. State, 9 Tex. Ct. of App. 1, 19; Phillips v. State, 6 Tex. 
Ct. of App. 331 ; Hatcli v. St.ite. 6 lb. 384; Eborn v. Zimmerman. 47 Tex. 
503. 

< Sanborn & Berrym m's Ann. Stat. (1889), vol. 2, p. 2157, § 41d9a. 



PROOF UNDER THE STATUTES. 315 

ticed in reference to the above statutory provisions 
that in some it is provided that the writing shall be 
proved genuine '* to the satisfaction of the court'' 
or '* of the judge," while in others the provision 
simply is that a comparison can be made with writ- 
ings *' proved to be genuine." Under this last pro- 
vision the New York court says it seems that the 
proof is addressed to the jury.* But we do not so 
understand it. In those States where a comparison 
of writings is allowed, independently of statutes, 
with writings proved to be genuine, the question of 
proof is addressed to the court.* And we see no 
reason for any distinction between the two classes 
of cases. 

When the statutes permit a comparison with any 
writing proved to the satisfaction of the court to be 
genuine, it is evident that the proof of genuineness is 
not only addressed to the court, but that it is analo- 
gous to evidence tending to prove the competency 
of one who is called as an expert and the like. And 
the New York court has consequently held that inas- 
much as the evidence is addressed to the court, error 
cannot be alleged in respect to it." The manner 
of proving the genuineness of the writing in that 
State seems to rest exclusively in the judgment of 
the trial court.* 

Under the code of Iowa allowing a comparison 
with writings ''which are proved to be genuine," the 
court has held that a comparison could not be made 
with a certificate of acknowledgment to a mortgage 
purporting to be executed by the person whose 

> See Hall v. Van Vranken, 28 Hun, 403, 406. 

* See section 138. 

« Hall V. Van Vninken, 28 Hun, 403. 

* McKay v. Laaher, 50 Hun, 3&S; Peck v. Callaghan, 95 N. Y. 73. 



316 EXPERT TESTIMONY. 

handwriting was in dispute. And this ruling was 
made notwithstanding a statute declaring that 
*' every instrument in writing affecting real estate, 
which is acknowledged or proved and certified, may 
be read in evidence without further proof." The 
standard of comparison must be proved to be genu- 
ine. In the course of the opinion it is said : '' The 
court is not prepared to adopt the suggestion that 
the standard writing may be proved by witnesses 
who have only seen the party write, for this is, in 
effect, fixing the standard by comparison ; it is sup- 
porting a probability by a probability. Two obvi- 
ous methods of proving the standard writing, are, 
first f by the testimony of a witness or witnesses who 
saw the party write it ; and, second, by the party's 
admission when not offered by himself. We do not 
mean to say that these are the only methods, but 
only that the proof must be positive.''* 

The case above cited is thus criticised in the Su- 
preme Court of New York : ' ' An examination of the 
opinion in that case convinces us that it cannot be ta- 
ken as a well-considered expression of the law . Doubt 
is therein expressed, whether a writing used for com- 
parison can be proved by the testimony of witnesses, 
who have only seen the party write; if they have not 
seen him write that identical paper, and the court, 
in that case, does not appreciate the reason of the 
old rule (abolished by the statute under considera- 
tion) which forbade the introduction of writings, 
merely for the purpose of comparison.'" And under 
later Iowa decisions a writing is admissible as a 
standard of comparison when the paper is conceded 
to be genuine, or is such that the other party is es- 

1 Hyde v. Woolfolk, 1 Iowa, 160. 

« Hall V. Van Vranken, 28 Hun, 403, 406. 



COMPARISON BY EXPERTS WITH WRITINGS. 317 

topped to deny it, or belongs to the witness, who was 
himself previously acquainted with the handwriting 
of the party, and exhibits the paper in confirmation 
and explanation of his testimony.' The writing to 
be used as the basis of comparison should be proved 
by direct and positive evidence.* 

^ 133. Comparison by Experts with Writinsrs Ad- 
mittedly Genuine. — We pass on to consider the subj ect 
of a comparison of hands by experts in States where 
there is an absence of statutory provision regulating 
the matter and the subject is determined on common 
law principles. When the genuineness of a writing 
is in issue there seems to be no valid objection 
against allowing experts to examine and compare 
the writing in question with other writings, which 
are legally in evidence for some other purpose than 
that of being compared, and which are conceded to 
be in the handwriting of the person who is alleged 
to have written the writing in issue, or the genuine- 
ness of which he is estopped to deny. It is all but 
universally held that a comparison may be made of 
the writing in dispute with other writings of the 
same person already in evidence for another purpose, 
as well as with those which are admitted by the 
party himself to be genuine. Such writings seem 
to form an unobjectionable basis of comparison. 

The genuineness of handwriting, whenever called 
in question by the one whose writing it purports to 
be, must of necessity be determined by comparison 
of some sort, or by testimony based on comparison^. 
If the opinion of the genuineness of the writing is not 
based on a comparison of it with some other writing 

1 Wilson V. Irish, 62 Iowa, 260. 
« Winch V. Norman, 65 Iowa, 186. 



318 EXPERT TESTIMONY. 

in juxtaposition, it must be based on the conception 
of the handwriting which the witness has retained 
in his mind. In most cases it is far more satisfactory 
to allow the witness to compare the writing in issue 
with other writings of unquestioned authenticity 
than it is to compel him to compare it with the 
standard which he may have formed and retained 
in his mind. The comparison with the former 
will ordinarily be more conducive to the ascertain- 
ment of the truth than will the latter. And if there 
is a science of handwriting then those who are ex- 
perts therein should be allowed to express an opin- 
ion based on comparison of the disputed writing 
with others admitted to be genuine. The rulings 
in the different States where a comparison is allowed 
irrespective of anj^ statutory provision w411 now be 
noticed. 

In Alabama experts may institute comparisons 
between the disputed writing and those admitted to 
be genuine, but the courts will not permit extraneous 
papers to be presented before the jury or court, or 
shown to a witness, as a basis for comparison, though 
the same are admitted to be genuine.^ 

In Arkansas it seems that a comparison may be 
made with writings admitted to be genuine and al- 
ready in the case.* 

In Colorado comparison may be made with papers 
belonging to the files in the cause, or with th ose 
previously received in evidence and which are ad- 
mitted to be genuine.* 

iMoon V. Orowder, 72 Ala. 79, 88; Bestor v. Roberto, 58 Ala. 331; 
Kirksey, v. Kirksey, 41 Ala. 626; ^Bishop v. State, 30 Ala. 40; Criat v. 
State, 21 Ala. 137. 

> Miller V Jones, 32 Ark. 338. 

8 Wllber V. Elcholtz, 5 Col. 240, 243. 



COMPARISON BY EXPERTS WITH WRITINGS. 319 

In Connecticut a comparison may be made with 
writings admitted to be genuine/ And, as we shall 
see in a subsequent part of this chapter, the rule in 
this State allows comparison even with other writ- 
ings. 

In Georgia a comparison of writings is allowed.' 

In Indiana experts may make a comparison with 
papers which ''properly belong in the case, and 
which the party is therefore estopped from denying, 
and those that are admitted to be genuine.'*' That 
court also say: *'In either case the signatures sought 
to be used in comparison, if not to papers in the 
cause, nor in evidence, must be admitted to be gen- 
uine, and the question arises who shall make the 
admissicjn. The appellee insists that if the maker 
of the papers admit the signatures to them to be 
genuine, this is an admission within the meaning 
of the rule. We think otherwise. The admission 
must be made by the party against whom the paper 
is sought to be used, whether he is or is not the 
maker of the paper. A claim that a signature is 
genuine by a party who seeks to use it, is no admis- 
sipn at all.*'* 

In Kansas a comparison can be made with writ- 
ings already properly in evidence, or properly in the 
case for some other purpose, or with writings the 
genuineness of which are admitted, and where cer- 
tain signatures are admitted by the party to be gen- 
uine they may be introduced in evidence for the 

» Tyler v. Todd, 36 Conn. 218. 

s BoKgusY. State, 34 Ga. 275. 

' Hazzard v. Vickery, 78 Ind. 64. 66. And 8t*e Cbance v. Indianapolis, 
etc. R. K. Co., 32 Ind. 473; Burdick v. Hunt, 43 Ind. 386; Huston y. 
Schindler, 46Ind. 40; Sborb v. Kiuzie, 80 Ind. 500; Walker v. Steele, 
121 Ind. 436. 

< Shorb V. Klnzie, 80 Ind. 500, 502. 



320 EXPERT TESTIMONY. 

mere purpose of comparison/ The comparison may 
be made both by experts and the jury.* 

In Maine comparison of hands is allowed;' and, 
as will subsequently appear, the comparison is not 
restricted to writings already in the case, or which 
are admitted to be genuine. 

In Massachusetts a comparison of handwriting 
has always been held proper.* In this State also, 
as will subsequently appear, the comparison is not 
restricted to papers in the case or ' admitted to be 
genuine. 

In Michigan there are several cases in which it has 
been held that a comparison can be made by experts 
with papers already in the case.* And in a case de- 
cided in 1887, the court declared that * 'comparisons 
of this kind can only be made with such writings 
as are legally in evidence for some other purpose 
than that of being compared.*'* But in a recent case 
the court has held that when the plaintiflF, whose 
signature is in dispute, is shown on cross-exam- 
ination certain signatures which he admits to be 
in his handwriting, the signatures thus admitted by 
him to be genuine may be used for purposes of 
comparison.^ The court considered this an excep- 
tion to the general rule that comparison could only 

^ Macomber v. Scott, 10 Kan. 335. And ppp Jo8#*ph v. Bank. 17 Kan. 
256; Abbott v. Coleman, 22 Kan. 260; Ort v. Fowler, 31 Kan. 478. 

« Abbott V. Coleman, 22 Kan. 260, 253. 

3 state V. Thompson, 80 Me. 194; Woodman v. Dana, 52 Me. 9. 

< Hall V. Hupe, 10 Mass. 39; Homer v. Wallis, 11 Mass. 312; Moody ▼. 
Bowell,17 Pick. 490; Richardson v. Newcomb,21 Pick. 315; Cnbot Bank 
V. Russell, 4 Gray, 167: Commonwealth v. Coe, 115 Msiss. 481; Costello 
V. Crowell, 133 Mass, 352; s. C 139 Mass. 588. 

•Vinton v. Peck, 14 Mich. 287,294; Worth v. McConneU, 42 Mich. 
475. 

« People V. Paiker, 67 Mich. 222, 224. 

' Dietz V. Nat. Bank, 69 Mich. 287. See Harvester Co. v. Miller, 7^ 
Mith. 265. 



COMPARISON BY EXPERTS WITH WRITINGS. 321 

be had with papers legitimately in the cause for 
some other purpose. The court said: '*It was open 
to the defense to use any reasonable test of cross- 
examination of his own acts, and if he admitted sig- 
natures which it was claimed were identical in char- 
acter, that fact would be of great importance. He 
could not be taken by surprise by papers which he 
admitted to be genuine; and it is very manifest that 
such admitted signatures would form the best pos- 
sible basis of comparison." 

In Minnesota comparison may be made by experts 
not only with writings already in evidence for other 
purposes, but it may be made with other writings 
admitted to be genuine, although not in evidence 
for other purposes.* 

In Mississippi * and Missouri * a like rule is recog- 
nized. 

In the latter State it has been held, however, that 
an expert cannot express his opinion as to the gen- 
uineness of a note sued on by comparing it with the 
signatuj^e of the defendant in his plea of non est 
factum. The reason was that the defendant might 
have disguised his writing intentionally.* 

In New Hampshire the comparison of hands is al- 
lowed, and as we shall see subsequently, is not re- 
stricted to papers already in evidence for another 
purpose, or to those conceded to be genuine.* 

In New York, prior to the enactment of the stat- 
ute already referred to, it was held to be competent 

^ Moirisoo V. Porter, 36 Mion. 425. 

* Wilson V. Beauchamp, 60 Miss. 24. 

> State V. Scott, 45 Mo. 302; State y. ClintOD, 67 Mo. 380; Springer v. 
Hall, 83 Mo. 693; Rose v. First Nat. Bank, 91 Mo. 399. 

< Springer v. Hall, 83 Mo. 693, 697. 

« State V. Hastings, 53 N. H. 452; Bowman v. Sanborn, 25 N. H. 110; 
Reed y. Spaulding, 42 N. H. Ill, 121; State y. Shinborn, 46 N. H. 497. 

(21) 



322 EXPERT TESTIMONY, 

to allow comparison to be made by experts with 
other specimens of the party's handwriting, which 
had been admitted in evidence for other lawful pur- 
poses on the trial, but not competent to introduce 
such specimens for the sole purpose of comparison.* 
And in a recent case in that State where the defend- 
ants offered to show by expert testimony, that the 
note in question and a letter admitted by the plaint- 
iff to be in her handwriting were both in the same 
handwriting, the court held it to be inadmissible. 
It said: ''Comparison of handwriting is only admis- 
sible between the disputed writing in question and 
the genuine handwriting of the person purporting 
to be the writer of the disputed writing.'" 

In North Carolina an expert has been allowed to 
make a comparison of the disputed signature with a 
deposition already in evidence,* but the courts of 
this State will not allow a comparison of hands to be 
made by the jury.* 

In Ohio a comparison of hands is allowed, and is 
not restricted to papers already in evidence or con- 
ceded to be genuine.* 

In South Carolina a somewhat peculiar doctrine 
prevails as to a comparison of hands, and the doc- 
trine of that State on the subject is subsequently 
considered.* 

In Texas we have seen that the statutes make pro- 

1 Miles v.Loomis, 75 N. Y. 288; Peck v. Callahan, 96 N. Y. 73, 75. 

< Bruyo v. Russell, 62 Hun, 17, 21. 
» Yates V. Yates, 76 N. C. 142. 

< Fuller V. Fox, 101 N. C. 119; Turtle v. Rainey, 98 N. C. 513; Bur- 
ton V. Wilkes, 66 N. 0.604; Watson v. Davis, 7 Jones, 178; Oteyv. 
Hoyt, 3 Jones, 407; Outlaw v. Hurdle, 1 Jones, 160; Pope v. Askew, 1 
Ired. 16. 

s Calkins v. State, 14 Ohio St. 222; Hicks v. Person, 19 Ohio, 427; 
Koons V. State, 36 Ohio St. 196. 
> See section 135. 



COMPARISON BY EXPERTS WITH WRITINGS. 323 

vision for a comparison of hands in criminal cases, 
but the provision does not extend to ci^ril cases. 
The courts of the State hold, however, that in civil 
cases a comparison may be made by experts with 
papers already in the case and admitted to be gen- 
uine, or with those the genuineness of which the 
party is estopped to deny.^ 

In Vermont a comparison of hands is allowed, and 
is not restricted to papers already in evidence, or 
admitted to be genuine.' And such is the rule in 
Virginia.* 

In the Federal Courts a comparison of hands is 
allowed to be made. The leading case in the Su- 
preme Court of the United States is that of Strother 
V. LucaSf^ in which the general rule was stated to be 
''that evidence by comparison of hands is not ad- 
missible, when the witness has had no previous 
knowledge of the handwriting, but is called upon 
to testify merely from a comparison of hands.*' But 
the Supreme Court in Moore v. United States,^ and in 
Williams V. Conger* recognize the principle that a 
comparison can be made in cases where the paper 
used as a standard is admitted to be in the handwrit- 
ing of the party, or where he is estopped from de- 
nying it to be so. 

§ 134. Comparison by Experts of Writings in Jux- 
taposition Kot Allowed in Some States. — ^We have seen 
in the preceding section that a comparison of the 

1 Kennedy v. Upshaw, 64 Tex. 412; Smyth v. Caswell, 67 Tex. 573; 
Wagoner v. Ruply, 69 Tex. 700. 

• Rowell V. Fuller, 59 Vt. 688. And see Sanderson v, Osgood, 52 Vt. 
309. 

» Hanriot v. Sherwood, 82 Va. 1. 

* 6 Pet. 763 (1832). 
«91U. S. 270, (1875). 

« 125 U. S. 397, 414, (1887). 



324 EXPEBT TESTIMONY. 

writing in question with other writings already in 
the case, or admitted to be genuine, is generally 
recognized in the courts of this country. But in a 
few States a comparison of writings in juxtaposition 
cannot be made by experts, opinions based on such 
a comparison by them being rigidly excluded. Such 
a principle is recognized in the courts of Pennsyl- 
vania. The language of that court on this general 
subject is as follows : 

''1st. That evidence touching the genuineness 
of a paper in suit may be corroborated by a compar- 
ison, to be made by the jury, between that paper and 
other well authenticated writings of the same party. 

''2d. But mere experts are not admissible to 
make the comparison, and to testify their conclu- 
sions from it. 

" 3d. That witnesses having knowledge of the 
party's hjsindwriting ai'e competent to testify as to 
the paper in suit ; but they, no more than experts, 
are to make comparison of hands, for that were to 
withdraw from the jury a duty which belongs appro- 
priately to them. ^ 

' ' 4th. The test documents to be compared should 
be established by the most satisfactory evidence be- 
fore being admitted to the jury. 

" 5th. That experts may be examined to prove 
forgery or simulated writings, and to give the con- 
clusions of skill in such cases as have been men- 
tioned, and their like." ^ 

In Tennessee the courts appear to have gone even 
further and to have held that a comparison will not 
be permitted to be made either by jury or witnesses.' 

1 Travis v. Brown, 43 Pa. St. 9, 17, 18. And see Foster v. CoUner, 107 
Pa. St. 305; BerryhiU v. Rirchner, 06 Pa. St. 489. 
* Clark y. Bhodes, 2 Heisk. 206. 



COMPARISON BY EXPERTS WITH WRITINGS. 325 

In Kentucky a comparison by the jury, with or 
without the aid of experts, is not recognized/ The 
Court of Appeals in the case last cited make the 
following comment on the rule adopted in that State : 
'* In view of the necessarily uncertain character of 
such expert testimony, and the fact that as the media 
of evidence are multiplied the chances of mistake are 
increased, we regard this as the correct rule ; but we 
must not be understood as holding that an expert 
may not testify as to differences in the letters or 
words, or speak of other facts as they appear to him 
upon the face of the writing." 

In Illinois the genuineness of a signature cannot 
be proved or disproved by comparing it with another 
signature admitted to be genuine.' It has, however, 
been held in that State that, on cross-examination, 
where the object is not to prove a signature by com- 
parison, but simply to tell the accuracy of the ob- 
servation and memory of the witness, it is compe- 
tent to show him a signature as to the genuineness of 
which there is no question, and examine him in re- 
spect to the genuineness of such signature.' 

In Maryland a comparison of hands is not al- 
lowed.* In a recent case in that State, where wit- 
nesses who had frequently seen the person write 

1 Fee y. Taylor, 83 Ey. 259, 263 (1885). 

« Jumpertz V. Pepple, 21 Dl. 375; Kernin v. Hill, 37 ni. 209; Melvin v. 
Hodges, 71 ni. 422; Massey v. Farmers' Nat. Bank, 104 111.327,332; 
Snow ▼. Wiggin, 19 ni. App. 542; Gitchell ▼. Ryan, 24 App. Ct. 375. 
In BrobBton y. Cahlll, 64 Ul. 358, the court undertakes to distinguish 
Jumpertz v. People^ supra, and to hold that comparison can be made with 
genuine writings already in the case for another purpose. But in Jum- 
pertz y. People and in other cases the papers sought to be used as a 
standard were already in the case for other purposes. 

< Melyin y. Hodges, 71 HI. 422; Gitchell y. Byan, 24 App. Ct. 375. 

* Smith y. Walton, 8 Gill, 86; Killer y. Johnson, 27 Md. 6; Tome y. 
Parkersburg, etc. B. R. Co., 39 Md. 36, 90; Herrick y. Swomley, 56 Md. 
440. 



326 EXPERT TESTIMONY. 

were testifying, it was held that, on cross-examina- 
tion, counsel, for the purpose of refreshing their 
memories, might exhibit to them certain signatures, 
which the party admitted he had written, and ask 
them whether after examining such signatures they 
were still of the opinion that the signature was not 
genuine. This the court said was no infringement 
of the rule against comparison of hands.* 

And in New Jersey and Rhode Island, prior to the 
enactment of the statutory provisions already set 
forth allowing a comparison to be made, their courts 
held a comparison of writings placed in juxtaposi- 
tion to be improper.' 

$ 135. Comparison in Doubtful Oases —" The In- 
termediate Theory of the South Carolina Courts* — 
Between the cases which allow a comparison to be 
made with writings either admitted or proven genu- 
ine, and those which deny in any case the right to 
make a comparison, stands what in South Carolina 
the courts have called a ''medium" doctrine. The 
rule in- that State is that when it is necessary to prove 
the authenticity of a writing it may be done by the 
testimony of one who was present and saw the writ- 
ing executed, or by the testimony of those who are 
acquainted with the writing of the party in ques- 
tion, but a comparison of writings in juxtaposition 
is not in the first instance allowed. If, however, 
the proof adduced leaves the question of authentic- 
ity doubtful, then proof by comparison will be al- 
lowed. The question whether the evidence is so 
doubtful as to admit this supplemental testimony 
must be determined in the first instance by the pre- 
siding judge, but the question is not entirely of dis- 

1 National Bank y. Armstrong, 66 Md. 113, 116. 

« West V. State, 22 N. J. Law, 241,.242; Kinney v. Flynn, 2 R. I. 319. 



RIGHT OF COMPARISON WITH WRITINGS. 327 

cretion with him, his decision being subject to review 
in the appellate court. In the language of that 
court, however, '* the case should be a very strong 
one and the error of the judge very patent," to war- 
rant the court in. overruling his judgment.^ This 
doctrine seems peculiar to that State. 

^ 136. The Bisrht of Comparison with Writings 
Proven Genuine for the Purpose— Denied.^The de- 
cided weight of authority in this country establishes 
the principle that a comparison of handwriting by the 
juxtaposition of irrelevant writings with the one in 
issue is not permissible in cases where the irrelevant 
writing is not admitted to be genuine. A writing, 
otherwise irrelevant, cannot, according to the weight 
of authority, and in the absence of a statute provid- 
ing otherwise, be proven genuine simply for purposes 
of comparison. 

The objections to the introduction of specimens 
of handwriting not admitted to be genuine and not 
otherwise in the case, are succinctly stated by the 
Supreme Court of Kansas, and laay be repeated here 
in this connection : '* The principal, if not the only 
objecticJhs 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 practiced in the selection of the 
writings. 3d. The other party may be surprised ; 
he may not know what documents are to be pro- 
duced, and therefore he may not be prepared to meet 
the inferences sought to h& drawn from them. 
4th. The handwriting of a person maybe changed 
by age, health, habits,'state of mind, position, haste, 
penmanship, and writing materials. 5th. The genu- 

1 Benedict v. Flani^n, 18 S. C. 506. And 8ee Bowman v. Plunkett, 2 
McO. 518; Bird v. Millar, 1 McH. 125; Bennett v. Matthews, 5 S. 0.478. 



328 EXPERT TESTIMONY. 

ineness of the specimens of handwriting oflfered 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." ^ 

The cases in which it has been held that such a 
comparison is not allowable may^be found in the 
note below.' 

^ Macomber v. Scott, 10 Kan. 339. See, too, Miles v. Loomis, 75 N. 
Y. 288, 296. 

* Alabama, -^n\der v. Burks, 84 Ala. 63; Morris ▼. Crowder, 72 Ala. 
79; Kirksey y. Kirksey, 41 Ala. 626. And see Little v. Beazley, 2 Ala. 
210; State v. Glvene, 6 Ala. 750; Bishop y. State, 30 Ala. 40; Bestor y. 
Boberts, 58 Ala. 331. 

Arkansaa.— In Miller v. Jones, 32 Ark. 338, it was decided that papers 
not already in eyidence could not be laid before the jury for purposes of 
comparison. 

Georgia, — ^Boggins y. State, 34 Ga. 278; Henderson y. Hackney, 16 Qa. 
525. But in this State such a comparison is now authorized by statutory 
proyision. 

niinais.— Snow y. Wiggin, 19 111. App. 542; Gitchell y. Ryan, 24 Ul. 
App. 372 ; Massey y . Farmers' Nat. Bank, 104 HI. 327 ; Brobston y. Cahill, 
64 ni. 356; Jumpertz y. People, 21 HI. 414; Kemin y. HUl, 37 lU. 109. 

IruUana. — Comparison can be made only with papers otherwise in eyi- 
dence in the case or admitted to be genuine. Hazzard ;y. Vickery, 78 
Ind. 64; Shorb y. Kinzle, 80 Ind. 500. 

JTentttcJby .-—Woodward y. SpiJler, 1 Dana, 180; Bannister y.Weatherford, 
7 B. Mon.' 269; Hawkins y. Grimes, 13 B. Mon. 260; Northern Bank y. 
Buford, 1 Duyal, 335. 

Maryland.— Berrick y. Swomley, 56 Md. 439; Tome y. Parkersburg, 
etc. B.R. Co., 39 Md. 93; Armstrong y. Thurston, 11 Md. 148; Miller y. 
Johnson, 27 Md. 6. 

Michigan,— Dletz y. Fourth National Bank, 69 Mich. 288 ; People y. 
Parker, 67 Mich. 224; Matter of Foster's Will, 34 Mich. 21 ; Howard y. 
Patrick, 43 Mich. 122; Worth y. McConnell, 42 Mich. 473; First Na- 
tional Bank of Houghton y. Robert, 41 Mich. 709; Van Sickle y. People, 
29 Mich. 64; Vinton y. Peck, 14 Mich. 287. 

Jfi^touH.— Rose y. First Nat. Bank of Springfield, 91 Mo. 399; State 
y. Clinton, 67 Mo. 380; State y. Scott, 45 Mo. 302; Dow y. Spenny, 29 
Mo. ?87; State y. Tompkins, 71 Mo. 452; Corby y. Weddle, 57 Mo. 422; 
Springer y. Hall, 83 Mo. 693, 697. 

New Jersey. — ^By statute comparison of hands with writings proyed 
fi^nuineis now allowed in this State, but prior to the enactment of the 



RIGHT OF COMPARISON WITH WRITINGS. 329 

^ 137. The BiiTbt of Comparison with Writinirs 
Proven Genuine for the Purpose— Affirmed. — ^In a 

few States, however, the courts, irrespective of any 
statutory provision authorizing it, have allowed a 
comparison to be made between the writing in issue 
and others proved on the trial to be genuine for the 
express purpose of comparison. They have not re- 
stricted the right of comparison to writings already 
in the case for another purpose, nor to those con- 
ceded to be genuine.' 

statute the rulings of the court were against a comparison of hands. 
West ¥. State, 22 N. J. Law, 212. 

New York,— In this State also a comparison of hands with writings 
proved genuine is now allowed by statute, but before the enactment of 
the>tatute this was not allowed. Hynes v. McDermott, 82 N. T. 41; 
Randolph v. Laughlin, 48 N. Y. 457; Pontius v. People, 82 N. Y. 349; 
Dubois V. Baker, 30 N. Y. 355; Van Wyck v. Mcintosh, 14 N. Y. 439. 

Pennsylvania, — Comparison by experts is not allowed. Foster v. Con- 
ner, 107 Pa. St. 305; Berryhlll v. Klrchner, 96 Pa. St. 489; Travis v. 
Brown, 43 Pa. St. 12; Aumick v. Mitchell, 82 Pa. St. 211; Haycock v. 
Greup, 57 Pa. St. 438. 

Bhode /»iand.— Kinney v. Flynn, 2 B. I. 319. 

Tennessee,— Togg v. Dennis, 3 Humph. 47; Kannon v. Galloway, 2 
Baxter, 231 ; Wright v. Hessey , 3 Baxter, 42 ;Clark v. Bhodes, 2 Heisk. 206. 

Wisconsin, — ^By statute comparison of hands with writings proved gen- 
uine is now allowed In this State, but prior to the enactment of the stat- 
ute the decisions of the courts were against a comparison of hands. 
Hazelton v. Union Bank, 32 Wis. 47; Pierce v.Northey, 14 Wis. 9. 

Federal Courts, —Moore v. United States, 91 U. S. 271; United States 
V. Chamberlain, 12Blatchf . 390; United States v. McMlllen, 29 Fed. Rep. 
247. 

1 ConnecHcut,—'In Tyler v. Todd, 36 Conn. 223, the court say : "In 
this State we allow the disputed signature to be compared with signa- 
tures admitted or proved to be genuine. The triers may compare and 
judge for themselves, and experts may, upon comparison, give their 
opinion. But the signature used as a standard of comparison must not 
only be genuine, but must be admitted or proved to be such before It can 
be nsed.^* And see Lyon v. Lyman, 9 Conn. 56. 

Massachusetts,— CoateUo v. Crowell, 133 Mass. 352 ; Richardson v. Kew- 
comb, 26 Pick. 317; Moody v. Rowell, 17 Pick. 490; Homer v. WaUls, 11 
Mass. 309. 

Mainc—SweetBer v. Lowell, 33 Me. 446; Woodman v. Dana, 52 Me. 9. 

Mississippi.— WlUon v. Beauchamp, 60 Miss. 24; Garvin v. State, 52 
Miss. 209. 



J 



330 EXPERT TESTIMONY. 

And in some States it is now expressly provided 
by statutes that a comparison of a disputed writing 
with any writing proved to be genuine shall be per- 
mitted to be made. It is so provided in California/ 
Georgia,* Iowa,' Nebraska,* New Jersey,* New York,* 
Rhode Island,* and Wisconsin.' 

$ 138. Mode of Proof When Comparison is Al- 
lowed with Writing Proven Genuine for the Purpose. 
— ^In the English statute it is expressly provided that 
the writing offered as a standard, if not admitted 
to be genuine, must be proved genuine to the satis- 
faction of the court. And so it is provided in the 
statute of California, of New Jersey, of New York 
and of Rhode Island. But the statutes of the other 
States contain no such provision. The question is 
then presented whether in such cases the proof of 
the genuineness of the instrument is addressed to 
the court or the jury. In New Hampshire the 
question rests solely with the jury, and if they de- 
termine that the proof is insufficient, it becomes 
their duty to lay the writing, and all the evidence 
of the experts based on its genuineness entirely out 
of the case.* But elsewhere the courts have as a rule 

Kew Hampshire.-^Uite v. Hastings, 63 K. H. 460. 

Ohio.— Ben V. Brewster, 44 Ohio St. 690; Bragg v. Colwell, 19 Ohio St. 
407; Eoons v. State, 36 Ohio St. 198; Pavey v. Pavey, 36 Ohio St. 600. 

Ferwont.— Adams v. Field, 21 Vt. 256; State v. Ward, 39 Vt. 225- 
KoweU V. Fuller, 59 Vt. 688. 

Virginia.— R&nriott v. Sherwood, 82 Va. 1. 

1 Code of Civil Procedure, § 1943. 

« Code, §3840(3787). 

< McClain'ft Ann. Code, § 4905. 

« Compiled Statutes (1881), p. 576, § 344. 
» Rev. Stat., § 19, p. 381. 

< Laws of 1880, ch. 36, p. 141. 

» Public Statutes (1882), p. 588, § 42. 

^ Sanborn & Benyman Ann. Stat. § 4187. 

« State V. Hastings, 53 N. H. 452, 461. 



MODE OF PROOF. 331 

held such proof to be addressed to the court/ and the 
decision of the trial judge on the question of the 
admissibility of the writing as a standard seems to 
be final if there is any proper evidence to support it.* 
In Vermont it was at one time held that the fact that 
the court has adjudged the papers genuine does not 
debar the jury from ultimately determining the ques- 
tion, for themselves.' But a later case seems to 
adopt the contrary principle.* 

The general rule moreover is that the proof of the 
genuineness of the instrument thus oflfered must be 
positive. It should be proved either by the admis- 
sion of the party when the standard is not offered by 
himself, or else by the testimony of persons who 
testify directly and positively to having seen the 
party write the paper.* This was the rule, too, in 
the English ecclesiastical courts, where the maxim 
was: Testis qui poterint deponere, quod viderunt tes- 
tatorem subscibentem hujus modi scriptis, etc.* 

As the Supreme Court of Massachusetts has ex- 
pressed it, the genuineness of a writing, to be used as 
a standard of comparison, '^must be shown beyond 
a doubt.''' 

> Bragg V. ColweU, 19 Ohio St. 412; State v. Ward, 39 Vt. 225; Row- 
ell V. Fuller, 59 Vt. 688. 

* State V. Thompson, 80 Me. 194; Commonwealth v.Coe,115 Mass. 504; 
Oostello Y. Crowell, 133 Mass. 352; Ooetello v. Orowell, 139 Mass. 590; 
Nunesi ▼. Perry, 113 Mass. 276. 

« State V. Ward, 39 Vt. 225. 

4 Ro well V. Fuller, 59 Vt. 688. 

•Hyde v. Woolfok, 1 Iowa, 159; Pavey v. Pavey, 30 Ohio St. 600; 
Calkins y. State, 14 Ohio St. 222, 228; Bragg v. ColweU, 19 Ohio, 412; 
£hom y. Zimpleman, 47 Tex. 503, 518; Koons v. State, 36 Ohio St. 195 
199; Cohen v. Teller, 93 Pa. St. 123, 128. 

*Oughton's Ordo Judiciorum, tit. 225; De Comparatione Lltterarum, 
§ 3 ; Beaumont ▼. Perkins, 1 Phillimore, 78. 

7 Martin v. Maguire, 7 Gray, 177. And see Baker v. Haines, 6 Whar- 
ton (Pa.), 291 ; De Pue v. Place, 7 Pa. St. 429. 



EXPERT TESTIMONY. 

And the court in the case last cited held that it 
could not be shown by producing a paper which had 
been witnessed, and then proving the handwriting of 
the subscribing witness, upon due proof being made 
that such witness resided out of the State. So the 
same court in a subsequent case has held that let- 
ters received from the testator in answer to letters 
to him could not be received as standards.^ Where 
a receipt was offered as a standard, and the witness 
testified that the defendant gave him a receipt that 
looked very similar to the one offered, but could not 
positively say that it was the identical one, the Su- 
preme Court of Ohio held the proof too uncertain to 
admit of the reception of the paper.* 

^ 139. Expert shonld have before Him in Coart 
the Writings Compared. — The rule is that an expert 
in handwriting, when speaking as a witness only 
from a comparison, should have before him in court 
the writings compared.* The reason being that their 
presence is essential to an intelligent examination in 
chief, as well as to an intelligent cross-examination; 
nor can there be any fair means of meeting the testi- 
mony of the witness by that of other witnesses, un- 
less the writings upon which the opinion of the ex- 
pert is based are in court to be presented to other 
experts for their opinion. But where the original 
writing is lost, and the loss has been clearly proved, 
the opinion of an expert has been received as to the 
genuineness of the signature to the lost instrument, 
he having examined the signature prior to its loss, 
and compared his recollection of such signature with 

1 McKeone v. Barnes, 108 Masg. 344. 
•Pavey v. Pavey, 30 Ohio St. 600. 

'Haynes v. McDermott, 82 N.T.41; Woodman y. Dana, 52 Me. 9; 
Spottiswood T. Weir, 66 Ca). 525, 529. 



COMPARISON WITH PHOTOGRAPHIC COPIES. 333 

the admitted genuine signature of the same person, 
on papers already in the case/ And an expert has 
been allowed to testify that entries upon hotel regis- 
ters, which he had seen and examined, were in the 
handwriting of the person who wrote certain other 
signatures, which were produced and proved or ad- 
mitted to be genuine, although the entries were not 
before the jury, the registers having been destroj^ed 
by the person whose signature was in question, for 
the purpose of suppressing the evidence.* So where 
the State, upon an indictment for forgery, was una- 
ble to produce the check alleged to have been forged 
by the prisoner, an expert, called by the State, and 
who had seen the alleged forged check several months 
previously, was permitted to testify as to the genu- 
ineness of the signature, a genuine signature of the 
accused having been shown on the trial.' 

^ 140. Comparison with Photoirraphic Copies*— ' 
It is well settled that for certain purposes photo- 
graphs may be received in evidence. Thus, when- 
ever it is important that the locus in quo should 
be described to the jury, it is competent to intro- 
duce in evidence a photographic view of it.* And 
in cases where questions relating to the identity 
of persons have been raised, photographs have like- 
wise been held admissible.* 

So in an action to recover damages for assault and 

1 Abbott y. Coleman, 21 Kan. 250; Eoods y. State, 36 Ohio St. 195. 

s State y. Shinborn, 46 N. H. 497. 

s Koons y. State, 36 Ohio St. 195. 

♦ Barker v. Perry, 67 Iowa, 146; Locker v. Sioux City, etc. R. R. Co., 
46 Iowa, 109; Dyson v. N. Y., etc. R. R. Co., 67 Conn. 9; BlisB v. John- 
son, 76 Cal. 597; People v. Baddensieck, 103 N. Y. 487; Church y. City 
of Milwaukee, 31 Wis. 513; Randall y. Chase, 133 Mass. 210. See Peo- 
ple's, etc. R. R. Co. y. Green, 56 Md. 84, 94. 

'Brooke v. Brooke, 60 Md. 529; Udderzooky. Commonwealth, 76 
Pa. St. 340 ; Marion y . State, 20 Keb. 233 ; Ruloff y. People, 45 N. Y. 213. 



334 EXPERT TESTIMONY. 

battery committed with a rawhide the plaintiff 
has been allowed to introduce a ferrotj^pe of his 
back taken three days after the injury, the person 
taking the same having testified that it was a 
correct representation/ 

The question arises whether this principle is ex- 
tended to the admission of photographic copies of 
writings so that they may be used for the purpose 
of a comparison of hands. That they may be used 
under certain circumstances will appear as we pro- 
ceed. 

1 . It will be observed, however, that photographic 
copies, like all other copies, are merely secondary 
evidence, and cannot be used as equivalent to pri- 
mary evidence. Thus, in a case in Texas, where an 
attempt was made to introduce in evidence the opin- 
ion of a witness, living in another State, as to the 
genuineness of a disputed handwriting, the opinion 
being based on a photographic copy of the instru- 
ment in dispute attached to the interrogatories, in 
support of the admissibility of the evidence it was 
urged that the court should take judicial notice that 
the photographic process secured a mathematically 
exact reproduction of the original, and that, there- 
fore, evidence as to the handwriting of such a copy 
was as satisfactory as though it referred to the orig- 
inal. The conclusion reached by the court was 
that photographic copies of instruments sued on 
could only be used as secondary evidence, and re- 
jected the testimony on the ground that no founda- 
tion had been l^aid for it.* 

The Supreme Court of Michigan, speaking of this 

1 Reddin v. Gates, 62 Iowa, 210. 
• Eborn v. Zlmpelman, 47 Tex. 503. 



COMPARISON WITH PHOTOGRAPHIC COPIES. 335 

kind of evidence in the Matter of Alfred Foster^ a 
Willj^ decided in 1876, said: '* If the court had per- 
mitted photographic copies of the will to be given to 
the jury with such precautions as to secure their 
identity and correctness, it might not, perhaps, have 
been error. Nevertheless, it is not always true that 
every photographic copy would be safe on any in- 
quiry requiring minute accuracy. Few copies can 
be so satisfactory as a good photograph, but all artists 
are not competent to make siich pictures on a large 
scale, and all photographs are not absolutely faith- 
ful resemblances. It is quite possible to tamper 
with them, and an impression which is at all blurred 
would be very apt to mislead on questions of hand- 
writing where forgery is claimed . Whether it would 
or would not be permissible to allow such documents 
to be used their use can never be compulsory. The 
original, and not the copy, is what the jury must 
act upon, and no device can be properly allowed to 
supersede it. Copies of any kind are merely second- 
ary evidence, and in this case they were intended 
to be used as equivalent to primary evidence in de- 
termining the genuineness of the primary docu- 
ment. ' ' And in a subsequent case in the same court 
this ruling was adhered to and photographic copies 
were held inadmissible, the court saying: '*No 
authority seems to justify the proof of the handwrit- 
ing of obtainable originals by any species of imita- 
tion or copy,'' ' 

In a case where the original papers were on file in 
the War Department, and could not be removed 
without public detriment and inconvenience, Mr. 
Justice Bradley held that photographic copies could 

1 34 Mich. 23. 

> Maclean y. Scripps, 52 Mich. 214, 219. 



336 EXPERT TESTIMONY. 

be received as being the best evidence that the case 
admitted of/ 

The right to make a comparison with photographic 
copies of handwriting has been denied in Maryland,* 
but the force of the case, as an authority on th^ 
point we are considering, is destroyed by the fact 
that a comparison of hands is not permitted in that 
State, the' old English rule being still adhered to. 

2. But when the use of photographic copies is 
not objectionable as being an attempt improperly to 
use secondary evidence as equivalent to primary 
evidence, magnified photographic copies of the 
writing in dispute and of admitted genuine writr 
ings of the same person have been received in evi- 
dence, competent preliminary proof having been 
made that the copies were accurate in all re- 
spects, except as to size and coloring.* In the case 
cited above it is said: '* They (the photographic 
copies) were capable of affording some aid in com- 
paring and examining the different specimens of 
handwriting which were exhibited on trial. It is 
not dissimilar to the examination with a magni- 
fying glass. Proportions are so enlarged thereby to 
the vision that faint lines and marks, as well as the 
genuine characteristics of handwriting, which per- 
haps could not otherwise be clearly discerned and 
appreciated, are thus disclosed to observation and 
afford additional and useful means of making com- 
parisons between admitted signatures and one which 
is alleged to be only an imitation. Under proper 
precautions in relation to the preliminary proof as 
to the exactness and accuracy of the copies pro- 

^ Leathers v. Salver Wrecking Co., 2 Wood, 680, 682. 

> Miller V. Johnson, 27 Md. 36; Tome v. Parkersbnrg, 39 Md. 36. 

' Marcy v. Barnes, 16 Gray, 160. 



COMPARISON WITH PHOTOGRAPHIC COPIES. 337 

duced by the art of the photographer, we are unable 
to perceive any valid objections to the use of such 
proposed representations of original and genuine 
signatures as evidence competent to be considered 
and weighed by a jury/' 

3. The right to permit such a comparison to be 
made is denied, however, in cases where no proof 
has been made as to the manner and exactness of the 
photographic method used.^ In so ruling the New 
York court say: ' 'We may recognize that the photo- 
graphic process is ruled by general laws that are uni- 
form in their operation, and that almost without ex- 
ception a likeness is brought forth of the object set 
before the camera. Still somewhat for exact likeness 
will depend upon the adjustment of the machinery, 
upon the atmospheric conditions and the skill of the 
manipulator. And in so delicate a matter as the 
reaching of judicial results by the comparison of 
writings through the testimony of experts, it ought 
to be required that the witness should exercise his 
acumen upon the thing itself which is to be the basis 
of his judgment ; and still more, that the thing it- 
self should be at hand, to be put under the eye of 
other witnesses for the trial upon it of their skill . 
The certainty of expert testimony in these cases is 
not so well assured as that we can afford to let in the 
errors or differences in copying, though it be done 
by howsoever a scientific process." The objections 
to the jise of photographic copies in such cases were 
very ably stated in a decision excluding the opinions 
based on such evidence, in a case decided some ten 
years before in the Surrogate's Court in the county 
of New York. It was said that such evidence would 

> Hynes v. McDermott, 82 K. Y. 41. 

(22) 



338 ^ EXPERT TESTIMONY. 

raise many collateral issues, as, for instance, the cor- 
rectness of the lens, the state of the weather, the skill 
of the operator, the color of the impression, the 
purity of the chemicals, the accuracy of the focusing, 
the angle at which the original to be copied was in- 
clined to the sensitive plate, etc. ''When we reflect 
that by placing the original to be copied obliquely to 
the sensitive plate, the portion nearest to the plate 
may be distorted by being enlarged, and that the 
portion furthest from the plate must be correspond- 
ingly decreased, whilst the slightest bulging of ther 
paper upon which the signature be printed may make 
a part blurred and not sharply defined, we can form 
some idea of the fallacies to which this subject is lia- 
ble. * * * In what manner can photography 
make the signature, in any practical sense, more ap- 
parent to the observer than the signature itself? 
The operator may, moreover, through fraud or skill, 
make some particular lines in the reproduced signa- 
ture stand forth more prominently than in the orig- 
inal signature. If the photograph be an absolutely 
perfect reproduction of the original signature— the 
former being the same as the latter^there can be no 
necessity for the study of the reproduction. If, 
through the fraud or skill of the operator, some lines 
be brought out with undue prominence, then it 
should not be considered proper evidence on which 
to base an opinion, for it is not a correct reproduc- 
tion."^ 

§ 141. Comparison with Letterpress Copies. — 
As a rule comparison with letter press copies is not 
allowed. A comparison of writings should be made 
with originals if possible, and copies produced by a 

1 Taylor Will Case, 10 Abb. Pr. (N. S.) 300. 



COMPARISON WITH WRITINGS. 339 

press or by a machine, however exact they may be, 
are not regarded as originals. And the right to 
make use of such copies for purposes of comparison 
has been denied on that ground.* 

In a case in California it has been held not only 
that a press copy of a writing is inadmissible until 
the non-production of the original has been accounted 
for, but that an expert cannot testify as to the gen- 
uineness of a disputed writing upon a comparison of a 
genuine writing with a press copy of the writing when 
its genuineness is disputed. The court say: '*This 
was not permissible under any rule with which we 
are acquainted. * * ♦ It would be adding vastly 
to the danger of such evidence, to permit evidence 
to be given from a comparison of genuine writings 
with a press copy of the writing whose genuineness 
is diputed. Indeed, in this very case the expert, on 
cross-examination, testified ' that it would be very 
dangerous to decide on a press copy for sure.' " * 
The Supreme Court of Pennsj^lvania has likewise held 
that letterpress copies cannot be used for the pur- 
pose of a comparison. That court says : ** Here 
there was merely a copy — a press copy, it is true — 
of the nature of a fac'simile, but not necessarily 
exact, as the spreading of the ink in such copies of- 
ten obliterates the fine lines of a handwriting, though 
substantially preserving its original form. It is man- 
ifest such copies would be an unsafe standard. I 
know of no authority for their introduction, and 
upon principle they are inadmissible." ' 

^ 142. ComparisoD with Writingrs made on the 
Trial. — A party cannot be compelled, on cross-exam- 

1 Commonwealth v. Eastman,! Gush. 189, 207. 
« Spottiswood V. Weir, 66 Cal. 525. 
« Cohen v. Teller, 93 Pa. St. 123. 



340 EXPERT TESTIMONY. 

ination, to write his name in court for the purpose 
of having it compared with the disputed writing,^ 
But if he writes his name as requested, it has been 
held that it may be used as a standard of compari- 
son, for the purpose of contradicting him.* Hence, 
in a recent case in Nebraska, where the defendant 
denied the genuineness of a promissory note, and 
called his son as a witness, who testified in chief 
that certain words in the note which his father act^ 
ually gave were written by himself, and on cross-ex- 
amination was requested to write the same words in 
the presence of the jury, it was held that such writ- 
ing could be used for purposes of comparison, the 
party conducting the examination taking the risk 
whether the writing was dissimilar or not.* But a 
party is not entitled to write his signature in the 
presence of the jury for purposes of comparison with 
a signature purporting to be his, the genuineness of 
which he denies.* There are cases, however, which 
show that presiding judges in their discretion have 
ordered or allowed signatures to be written in the pres- 
ence of the jury and to be considered by them.' But 
we are not aware of any case which asserts that a pre- 
siding judge is required by law to allow this to be 
done. He may refuse to permit it to be done when 
the circumstances are such that it does not appear to 
furnish a fair standard of comparison.* And in a 

1 First National Bank of Houghton v. Robert, 41 Mich. 709; Gilbert ▼. 
Simpson, 6 Daly (N. Y.), 30. 

« Cobbett V. Kilminster, 4 Fos. & Fin. 490; Doe v. Wilson, 10 Moore, 
P. C. 602, 530; Chandler v. LeBarron,45 Me. 534. 

« Huff V. Nims, 11 Neb. 364. 

« King V. Donahue, 110 Mass. 155 ; United States v. Jones, 10 Fed. Rep. 
469. 

< Osborne v. Hosier, 6 Mod. 167; Williams' Case, 1 Lewin, 137; Regina 
V. Taylor, 6 Cox C. C. 68. 

* Commonwealth v. Allen, 128 Mass. 46, 50. 



COMPARISON IN OBTHOORAPHY. 341 

case in Alabama it has been held error to permit a 
witness, who confesses to have written the forged 
instrument under the direction and request of the 
prisoner, to write, a similar instrument in the pres- 
ence of the court and jury, for the purpose of com- 
parison.* 

§ 143. WritinflTS Admissible for Comparison in 
Orthoflrraphy. — Although prior to the act of 1854 
writings could not be introduced in evidence in the 
English courts, for the purpose of showing a simi- 
larity in the formation of letters, or figures and modes 
of writing, yet it was held they could be introduced 
for the purpose of proving a particular mode of spell- 
ing. For such a purpose specimens of the party's 
handwriting containing that particular orthography 
were admissible.' A peculiar case of this kind oc- 
curred at the Greenwich County Court. The party 
denied most positively that a certain receipt was in 
his handwriting. It read, ''Received the Hole of 
the above.'* He was asked to write a sentence con- 
taining the word ''whole." He took pains to dis- 
guise his hand, but adopted the above phonetic 
style of spelling, even retaining the capital H.' But 
in Wisconsin the preceding cases not having been 
brought to the attention of the court, a different 
view seems to have been taken of the subject. In 
that case, which was an indictment for arson, the 
prosecution desired to show that a letter, containing 
threats of arson, was written by the prisoner. It 
contained words of a peculiar form, style and or- 
thography, and was repeated to him orally and ver- 
bally by the police officers at the station, who re- 

1 Williams ▼. state, 61 Ala. 33. 

* Brookes ▼. Tichborne, 5 Sxch. 929. 

' Taylor on Evidence, 1552, note a. 



342 EXPERT TESTIMONY. 

quested him to write as they read. The copy thus 
made was found to bean ex^ct facsimile of the orig- 
inal in the peculiarities above noted. The court 
excluded it on the ground that . a comparison of 
hands was not allowable. The letter, however, 
might, perhaps,*have been inadmissible on other 
grounds, as that it was compelling the prisoner to 
give evidence against himself; but this was not 
referred to by the court. 

$ 144. Comparison of Wrttingrs. — - The Bale on 
Cross-Examinatlon as to Ftcttttoas Specimens.— The 
question has been raised whether it is competent on 
cross-examination to test the knowledge of the 
witness by showing him real and fictitious signa- 
tures and asking him to say which of them are 
genuine. In those States where a comparison is only 
allowed to be made with writings which are admit- 
ted to be genuine, it is evident that such a compari- 
son should not be allowed except both parties are 
agreed which of the signatures are real and which 
false, for unless so agreed side issues are raised 
which complicate the case.^ The rule which excludes 
writings not admittedly genuine applies with as 
much force to the cross-examination as to the direct 
examination . To admit such writings would lead, as 
well in the one case as in the other, to an indefinite 
number of collateral issues, and would operate as 
a surprise to the opposite party who would not 
know what writings were to be produced, and there- 
fore could not be prepared to meet them. 

In an action brought in New York upon a prom- 
issory note alleged to be a forgery, an expert by the 
name of O'Neil was, on the cross-examination, shown 

1 Howard v. Patrick, 43 Mich. 121, 128; Rose v. First National Bank 
of Springfield, 91 Mo. 399; Massey y. Bank, 104 111. 327. 



COMPARISON IN ORTHOGRAPHY. 343 

thirty- three signatures and asked which of them 
were genuine signatures and which were forgeries. 
Against the defendant's objection he was allowed to 
pick out certain of the signatures as genuine, and to 
testify that he could not say as to the others, but 
thought that they were genuine. Thereafter a wit- 
ness was allowed to testify that certain of the signa- 
tures which the expert O'Neil had pronounced gen- 
uine were written by him, the witness. This was 
held error, the court saying : *' It was not material 
to the issue to show whether any of those thirty- 
three signatures were genuine or false. * * * It 
is plain the signatures were prepared for the sole 
purpose of testing the skill of witnesses. O 'Neil's 
attention was called to them in the belief that he 
would not be able to pick out the genuine from the 
false. He expressed his opinion. The evidence of 
Williams did not contradict him. It showed his 
opinion was in some respects inaccurate. But how 
was it material whether those thirty-three signatures 
were genuine or not ? The issue was as to the sig- 
natures to the note. Whether O'Neil was right or 
wrong as to the thirty-three signatures it did not aid 
in determining the reaL issue. It was a collateral 
issue, and if, by possibility, O'Neil could have been 
legally permitted or required to answer the ques- 
tion, his answer would have been conclusive upon 
the plaintiff. She could not afterwards call wit- 
nesses to contradict him on that collateral and 
immaterial issue." ^ 

It has been held, however, in the Supreme Court 
of Indiana, that the accuracy of an expert witness 

1 Hilsley v. Palmer, 32 Hun, 472 (1884) . The same ruling wag made in 
Van Wyck v. Mcintosh, 14 N. Y. 439. And see Dietz v. Fourth Na- 
tional BanlE, 69 Mich. 287, 289. 



344 EXPERT TESTIMONY. 

can be tested on cross-examination by asking him 
whether the disputed writing and another not admit- 
ted to be genuine are in the same handwriting/ 
And in that State, as elsewhere appears, comparison 
is only allowable, on the direct examination, with 
writings which are admitted to be genuine. 

$ 145. Detection of Counterfeit Bank Notes. — 
Books known as bank note detectors, are not compe- 
tent evidence as tp the genuineness or worthlessnesa 
of bank bills, neither is the testimony of a witness 
who does not profess to be an expert, admissible 
on the same point.' One who is not acquainted 
with the handwriting of the president or cashier 
of the bank, but who has studied and learned 
the system by which it is believed counterfeit 
bank notes can be detected, and who has such 
knowledge of the marks and devices used in etching 
and engraving as enables him to detect gross coun- 
terfeits, is competent to testify as an expert concern- 
ing the genuineness of bank notes.' So where a wit- 
ness has been in the habit of receiving and paying 
out notes of the bank, and believes that he has 
thereby become acquainted with the handwriting of 
its president and cashier, he is considered qualified 
by his experience to testify as to the genuineness 
of notes purporting to have been issued by the bank/ 
although he has never seen these officers write. 
One who is a bank officer, engaged in banking, and 
a judge of counterfeit money, is competent to give 

1 Thomas v. State, 103 Ind. 419. 

* Payson v. Everett, 12 Minn. 216. 

8 Jones V. Finch, 37 Miss. 468. 

^ Allen V. state, 3 Humph. (Tenn.) 367; Commonwealth v. Carey, 2 
Pick. (Mass.) 47; State y. Candler, 3 Hawk's Law & £q. (N. C.) 393; 
Sasser v. State, 13 Ohio, 453; Hess v. Ohio, 5 Ohio, 6; Kirksey t. Kirk- 
sey, 41 Ala. 626; State v. Allen, 1 Hawk's L. A Eq. (N. C.) 6. 



DETECTION OF COUNTERFEIT BANK NOTES. 345 

his opinion as an expert as to the spuriousness of a 
bank note/ A cashier who has received and passed 
a great number of the notes of the bank in question, 
and believes he can distinguish between a genuine 
and counterfeit note, is competent to give his opin- 
ion as an expert.' The same principle governs in 
the case of tellers.' But bank officers are not the 
only witnesses who are qualified to testify in such 
cases. And it has been said that the opinion of any 
one, who is familiar with the notes of the bank in 
question may be received.* Hence, the testimony 
of merchants, brokers and others, who are in the 
habit of receiving, scrutinizing and paying out the 
notes of the bank, is received as coming from wit- 
nesses whose experience renders them qualified to 
express an opinion.* In New Hampshire it is said 
that a bill may be proved to be a counterfeit by per- 
sons who know the signatures of the president and 
cashier, by having seen the bills in circulation.* Ex- 
perts are allowed to testify as to the false character 
of bank bills, without first proving that the bank 
purporting to issue them had an existence,^ or that 
it had issued genuine bills of which those in ques- 
tion might be counterfeits.' In the case of bills of 
exchange, it has been held that one who had pre- 
sented to the firm many notes which had been paid 
by them, was qualified by his experience to testify 

1 May V. Dorsett, 30 Ga. 116; State v. Hooper, 2 Bailey (S. C.) Law, 
37; Atwood v. Cornwall, 28 Mich. 339. 
« State V. Harris, 5 Ired. (N. C.) Law, 287. 
> Hess y. Ohio, 5 Ohio, 6; Kirksey v. KIrksey, 41 Ala. 626. 

* State ▼. Hooper, 2 Bailey (8. C.) Law, 37; State v. Tatt, lb. 44. 

* state V. Cheek, 13 Ired. (N. C.) 114; Watson v. Cresap, 1 B. Mon. 
(Ky.) 196. 

« state V. Carr, 5 N. H. 369, 373. 
' Jones V. state, 11 Ind. 357. 
« Crawford v. State, 2 Ind. 132. 



346 EXPERT TESTIMONY. 

that, in his opinion, the handwriting of the bill in 
question was the same as that upon the bills which 
the firm had paid/ Although it cannot be considered 
as laying down a correct principle of law, it is worthy 
of note that in an early case in the New York court 
of sessions, it was ruled that experts should not be 
allowed to swear as to the genuineness of bank bills, 
if witnesses could be produced who had seen the 
president and cashier write.* 

^ 146. Besrnlation of such Evidence by Statutory 
Provision. — In some of the States statutory provision 
has been made as to the reception of evidence in the 
cases considered in the preceding section. Such 
provision has been made in Illinois, Indiana, Kan- 
sas, Pennsylvania, and perhaps elsewhere. 

Illinois. — 'Tersons of skill shall be competent to 
testify as to the genuineness of any bill, note or other 
instrument alleged to be forged or counterfeited."* 

Indiana. — ' 'Persons of skill may be called to prove 
the genuineness of a note, bill, draft, or certificate 
of deposit, but three witnesses, at least, shall be re- 
quired to prove the fact, except in the case of a lar- 
ceny thereof, the simple evidence of the cashier of a 
bank purporting to have issued the same may be 
received as sufficient."* 

Kansas. — ** Persons of skill or experts may be 
called to testify as to the genuineness of a note, bill, 
draft, certificate of deposit, or other writing, but three 
witnesses, at least, shall be required to prove the 
fact, except in the case of a larceny thereof, the single 
evidence of the president, cashier, or teller of the 

1 Gordon v. Price, 10 Ired. (N. C.) 385. 
« People V. Badger, 1 Wheeler Or. Gas. 543. 
« Starr & Curtis, Ann. St. (1885), p. 785, § 155. 
« 2 Revised Statutes (1876), p. 396, § 91. 



TESTIMONY AS TO HANDWRITING. 347 

bank purporting to have issued the same, or the 
maker thereof, may be received as sufficient.''^ 

Pennsylvania. — ' 'Upon the trial of any indictment 
for making, or passing and uttering any false, forged 
or counterfeit coin, or bank note, the court may re- 
ceive in evidence to establish either the genuineness 
or falsity of such coin or note, the oaths or affirma- 
tions of witnesses who may by experience and habit 
have become expert in judging of the genuineness 
or otherwise of such coin or jjaper, and such testi- 
mony may be submitted to the jury without first re- 
quiring proof of the handwriting or the other tests 
of genuineness, as the case may be, which have been 
heretofore required by law.'*' 

In Maine it is provided that in the case of forged 
banknotes, etc., if the president or cashier reside 
out of the State, or more than forty miles from the 
place of trial, the opinions of other witnesses may 
be received.' And in Rhode Island it is provided 
that the opinions of skilled persons may be received 
in such cases, provided the persons whose names are 
forged are out of the State, or reside thirty miles* 
distant from the place of trial.* 

^ 147 . The Value of Expert Testimony as to Hand- 
writing. — Any discussion of the subject of expert 
testimony in handwriting would be incomplete if 
it should omit some reference to the value attached 
to that species of testimony. But that subject is 
considered in a subsequent chapter to which the 
reader is referred.* 



1 General Statutes (1889), vol. 2, § 6284. 

« Brightly'B Purd. Dig. (1700-1872), p. 631, § 63. 

s RevUed Statutes (1871), p. 836, § 8. 

* Public Statutes (1882), p. 589, § 44. 

< See chapter 11. 



348 EXPERT TESTIMONY. 



CHAPTER VIII. 

EXPERT AND OPINION TESTIMONY ON QUESTIONS OF VALUE. 



SECTION. 

148. Proof of Value. 

149. The Opinions of Experts on the Question of Value. 

150. The Opinions of Ordinary Witnesses on the Question of Value. 

151. When the Opinions of Witnesses on the Question of Value are 

Inadmissible. 

152. The Competency of the Witness must First be Shown. 

153. Competency in Particular Cases. 

154. Form of Question— Amount of Damages. 

155. The Value of Real Estate. 

156. Value of Personal Property Generally. 

157. Value of Services Generally. 

158. Value of Legal Services. 

159. Value of Services Rendered by Physicians and Nurses. 

160. Value of Annuities. 

161. Value of Foreign Currency and Negotiable Securities. 

§ 148. Proof of Value. — The value of a thing is 
sometimes capable of proof as a fact, but many 
times, and we may even say generally, is provable 
by the opinion of witnesses. But before proceeding 
to a consideration of the principles concerning the 
admissibility of opinions on questions of value, it 
may be well to call attention to certain general rules 
governing proof of value: 

1. If an article has a market value, that usually 
controls as the best evidence of its value. ^ But 

1 Durst v. Burton, 47 N. Y. 167. 



PROOF OP VALUE. 349 

property does not always possess a market value, in 
which cases witnesses may testify as to their esti- 
mate of its value/ 

2. If the question is as to the value of the arti- 
cle at a particular time, evidence of the price for a 
brief periocj before and after the time may be given, 
if it is impracticable to show the value at the pre- 
cise time.' 

3. And if the question is as to the value of the 
article at a particular place, evidence of the price 
of such articles at places not distant, or in other 
controlling markets, can be shown, if it is impracti- 
cable to show the value at the precise place'. 

4. But evidence of the value of the article at 
other places than the place in question cannot be re- 
ceived if its value at the particular place can be 
shown.* 

5. It is usually held that evidence of actual sales 
of like articles can be shown,* the time of sale not 
being too remote. 

6. Evidence of offers to sell like articles, made 

^ Laoning v. Chicago, etc. By. Co., 68 Iowa, 602; St. Louis, etc. R. R. 
Co. v. Chapman, 38 Kan. 307. 

> Cahen v. Piatt, 69 K. Y. 348, 332; Abell v. Munson, 18 Mich. 306; 
Denton v. Smith, 61 Mich. 431. 

> Lowell V. County Commissioners, 146 Mass. 403; Cahen v. Piatt, 69 
N. Y. 348, 362. But the evidence will not be received if the place is too 
distant. In Raridan v. Central, etc. Ry. Co., 69 Iowa, 631, it was un- 
dertaken to prove the value of corn-stalks for winter pasture in a par- 
ticular neighborhood by a witness who knew their value at a place from 
six to nine miles from it, and the court held the witness incompetent. 

* Gregory v. McDowel, 8 Wend. 435. 

' Sawyer v. Boston, 144 Mass. 470; Paine v. Boston, 4 Allen, 168; Tru- 
itt V. Baird, 12 Kan. 420; Gilpin v. Consequa, 3 Wash. 184; Northwest 
Fuel Co. V. Mahler, 36 Minn. 166; St. Louis, etc. R. R. Co. v. Haller, 82 
m. 208; Colbertson, etc. Provision Co. v. Chicago, 111 Dl. 651; Wash- 
burn V. Milwaukee, etc. R. R. Co., 59 Wis. 364; Cherokee v. S. C, etc. 
Co., 52 Iowa, 279. But see Pittsburg, etc. R. R. ^o. v. Patterson, 107 
Pa. St. 461, 464. 



350 EXPERT TESTIMONY . 

by dealers in the ordinary course of business, is ad- 
missible to prove market value/ And it may be 
shown as against the owner what he has offered to 
take for the property, provided the offer was not by 
way of compromise.' But the awner will not ordi- 
narily be allowed to show what he has heesi offered 
for his property." So in proving the value of land, 
evidence as to how much has been offered for adja- 
cent property must as a rule be excluded,* although 
it has been held in Michigan that an offer made in 
good faith by a neighbor to give a certain sum for 
the land in question is admissible.* 

7. In determining the value of property it is al- 
lowable to show what the property cost,* or was sold 
for,^ even at an auction sale.* 

8. Market values may be proved by reference to 
market reports published in the daily papers of the 
market city.* But it has been held that a witness 
cannot be permitted to testify to a knowledge of 
the market value of a commodity in a distant place, 

? Harrison v. Glover, 72 N. Y. 451. 

> Springfield v. Schmook, 68 Mo. 394. 

> Fowler v. County Commissioners, 6 Allen, 92; Dickenson v. Fitch - 
burg, 13 Gray, 546; Watson v. Milwaukee Ry. Co., 67 Wis. 332; Central 
Pacific B. R. Co. Y. Pearson, 35 Cal. 247; St. Joseph, etc. R. R. Co. v. 
Orr, 8 Kan. 419. 

* Concord R. R. Co. v. Greeley, 23 N. H. 237; Perkins t. People, 27 
Mich. 386; Lehmicke v. St. Paul, etc. R. B. Co., 19 Minn. 464; Davis v. 
Charles River Branch R. R. Co., 11 Cush. 606. 

^ Jackson v. Armstrong, 50 Mich. 65. 

6 Boggan V. HoruQ, 97 N. C. 268; Small v. Pool, 8 Ired. (N. C.) 47; 
McPeters v. Ray, 85 N. C. 462; Ham v. Salem, 100 Mass. 360; St. Louis, 
etc. R. R. Co. V. Smith, 42 Ark. 265; Hazen v. Smiley, 28 Kan. 278. 

^Atwood V. Bearss, 46 Mich. 469; Greeley v. Stilson, 27 Mich. 153; 
Jennings v. Prentice, 39 Mich. 421 ; Thompson v. Moiles, 46 Mich. 42; 
Buford V. McGetchie, 60 Iowa, 298; Clements v. Burlington, etc.R.R. 
Co., 74 Iowa, 442. 

8 Smith V. Mitchell, 12 Mich. 180; Dyer v. Rosenthal, 46 Mich. 588. 

> Sisson V. Cleveland, etc. R. R. Co., 14 Mich. 489 ; Peter v. Thickstun , 
51 Mich. 689. 



OPINIONS AS TO VALUE. 351 

when his information is solely derived from read- 
ing the market reports in a newspaper published at 
a remote point/ 

$ 149. The Opinions of Experts on the Question 
of Value. — The opinions of experts are received in 
evidence on the question of value.' '*It is every- 
day 's practice/' said Mr. Chief Justice Nelson of 
New York, ''to take the opinion of witnesses as to 
the value of property — persons who are supposed to 
be conversant with the particular article in question, 
and of its value in the market: as a farmer, or dealer 
in, or person conversant with the article, as to the 
value of lands, cattle, horses, produce, etc. These 
cases all stand upon the general ground of peculiar 
skill and judgment in the matters about which opin- 
ions are sought.'" 

This rule, however, did not commend itself 
to the courts of New Hampshire, and the prac- 
tice there was to exclude the opinions of wit- 
nesses on questions of value, in cases where it 
was customary in the courts of other States to un- 
hesitatingly receive them, provided only, the wit- 
nesses were duly qualified to testify in relation to 
the subject of inquiry. For example, the practice 
in that State was to exclude the opinions of witnesses 
as to the value of real estate, irrespective of any 

1 Fairley v. Smith, 87 N. C. S67. 

s Brown v. ProYidence & Springfield R. R. Co., 12 R. I. 23S; Buffum 
V. If. Y. Cent., etc. R. R. Co., 4 R. I. 221 ; Forbes v. Howard, 4 R. I. 366; 
Canning v. Hannibal, etc. R. R. Co., 54 Mo. 385; Hough y. Cook, 69 HI. 
381; Shaw v. City of Charlestown, 2 Gray (Mass.), 109; Edmonds v. 
City of Boston, 108 Mass. 535 ; Dickenson v. Fitchburg, 13 Gray (Mass.) , 
546; Cobb v. City of Boston, 109 Mass. 438; Burger v. Northern Pacific 
R. R. Co., 22 Minn. 343, 347; Crawford v. Wolf, 29 Iowa, 568; Tebbetts 
y. Haskins, 16 Me. 283, 289; Sexton v. Lamb, 27 Kan. 426. 

• Lincoln v. Saratoga, etc. R. R. Co., 23 Wend. 425, 433. 



352 EXPERT TESTIMONY.' 

question as to their qualifications/ The exclusion 
was based on the assumption that the ordinary value 
of land of a particular description, within the county, 
was a matter of public notoriety, and was, there- 
fore, such a question as the jury, required by stat- 
ute to be composed of freeholders, would be fully 
conversant with, and abundantly able to decide. So 
in the same State the courts have held that there 
was nothing in the study, or ordinary observation 
of horses which entitled a witness to be introduced 
as an expert as to their value.' This practice of ex- 
cluding opinions in such cases was found not to 
work well, and was embarrassing to the jury, as well 
as prejudicial to the rights of the parties interested 
in the litigation. The legislature accordingly inter- 
fered, and provided as follows: ''The opinions of 
witnesses as to the value of any real estate, goods 
or chattels, may be received as evidence thereof, 
when it appears to the court that they are qualified 
to judge of such value/'" 

§ 150. The Opinions of Ordinary Witnesses on the 
Question of Value. — The opinions of ordinary wit- 
nesses may also be received in evidence on questions 
of value. It is not necessary that the witness should 
be an expert to testify as to value, but it may be 
proved by the opinion of any witness possessing 
knowledge on the subject.* The opinions of persons 
acquainted with the value of property are sometimes 

1 Rochester v. Cheeter, 3 N. H.364; Petterborough v. Jaffrey, 6 N, H. 
462 ; Hoitt v. Houlton, 1 Foster, 586 ; Marshall v. Columbian Matnal 
Fire Ins. Co., 7 Foster, 157. 

« Robertson v. Stark, 15 N. H, 109; Low v. Connecticut, etc. R. R.Co.> 
45 N. H. 370, 381. 

> General Laws of New Hampshire (1878), p. 532, § 23. 

* Central R. R. Co. v. Wolf, 74 Ga. 664; San Diego Land, etc Co. v. 
Neale, 78 Cal. 63, 76; Terre Haute, etc. R. R. Co. v. Crawford, 100 Ind. 
530; Alt V. California Fig, etc. Co., 19 Xev. 118. 



INADMISSIBILITY OF OPINION. 353 

received in evidence, although such knowledge may 
not be the result of any peculiar skill in any partic- 
ular branch of business, or department of science/ 
They are received upon the ground of necessity.' 
* 'These opinions are admitted, not as being the opin- 
ions of experts, strictly so called, for they are not 
founded on special study or training, or professional 
experience, but rather from necessity, upon the 
ground that they depend upon knowledge which 
any one maj^ acquire, but which the jury may not 
have, and that they are the most satisfactory, and 
often the only attainable evidence of the fact to be 
proved.' 

A distinguished writer has stated the rule as fol- 
lows: 

* 'Two essentials, therefore, iexist to a proper esti- 
mate of value: 

^' First, A knowledge of the intrinsic properties 
of the thing. 

''Secondly. A knowledge of the state of the mar- 
kets. As to such intrinsic properties as are occult 
and out of the range of common observers, experts 
are required to testify; as to the properties which 

1 Swan V. Middlesex, 101 Mass. 173; Wyman v. Lexlngtoa, etc. R. R. 
Co., 13 Mtjt. (Mass.) 216,326; Dalzell v. City of Davenport, 12 Iowa, 437,. 
440; Whitdeld v. Whitflold, 40 Miss. 352,358; Cantllng v. Hannibal, etc. 
R. R. Co., 54 Mo. 385; Continental Ins. Co. v. Horton, 28 Mich. 173; 
Prlntz V. People, 42 Mich. 144; Richardson v. McGoldrick,43 Mich. 476; 
Keables v. Chri-Jtle, 47 Mich. 595; Whitesell v. Crane, 8 W. & S. (Penn.) 
372; McGiU v. Rowand, 3 Pa. St. 452; MUb v. Wood, 34 Pa. St. 451, 
454; Thatcher v. Kaueher, 2 Col. 698; Cooper v. State, 53 Miss. 393; 
Cooper V. Randall, 59 111. 317, 320; Washington, etc. Co. v. Webster, 68 
Me. 449; Anson v. Dwlght, 18 Iowa, 244; Foster v. Ward, 75 Ind. 594; 
Pittsburg, etc. R. R. Co. v. Rose, 74 Pa. St. 362, 368; Chamness v. 
Chamness, 53 Ind. 304; Sullivan v. Lear, 23 Fla. 463. 

8 Wyman v. Lexington, etc. R. R. Co., 13 Met. (Mass.) 316, 32.; D;il- 
zell V. City of Davenport, 12 I iw.i, 437, 440. 

« Swan V. Middlesex. 101 Ma«. 173, per Gray, J. 

(23) 



354 EXPERT TESTIMONY. 

are cognizable by an observer of ordinary business 
sagacity, being familiar with the thing, such an ob- 
server is permitted to testify.'" 

§ 151. When the Opinions of Witnesses on the Ques- 
tion of Value are Inadmissible. — The rule that the 
opinions of witnesses are admissible on questions 
of value, is inapplicable in those cases in which the 
subject of value is susceptible of specific proof. 
Hence, in a recent case in the United States Court 
of Claims, the court declared that the testimony of 
experts could not be received to show the value of 
a cotton factor's outlays for insurance, freight, re- 
bating, etc., inasmuch as specific proof could be 
given of the outlays actually made by the factor.' 
And in a case in New York where a witness, who 
stated that he knew the effect on fat cattle of getting 
out of an inclosure and wandering about, was asked 
what, in his opinion, would be the shrinkage of cer- 
tain cattle, which he had not seen, resulting from 
such a tramp, it was held that he could not answer. 
The court said: **To admit this was to extend the 
admissibility of evidence by experts too far. There 
could be no difficulty, in this case, in showing the 
actual injury to the cattle which followed their es- 
cape and their wandering about. If they had shrunk 
in weight, or had been injured in appearance, these 
facts could have been proved by those who saw them. 
For these were plain and conspicuous results. To 
prove what is the usual effect of such an escape on 
such cattle is to substitute conjecture for certainty."* 

1 1 Wharton's Evidence, § 447. 

« Patten v. United States, 15 Ct. of CI. 288. See, too, Page v. Hazard, 
5 Hill (N.Y.),603. 
•^ Schernerhorn v. Tyler, 11 Hun, 551. 



INADMISSIBILITY OP OPINIONS. 355 

The object, of course, was to show the depreciation 
in value of th^ cattle. 

The opinions of witnesses will be incompe- 
tent wherever the data upon which the conclu- 
sions of the experts are based, do not have that 
certainty of relation which entitles them to au- 
thority as a law of science. It has, for this reason, 
been held that a conjectural deduction, or general- 
ization, made by experts upon the operation of other 
railroads was incompetent evidence for the purpose 
of showing the worth of the government's right to 
use the plaintifiTs road.* The experts were persons 
specially familiar with railroads and railroad ac- 
counts, and the claimants contended that they had 
proven by them that 20 per cent, of the gross trans- 
portation earnings of a railroad was a reasonable 
and proper deduction for the use of a railroad, and 
that they were, therefore, entitled to recover 80 per 
cent, of their tariff rates. The court refused to con- 
sider the evidence on the ground that, inasmuch as 
railroads differed in their essential features, the data 
were too uncertain to entitle them to authority as a 
law of science. While, on the other hand, it has 
been held that the opinions of witnesses specially 
acquainted with the business of the railroad in ques- 
tion, and of the expenses of operating it, would be 
competent evidence as to the value of the use of the 
particular road during a given time,' yet there may 
be inquiries as to value which, from their very nat- 
ure, cannot be answered by any one as an expert. 
Such would be an inquiry into the value of the re- 
version of land over which a railroad is located; the 



1 AtchlRon, etc. R. R. Co. v. United States, 15 Ct. of CI. 126. 

2 Sturgla V. Knapp, 33 Vt. 486. 



356 EXPERT TESTIMONY. 

value of which necessarily depends on the length of 
' time that the public easement over it may continue. 
As the essential element on which the inquiry turns 
is one in relation to which there has been no experi- 
ence, it follows that an expert could not be heard to 
express an opinion thereon.* 

$ 152. The Competency of the Witness must First 
be Shown. — Whenever it is desired to have the opin- 
ions of a witness on the subject of value, it is al- 
ways necessary, whether the witness is offered as an 
expert or not, to lay some foundation for the intro- 
duction of his opinion, by showing that he has had 
the means to form an intelligent opinion, '^derived 
from an adequate knowledge of the nature and kind 
of property in controversy, and of its value. '** 
Where a witness is produced to testify, in the char- 
acter of an expert, as to the value of property, it 
should appear that he has some special skill or ex- 
perience, or peculiar knowledge of the value of the 
class of property about which it is proposed to ques- 
tion him. 

It is impossible, however, to define with any pre- 
cision the degree of special knowledge which the 
witness should possess in order to render him com- 
petent.' The witness should have peculiar knowl- 
edge of the property and of its value, is the language 

1 Boston, etc. R. R. Co. v. OIJ Colony, etc. R. R. Co., 3 Allen (Mass.), 
142, 147. 

« Whitney v. City of Boston, 98 Maps. 315. In this case it was held no 
error to exclude the opinion of a shoemaker as to the value of land, who 
had hired one of several buildings on the land, occupying the upper 
stories and underletting the lower. And see Cbambovet v. Cagnet, 3 J. 
& S. (N. Y.) 474 ; Halgbt v. Kimbak, 51 Iowa, 13 ; Reed v. Drais, 67 Cal. 
491 ; Daly v. N. W. Kimball Co., 67 Iowa, 132; Russell v. Havden, 40 
Minn. 88. 

8 Bedell v. Long Island R. R. Co., 44 N. Y. 367, 370. 



COMPETENCY OF WITNESSES MUST BE SHOWN. 357 

of the decisions.* 'The evidence of experts is re- 
ceived on the ground of science or skill, and wit- 
nesses may speak on the value of property or labor, 
where it appears they have peculiar sources of knowl- 
edge to guide them on these subjects, and which are 
not presumed to be equally within the reach of the 
jury.'" The matter may be made, perhaps, more 
clear by a reference to some of the cases: 

1. A dealer, in any particular kind of articles, in 
the absence of evidence to the contrary will gener- 
ally be presumed to have sufficient knowledge of the 
value of those articles to qualify him to testify with 
regard thereto.' 

A witness who had experience and knowledge of 
sales by retail of such articles as sugar, whisky, to- 
bacco and ale, and of the losses which, according to 
his own experience in the course of several years, 
were the results of sales of such goods in small 
quantities, has been allowed to testify that it would 
be impossible to realize by small sales the amount 
of the retail prices on the entire quantity of articles 
sold, and to give his reasons therefor, and to testify 
that, as the result of his own experience, his opin- 
ion was that small retail sales of such articles would 
cause, in ordinary cases, a loss of 5 per cent upon 
the total amount of goods so sold.* 

In a case in Iowa it was held that a husband and 
wife, who were the owners of ordinary hpusehold 

» TerpeDoiDg v. Corn Exchange Ins». Co., 43 N. Y. 279. 

• Lamoure v. Caryl, 4 Denio (N. Y.), 373. 

'Lawton v. Chase, 108 Mass. 238; Cantllng v. Hannibal, etc. R. R. 
Co., 54 Mo. 385; Luse v. Jones, 39 N. J. Law, 708; Sturn v. Williams, 
88 N. Y. Sup. Ct. 325; Johnston Harvester Co. v. Clark, 31 Minn. 165; 
Reed v. New, 35 Kan. 727; Ulinois Central R.R. Co. v. Copeland, 24 [11* 
336; Hinckley v. Ker8ting,21 Ul. 247; Burger v. Northern Pacific R. R* 
Co., 22 Minn. 343. 

* M'Fadden v. Murdook, 1 Irish R. (C. L.) 211. 



358 EXPERT TESTIMONY. 

goods, might testify as to the value of such goods 
without proof having been made of their knowledge 
of the value of such goods, the court declaring that 
such knowledge would be presumed.* 

2. It is not necessary that the expert witness tes- 
tifying as to value should have any personal knowl- 
edge of the value of the article in question. Thus, 
a witness who had been a ship-broker and ship-owner 
for years, and who testified that he knew the fair 
market value of ships in the port of New York, has 
been allowed to testify as to the fair market value of 
a certain ship, although his knowledge of her was 
substantially confined to the information he got from 
the general records used in his business and reports 
made therein, by which, he testified, he was always 
guided in buying and selling ships.* 

As experts may testify where they have no per- 
sonal knowledge of the facts in controversy, basing 
their opinions upon the facts which have been testi- 
fied to by other witnesses, so the opinion of an ex- 
pert may be received as to the value of articles sim- 
ilar to one which has been described by witnesses 
having personal knowledge of it, although such ex- 
pert has never seen the particular article in question 
which has been lost or destroyed. " No reason is per- 
ceived why an expert, testifying in respect to value, 
should be governed by a different principle in this 
respect than that which applies to experts testifying 
upon other subjects. 

In a case in Pennsylvania in which this question 
was considered, it was said: ''What is, then, to pre- 
vent a merchant from testifying, in corroboration df 
an invoice, as to values, where no values are given, 

^ Tubbs V. GarriBon, 68 Iowa, 44. 

« Slocovlch V. Orient Mut. Ins. Co., 108 N. Y. 6'J. 



COMPETENCY OF WITNESSES MUST BE SHOWN. 359 

when goods are lost? The fact of the existence or 
loss of the goods is not touched by such testimony. 
That remains to be established by other evidence. 
I think I have known many instances of this kind. 
If a trunk should be packed by a servant incapable 
of placing a value on the wardrobe of his or her 
master or mistress, although able to testify to each 
article and describe its quality, yet wholly incom- 
petent to give the slightest idea of the real value of 
the articles, in case of loss how is the value to be 
ascertained but by the testimony of a tradesman 
acquainted with the value of such articles, based 
upon a description of them? So in regard to furni- 
ture insured, and lost by fire, it can hardly be 
doubted but that it would be competent to fix the 
value by persons acquainted with such matters, and 
competent as such to testify, after its quality had 
been described. If the rule be, that only persons 
who have seen the articles which have been lost can 
give an estimate of their value, then, in all the cases 
suggested, there would be a failure to recover for a 
loss, or the jury would be left to guess at their value. ' " 
Accordingly, a nurseryman has been allowed to 
testify as to the value of trees which had been de- 
stroyed, and which he had not seen, but had heard 
described.' And where the question was as to the 
cost of rebuilding a house which had been burned, a 
contractor and builder of houses, who had the house 
in question described to him in detail, has been al- 
lowed to express an opinion as to its value.' Other 
cases of. similar import have been decided.* 

» Mish V. Wood, 34 Pa. St. 451. 

« Whitbeck v. N. Y., etc. B. R. Co., 36 Barb. (N. Y.) 644. 

« Phoenix Iur. Co. v. Copelaad, 86 Ala. 651. 

* Orr v. Mayor, etc., ii Barb. 106; Miller y. Smith, 112 Mass. 470, 475; 



J 



360 KXPERT TESTIMONY. 

3. When a witness testifies as to the value of 
property from a personal examination which he has 
made of it, the admissibility of his opinion will de- 
pend upon whether the time of examination was so 
remote to the time of inquiry as to have no rele- 
vance to the inquiry. The fact that the knowledge 
which the witness possesses of the property relates 
to its value at an earlier date than the one at issue 
will not render his opinion inadmissible, unless the 
earlier date is so remote as to render his opinion of 
no importance in the inquiry.* 

Thus, in the case above cited, the knowledge of 
the expert related to the value of the property as it 
was six months before he was called upon to testify. 
But the court admitted the testimony, not regarding 
the time as too remote, under the circumstances of 
the particular case. And when the inquiry was as 
to the value of a vessel, and the witness had not seen 
her for five or six years, and since that time $7,000 
had been spent in repairs on her, the lower court 
excluded his testimony on the ground that the. wit- 
ness was not qualified. The Court of Appeals, how- 
ever, said: '* While it would not, we think, have 
been erroneous to receive and submit the evidence 
to the jury for what it was worth, we cannot say, as 
matter of law, that the judge exceeded the bounds 
of a reasonable discretion in holding that the witness 
was not qualified as an expert to give an opinion as to 
the value of the ship at the time she was burned.''* 

Beecher v. Deimison, 13 Gray (Mass.), 354. In Miller v. Smith, $upm^ a 
witness possessing special knowledge and experience was permitteil to 
express ho opinion as to the value of fast trotting horsf s of a certain age, 
size, gate, speed, and other qualities, ulibough be bad not seen the horse 
in question. 

1 Cobb V. City of Boston, 109 Mass. 438. 

« Slocovich V. Orient Mut. Ins. Co., 108 N. Y. 56. 



COMPETENCY IN PARTICULAR CASES. 361 

The time at which the witness saw the prop- 
erty is immaterial, provided it is shown by other 
testimony that the property was in substantially the 
same condition at the time the witness saw it as at 
the time at which its value is to be fixed/ 

It is evident that much must depend on the nat- 
ure of the property. A period of time which would 
not be remote as to real estate might be too remote 
as to personalty, or what would be remote as to realty 
in one part of the country would not be remote in 
another part, where the value of such property 
changes slowly. 

If the witness is produced to testify as to the value 
of services he cannot be permitted to testify until it 
appears, either from his own or other competent ev- 
idence, that he is acquainted with the usual value or 
rate of compensation paid for like services at the time 
when, and place where, the services were rendered,* 
He must be possessed of special knowledge on the 
subject.' 

§ 153. Competency in Particular Cases. — We 
have stated in preceding sections some general rules 
governing the competency of witnesses to testify on 
the subject of value. A reference, however, to some 
particular cases in which the question of competency 
has been raised may perhaps be found helpful : 

The opinion of an author is received as to the 
value of his literary productions, his opinion being 
based on the time and labor employed in the prepa- 
ration of the work.* 

1 Connelly v. Edgerton, 22 Neb. 82. 

• Louisville, etr.,R. R. Co. v. Cox, 30 ni. App. Ct. 380; Larmoure T. 
Caryl, 4 Denio, 370. 

s Sener y. Hoist, 31 Minn. 479. 

• Babcock v. Raymond, 2 Hilton (N. Y.), 61. 



362 EXPERT TESTIMONY. 

An architect is allowed to testify as to the value of 
houses, and, in the case cited, the witness was per- 
mitted to testify as to the depi*eciation in the value 
of buildings in a neighborhood, as caused by a nui- 
sance/ 

An artist may testify as an expert as to the value 
of a picture.' 

A broker is competent to testify as to the value of 
stocks.' 

A carpenter y engaged in buying lumber and build- 
ing houses, is a competent witness as to the value of 
the lumber in a particular house.* And carpenters 
have been permitted to testify as to the value of a 
house which had been destroyed by fire, it appearing 
that they possessed a general acquaintance with the 
house in question, having a knowledge of its shape, 
location, external appearance, and, to some extent, 
its internal condition .* Such persons have also been 
allowed to express an opinion as to the cost of build- 
ing a house in the vicinity of the town where they 
worked, their opinions being based on an examina- 
tion of the plans and specifications of the house.' In 
a recent case in New York, it is laid down that a car- 
penter and builder, an architect, or an insurance 
and real estate agent engaged in appraising similar 
property, would be competent to express an opinion 
as to the value of replacing a house destroyed by fire, 
their opinion being based on knowledge which they 



1 Gauntlet v. Whitworth, 2 C. & K. 720. 

> Houston, etc., R. R. Co. t. Burke, 55 Tex. 324. 

« Jonan v. FerraDd,3 Rob. (La.^ 366. 

* Simmons v. Carrier, 68 Mo. 416 ; Sbepard v. Ashley, 10 Allen (Mass.) , 
642. 

* Bedell v. Long Island R. R. Co., 44 N. Y. 367. 

* Hilld V. Home Ins. Co., 129 Mass. 345. 



COMPETENCY IN PARTICULAR CASES. 363 

had acquired as dealers or builders/ So, too, it has 
been held that a carpenter and builder who had seen 
the buildings in question, and knew the kind and 
quality of lumber put into them, was qualified to 
testify what it was reasonably wqrth to put the lum- 
ber into the buildings.' 

Mechanics and machinists have been allowed to 
testify as to the difference in value of an engine be- 
fore and after an accident which happened to it.' 
Where the question was as to the value of a particular 
threshing machine, a witness who testified that he 
had run a threshing machine for six or eight years, 
and had seen the particular machine in operation, 
was adjudged competent to express an opinion as to 
how much less such machine was worth than other 
machines that would run and do first-class work.* 

But in a case in Minnesota a witness who had no 
knowledge of the market value of machines of the 
kind in question, was held incompetent to express 
any opinion as to its value although he had worked 
the machine.* 

A superintendent of locomotive works, who was 
familiar with the cost of building, rebuilding and re- 
pairing locomotives, and with the value of the mate- 
rials used therein and the labor employed thereon, 
has been permitted to answer the following question: 
''Could the engine (which you have seen) by any 
possibility have been so damaged by wear and tear, 
or by accident that, with the parts or materials as 
testified to by Mr. F., $20,000 would have been a 

i Woodruff V. Imperial Fire Ins. Co., 83 N. Y. 133, 138; 8. C, 10 Infi. 
Law J. 125. See also Tebbettg v. Haskihs, 16 Me. 283. 
« Hough V. Cook, 69 111. 581. 

' Moore v. Township of Eenockee, 75 Mich. 332, 343. 
* Sheldon v. Booth, 50 lows, 209. 
Osborne v. Marks, 33 Minn. 56. 



364 EXPERT TESTIMONY. 

reasonable charge for rebuilding her?' ' * So one who 
had purchased and sold machinery of a peculiar kind, 
and owned and run it, and had made estimates of the 
cost of building such machinery, and had procured 
such estimates of other machinists for the purpose 
of having such machines manufactured, has been 
held competent to testify as to the value of such 
machinery.' And mill-wrights are competent wit- 
nesses as to the value of work done on a mill,* and 
machinists as to the value of particular machinery.* 
Farmers, graziers and drovers have been held com- 
petent to testify as to the value of growth and in- 
crease of weight which certain cattle might reason- 
ably have been expected to attain but for the over- 
feeding of the pasture where they grazed.* A farmer 
has been permitted to testify as to the loss in value 
of a cow by allowing her to become dry.* So he has 
been held competent to express an opinion as to the 
value of a mare of common blood^ and as to the 
value of grass destroyed by cattle.* And a farmer 
living in the neighborhood where certain farm horses 
were sold, who knew their value and the character 
of the work done by them upon the farm and who 
had hired horses to do such work for himself, was 
held qualified to testify as to the value of the use of 
such a team.* Where the value of a blooded stallion 
was in question, a farmer engaged in raising horses 

1 Tyng V. FleldP, 5 N. Y. Sup. Ct. 672. 

> Hasklns y. HamUtoo Mut. Ins. Co., 5 Gray (Mass.), 432. 

' Adams v. Dale, 29 lad. 273. 

* Steam Packet Co. v. Slckela, 10 How. (U. S.) 419; Wlcter v. Burt, 31 
Ala. 33. 

« Gilbert v. Kennedy, 22 Mich. 117. 

• Smith V. Wilcox, 4 Hun, 411. 

^ Brown v. Moore, 32 Mich. 254. 

» Townsend v. Brundage, 6 Thomp. etc. (N. Y.) 527 

» Kennett v. Fickel, 41 Kan. 211. 



COMPETENCY IN PARTICULAR CASES. 



365 



for the market was held competent to testify in re- 
gard to the animal, whether he was acquainted with 
that particular breed of animals or not.* 

Some Miscellaneous Cases, — Persons experienced 
in building railroads may testify what will be, 
in their opinion, the probable cost of complet- 
ing a railroad.' A gunsmith is, by reason of his 
knowledge of fire-arms, a competent witness as to 
the value of a gun.' The opinion of a witness as to 
the value of a franchise granted by a city for the 
construction and operation of a wharf, has been re- 
ceived when his opinion was based upon his own 
experience in constructing and operating a wharf 
under a similar franchise, and his opinion was not 
made inadmissible by the fact that the witness could 
not state its value when considered without refer- 
ence to the ability of the person owning it to build a 
wharf and make business for it.* 

On a trial for the larceny of a seal skin coat the 
only witness who testified as to its value stated that 
he had never seen a seal skin overcoat bought or sold, 
and it was not shown that he had any knowledge of 
the value of such an article except such as any 
man of ordinary intelligence might be presumed to 
have. The prisoner claimed that no legal proof of 
the value of the overcoat had been made. The Su- 
preme Court of Iowa disposed of the objection against 
the prisoner, in language given in the note below.* 

1 Gere v. Council Bluffs los. Co. 67 Iowa, 272. 

« Wttco, etc. R. R. Co. v. Shirley, 45 Tex. 355. 

« Cooper V. State, 53 Mlsa. 393 ; Beecher v. Denniston, 13 Gray (Mass.) , 
354. 

* Sullivan v. Lear, 23 Fia. 463. 

' ^* We do not think, however, that we should be justified in wholly 
discarding his testimony. He might not be a very accurate judge of the 
value of such an article, but we think that, having st-en and examined 



366 EXPERT TESTIMONY. 

In a case in Vermont, an attorney, who was not an 
expert in the use, value, or manufacture of locomo- 
tives, but had made some investigation as to the 
value of the engine in controversy, was allowed to 
testifj^ as to its value/ 

When a farmer testified what in his opinion it 
would cost to repair his house, which had been dam- 
aged by a tornado, but on his cross-examination 
stated that he was no mechanic, and could not tell 
how badly the house was damaged, nor how much 
repairing would be necessary, the court held that on 
motion his opinion should have been excluded.* 

In a proceeding for the assessment of damages 
caused by diverting a stream from flowing through 
a meadow, thereby destroying its possible use for 
the cultivation of cranberries, a witness who had 
never cultivated cranberries, but who knew of a 
cranberry bog and was connected with a company 
interested in cranberry meadows, who thought he 
knew something of cranberry culture, and who had 
seen the meadow in question, was allowed to give 
his opinion as to the value of the water that would 
be sufficient to flood such a meadow, and this al- 
though he had never made any experiments in the 
raising of cranberries, or in the flow of water over 
them.' 

§ 154. Form of Question — ^Amount of DamagrcB-""" 
We find it laid down generally in the authorities, 

the coat, he might form some opinion about it. He doubtless could 
judge with considerable accuracy of the value of such overcoats as are 
in ( ommon use, and he could judge, we think, though perhaps not as 
accurately, how tbis compared in value with the best of such coats. We 
think that his testimony was not inadmissible, and, if not, the verdict 
was not without support." State v. Finch, 70 Iowa, 316. 

1 Railroad Company v. Bixby, 67 Vt. 548. 

' Lewis V. Burlington Ins. Co., 71 Iowa, 97. 

8 Warren V. Spencer Water Co., 143 Mass. 165. 



FORM OP QUESTION. 367 

that on questions as to the amount of damages re- 
sulting from a particular transaction, witnesses, 
whether experts or not, cannot express an opinion 
but are confined to a description of the injuries; it 
being the duty of the jury to estimate the damages 
from the facts proven as to the nature and character 
of the injuries.* 

In the leading case in this country ' it was said 
that the amount of damages is not a matter of 
science upon which opinions may be received in 
evidence, the court adding: 'The amount of indem- 
nity, where it is not capable of b6ing reached by 
computation, is always a question for the jury. If 
there be any rule without exception, it is this; and 
I have been unable to find any instance where the 
opinion of witnesses has been received." This was 
said in 1837 in a case where the question of damages 
rested on very complicated premises. And in 1886 
we find the Supreme Court of Arkansas stating the 
same thing : *' This is one of the few subjects," that 
court says, '* upon which there is absolutely no con- 

» Bain y. Cushman, 66 Vt. 343; Yost v. Conroy, 92 Ind. 464; Central 
R. R. Co. T. Linn, 73 Ga. 705; Burlington, etc. R. R. Co. v. Beebe, 14 
Neb. 463; Little Rock, etc. R. R. Co. v. Haynea, 47 Ark. 497; Fremont, 
etc. R. R. Co. y. Marley, 25 Xeb. 138, 145; Lincoln y. Saratoj^a, etc. R. 
R. Co., 23 Wend. (N. Y.) 433; Dunham y. Simmons, 3 Hill (N. Y.), 
609; Fish y. Dodge, 4 Denio (X. Y.), 311; Thompson y. Dlckhart, 66 
Barb. (N. Y.) 604; Terpennlng y. Corn Exchange Ins. Co., 43 N. Y. 
279; Whitmore y. Bischoff. 5 Hun (N. Y.), 176; Fleming y. Delaware, 
etc. Canal Co., 8 Hun (X. Y.), 358; Eyansyille R. R. Co. y. Fitzpatri. k, 
10 Ind. 120; Sinclair y. Roush, 14 Ind. 450; |f itchell y. Allison, 29 Ind. 
43; Bissell y. Wert, 35 Ind. 54; Ohio, etc. R. R. Co. y. Nickless, 71 Ind. 
271; Piersony. Wallace, 7 Ark. 282; Central Railroad, etc. Co. y. Kelly, 
58 Ga. 107; Wilcox y. Leake, 11 La. Ann. 178; Atlantic, etc. R. R. Co. 
y. Campbell, 4 Ohio St., 583; Cleyeland, etc. R. R. Co. v. Ball, 5 Ohio 
St. 568; Roberts y. Commissioners of Brown Couuty, 21 Kaus. 248; Whit- 
more y. Bowman, 4 Greene (Iowa), 148; Anson y. Dwight, 18 Idwh, 
244. 

« Norman y. Wells, 17 Wend. 136. 



368 EXPERT TESTIMONY. 

flict in the authorities. A witness is never permitted 
to estimate the amount of damages which a party 
has sustained by the doing, or not doing, of a par- 
ticular act." * But in 1882 the Supreme Court of 
South Carolina, in an action for breach of promise 
of marriage, decided that no error was committed in 
allowing witnesses who were intimate acquaintances 
of the plaintiff, who knew her temperament and dis- 
position — her social position and all her surroundings, 
to give their opinion in dollars and cents as to the 
amount of damages w^hich she had sustained.* In 
1871 the Supreme Court of Pennsylvania held no 
error was committed in receiving the opinion of wit- 
nesses as to the amount of damages, and it laid down 
the law as follows : ** As to unliquidated damages, 
the result of an injury complicated in its circum- 
stances, a witness acquainted personally with all the 
facts must be permitted to give his opinion. Such 
matters are difficult of description, very few men be- 
ing gifted with that power of description of complex 
subjects which can picture them to the minds of oth- 
ers, so as to convej^ a true idea of the reality. An 
opinion of total or aggregate loss or value is there- 
fore permitted to go to the jury as some evidence of 
the fact." ' In that case the action was to recover 
damages for an injury to land resulting from an over- 
flow of the same caused by placing obstructions in the 
channel of a river. 

In many cases the question of damages and the 
question of value are identical. The two questions 
are identical whenever the amount of damages de- 
pends wholly on the question of value. Inasmuch 

1 L. R., etc. R. R. Co. v. Haynes, 47 Ark. 497, 601. 

s Jones V. Fuller, 19 S. C. 66. 

5 White Deer Creek luiproyement Co. v. Sa&saman, 67 Pa. St. 415, 42 



FORM OP QUESTION. 869 

as a witness may express an opinion on the question 
of value, it would seem that he should likewise be 
allowed to express an opinion on a question as to the 
amount of damages — whenever that question de- 
pends entirely on a question of value. Hence, in 
condemnation proceedings, where the question is as 
to the damage which will be done to land by the 
construction of a railroad over it, the question of 
damage is identical with the question of its diminu- 
tion in value in consequence of such construction. 
What material difference does it make in such a case 
whether the witness is allowed to state his opinion 
as to the amount of damage, or is asked, first, his 
opinion as to the value of the land before the con- 
struction of the road, and then his opinion as to its 
value after the construction of the road, while the 
jury is left to make the subtraction? And yet on 
this very question the courts have developed a 
decided conflict of authority. 

In many of the States the witnesses are not allowed 
to state their opinion as to the amount of damage 
sustained, but are required to state their opinion as 
to the value of the property before the taking for the 
public use and its value after such taking. It is so 
held in the cases cited below.* But the weight pf 

1 ^Za&ama.— Alabama, etc. R. R. Co. v. Barkett, 42 Ala. 83; Montgom- 
ery, etc. R. R. Co. V. Varner, 19 Ala. 185. 

Georgia. — Brunswick, etc. R. R. Co. v. McLaren, 47 Ga. 546. 

Indiana.— YoBt v. Conroy, 92 Ind. 464; Hagaman v. Moore, 84 Ind. 496; 
New Albany, etc. R. R. Co. v. Huff, 19 Ind. 316; Evansville, etc. R. R. 
Co. V. Fitzpatrlck, 10 Ind. 120. 

/oioa.— Harrison v. Iowa, etc. R.R. Co., 36 Iowa, 323; Cannon v. Iowa 
City, 34 Iowa, 203; Prosser y. Wapello, 18 Iowa, 262. 

Kansas. ^OttSiWfi, eti*. R. R. Co. v. Adolph, 41 Kan. 600; Parsons Water 
Co. V. Knapp, 33 Kan. 752. But see Leayenwarth, etc. R. R. Co. y. Paul, 
28 Kan. 816. 

Michigan.— In this State the witnesses are not allowed to express an 
opinion as to tbe amouiit of compensation wbich should be given. Such 

(24) 



370 EXPERT TESTIMONY. 

authority in the courts of this country seenii? to 
be opposed to the doctrine above hiid <lo\vn, and 
to be in favor of allowing the" witness to express, in 
such cases, his opinion as to the amount of the dam- 
age sustained by the taking.* The cases so holding 
not only conform to the weight of authority but 
are justified on principle. As said in a well con- 
testimony Is said to be '^clearly incompetent.'^ '^That amount/' says 
the court, ^^was the very thiu^ which the constitution refers to the jury, 
and they must malce up their own coDclusions from proper dato." It 
does not appear what data were laid beff>re the jury, or what the court 
considered ^^proper data'' to be. Grand Kapids v. R. R. Co., 58 Mich. 642. 

JVe6ra«A:a.— Fremont, etc. R. R. Co. v. Whalen, 11 Neb. 686; Burling- 
ton, etc. R. R. Co. V. Beebe, 14 Neb. 463; Burlington, etc. R. R. Co. v. 
Schluntz, 14 Neb. 421. But see Republican Valley R. R. Co. v. Arnolds 
13 Neb. 485; Northeast, etc. R. R. Co. v. Frazier, 25 Neb. 53. 

OAio.— Cleveland, etc. R. R. Co. v. Ball, 5 Ohio St. 668; AUantic, etc. 
R. R. Co. V. Campbell, 4 Ohio St. 583. 

Ehode Island.— Brovfny, Providence, etc. R. R. Co., 12 R. I. 238; 
Tiugley v. Providence, 8 R. I. 493. 

1 Opinions as to the amount of damage in such cases will be received 
in the following courts : 

Arkansas, — Texas, etc. Ry. Co. v. Klrby, 44 Ark. 103; St. Louis, etc. 
Ry. Co. v. Andt-rson, 39 Ark. 167; Texas, etc. Ry. Co. v. Eddy, 42 Ark. 
527. 

Illinois. Spe&r Y. Drainage Commissioners, 113 111. 632; Chicago v. 
MiDonough, 112 111. 85; Hays v. Ottawa, etc. R. R. Co., 54 Ul. 373. 

J/amc— Snow v. Boston, etc. R. R. Co., 65 Me. 230. 

Massachusetts. — Swan v. County of Middlesex, 101 Ma»s. 173; Shattuck 
V. Stoueham Branch R. R. Co., 6 Allen, 116. 

Minnesota. — Emmons V.Minneapolis, et(\ R. R. Co., 41 Minn. 133; 
Leber v. Minnesota, etc. R. R. Co, 29 Minn. 256; Simmons v. St. Pa**!, 
eu*. R. R. Co., 18 Minn. 168, 184; Lehmicke v. St. Paul. etc. R. R. Co., 
19 Minn. 406, 464; Sherman v. St. Paul, etc.R. R. Co., 30 Minn. 227. 

New rorA.— Hine v. New York, etc. R. R. Co., 36 Hun, 293 ; Rochester, 
etc. R. R. Co. V. Budlong, 6 How. Pr. 467; Matter of U tiia, etc. R. R. 
Co., 56 Barb. 456. But see Matter of N. Y., etc. R. R. Co., 29 Hun. 609. 

Oregon. — Portland v. Kamm, 10 Oreg. 383. 

Peniwy^vama.— Pittsburgh, etc. R. R. Co. v. Robinson, 95 Pa. St. 426; 
White Deer Creek Improvement Co. v. Sassaman, 67 Pa. St. 415. 

2'eaja«.— Telephone Telegraph Co. v. Forke, 2 Tex. App. Civil Cas. 318^ 

West Firi/ima.— Railroad Co. v. Foreman, 24 W. Va. 662. 

H7«con«>i.— Washburn v. Milwaukee, etc. R. R. Co., 59 Wis. 364; Neil- 
sou V. Chicago, etc. R. R. Co., 68 Wis. 516; Soyder v. Western Union 
R.K. Co., 25 Wis. 60. 



THE VALUE OF REAL ESTATE. 371 

sidered case in New York: 'There is clearly no such 
inherent distinction between questions of value aiid 
questions of damages, if you exclude from the latter 
all idea of any legal rule or measure of damages, as 
will bring one within and the other without the 
province of opinions from witnesses. ' " And there 
certainly seems to be a growing tendency to permit 
witnesses to express an opinion on the amount of 
damages in cases where the value of property is in 
issue.' 

Where land is condemned for a right of way, the 
land owner in making his proofs is not confined to 
mere expert testimony as to values before and after 
location, but he may put the jury in possession of 
such facts as will enable it to make the proper es- 
timate of damage therefrom.' 

§ 155. The Value of Real Estate. — The cases are 
numerous in which it has been necessary to deter- 
mine the value of real estate, and they recognize 
the principle that the value of land can be shown 
by the testimony of experts, or by that of ordinary 
witnesses who have special knowledge on the sub- 
ject. 

1. Real estate agents who state that they are ac- 
quainted with the value of real estate in the neigh- 
borhood in which the property in question lies, are 
certainly competent witnesses as to the value of the 
same.* And such witnesses are competent without 
proof that their knowledge is based on actual sale s. 



1 Rochester, etc. R.R. Co. v. Budlong, 10 How. Pr. R«'p. 289, 294. 
' See Lewis oo Eminent Domain, § 436; Mills on Eminent Domain, 
§ 165. 
8 See Piugery v. Cherokee, etc. Ry. Co., 78 Iowa, 438, 442. 
^ Bristol County Savings Bank v. Keavy, 128 Mass. 298. 
» Chicago, etc. R. R. Co. v. Blake, 116 HI. 163. 



372 EXPERT TESTIMONY. 

That fact goes to the value of the testimony rather 
than to its competency. 

A real estate agent accustomed to value and sell 
real property in the city or neighborhood where the 
land is situated, is competent to testify in reference 
to its value, although he himself has never sold land 
on the particular street upon which the land is lo- 
cated,' yet it is clearly essential that he should be 
acquainted with the value of land in the vicinity of 
the property in question.' A speculator in real es- 
tate, who buys and sells real property for himself, is 
competent to testify as to value, provided he is con- 
versant with the property in question, and wdth 
other property of the same character in the vicinity, 
and knows at what prices such property is held by 
persons owning and controlling it." 

2. But one does not need to be a dealer in real 
estate in order to be qualified to testify as to the 
value of it.* The market value of land is not a ques- 
tion of science or skill upon which only experts can 
express opinions.* The opinions of ordinary wit- 
nesses are certainly admissible on this as on other 
questions of value, notwithstanding a decision to the 
contrary in the Supreme Court of Rhode Island.* 
The rule is that residents in the immediate vicinity, 
who are acquainted with the property in question, 
and know the value of the land in that neighbor- 
hood, are competent to testify concerning its value. 
Thus, a farmer residing in the vicinity of farming 



1 Bristol County Savings Bank v. Keavy, 128 Mass. 298. 
« Haulenbeck v. Cronkright, 23 N. J. Eq. 413. 
8 Jarvis v. Furman, 25 Hun (N. Y.), 393. 

* Huff V. Hall, 66 Mich. 466. 

« Pennsylvania, etc. R. R. Co. v. Bunnell, 81 Pa. St. 426. 

• Buffum V. N. Y., etc. B. R. Co., 4 B. I. 221, 224. 



THE VALUE OF REAL ESTATE. 373 

lands, who was acquainted with the situation and 
quality of the land in question, and who stated that 
he knew its value, has been held competent to ex- 
press his opinion concerning its value, although he 
had not been engaged in buying or selling land, and 
his opinion was not based upon actual sales of that 
or similar land/ The courts are practicall)' unani- 
mous in following the rule above stated, that resi- 
dents in the immediate neighborhood, who are ac- 
quainted with the value of property in that vicinity 
and who know the property in question, are quali- 
fied to testify as to its value.' It is not necessary 
that the witness should have bought or sold land in 
that vicinity,* or should have known of actual sales 
of such tracts as the one in question,* that his 
knowledge of sales should have been personal,' or 

1 Kansas City, etc. R. R. Co. ▼. Ebret, 41 Kan. 22; Kansas City, etc. R. 
R. Co. v. Baird, 41 Kan. 69; Leroy, etc. R. R, Co v. Hawk, 39 Kan. 638; 
Kansas City, etc. R. R. Co. ▼. Allen, 24 Kan. 33. 

s Wallace v. Finuh, 24 Mich. 256 ; Stone v. Covell, 29 Midi. 362 ; Thomas 
y. Mallinokrodr, 43 Mo. 65; Pennsylvania, etc. R. R. Co. v. Bunnell, 81 
Pa. St. 426; Robertson v. Knapp, 35 X. Y. 91 ; Snyder v. Western Union R. 
R. Co., 26 Mo. 60; West Newbury v. Chase, 5 Gray (Mass.), 421; Clark 
V. Baird, 9N. Y. 183; Lehraicke v. St. Paul, etc. R.R.Co,,19 Minn. 464; 
Simmons ▼. St. Paul, etc. R. R. Co., 18 Minn. 184; Crouse v. Holman, 
19 Iud.30; Brainard v. Boston, etc. R. R. Co., 12 Gray (Mass.), 407; 
Hayes v. Ottawa, Oswego, etc. R. R. Co., 64 111. 373; Galena, etc. R. R. 
Co. V. Haslem, 73 111.494; Wallace v. Finch, 24 Mich. 255; Hanover 
Water Co. V. Ashland Iron Co., 84 Pa. Sr. 284; Keithsburg, etc. R. R. 
Co. V. Henry, 79 111. 290; Seliiia, etc. R. R. Co. v. Keath, 63 Ga. 178; 
Hudson V. State, 61 Ala. 334 ; Milwaukee, etc. R. R. Co. v. Eble, 4 Cband. 
(Wis.) 72; Erd v. Chii-ago. etc. R. R. Co., 41 Wis. 64; Ferguson v. Staf- 
ford, 33Ind. 162; Tate v. M., K. A T. R. R. Co., 64 Mo. 149; Russell v. 
Horn Pond, etc. R. R. Co., 4 Gray (Mass.), 607; Northeast, etc. R. R. 
Co. V. Frazier, 25 Neb. 53 ; Pingery v. Cherokee, etc. Ry. Co., 78 Iowa, 
439; Blake v. Griswold, 103 N. Y. 429. 

« Whitman v. Boston, etc. R. R. Co., 7 Gray (Mass.), 313; Lehmicke 
y. St. Paul, etc. R. R. Co., 19 Minn. 464, 482. 

« Frankfort, etc. R.R. Co. v. Windsor, 61 Ind. 240; Leroy, etc. R. R. 
Co. V. Hawk, 39 Kan. 638, 641 ; Kansas City, etc. R. R. Co., Ehret, 41 
Kan. 22; Kansas City, etc. R. R. Co. v. Baird 41 Kan. 69. 

* Hanover WaterCo. v. Ashland Iron Co., 84 Pa. St. 284. 



374 EXPERT TESTIMONY. 

that it should have been derived from the buyer or 
seller of the land sold/ 

It has been held in Rhode Island that while a 
farmer living in the vicinity of farming land, and 
familiar with it, may, as an expert, give his estimate 
of its value as farm land, yet that his opinion gen- 
erally of the value of such realty would be inadmis- 
sible, since t'he market value of such realty might 
be much greater than its agricultural value.' 

Where it was desired to show a depreciation in the 
value of certain real property, it was held that the sec- 
retary of an insurance company, who had been in the 
habit of examining buildings in reference to insur- 
ance, might express the opinion that the passage of 
locomotive engines within a certain distance of a 
building would diminish the rent and increase the 
rate of insurance against fire, and that he might state 
that his company had declined to take the risk at 
any rate of insurance on applications for insurance 
on buildings in that vicinity.* 

The Supreme Court of Pennsylvania in a well con- 
sidered case has stated the law as to the competency 
of witnesses in this class of cases, as follows: **In 
order, therefore, that a witness may be competent 
to testify intelligently as to the market value of land, 
he should have some special opportunity for observa- 
tiop, he should, in a general way, and to a reasona- 
ble extent, have in his mind the data from which 
a proper estimate of value ought to be made; if in- 
terrogated he should be able to disclose sufficient 
actual knowledge of the subject to indicate that he 
is in condition to know what he proposes to state 

1 Whitman v. Boston, etc. B. R. Co., 7 Gray (Mass.), 313. 
« Brown v. Providence, etc. R. R. Co., 12 R. I. 238. 
^ Webber v. EasteraR. R. Co., 2 Met. (Mass.) 147. 



THE VALUE OF REAL ESTATE. 375 

and to enable the jury to judge of the probable proxi- 
mate accuracy of his conclusions. He may hesitate 
in making an estimate of the value, he may say 
that he does not know certainly, but, after due de- 
liberation, may be able to express an opinion, or 
come to a conclusion, the accuracy of which, under 
all the evidence, is of course wholly for the jury.'" 
And the following statement has been made by the 
Supreme Court of Massachusetts: **The knowledge 
requisite to qualify a witness to testify to his opin- 
ion of the. value of lands may either be acquired by 
the performance of official duty, as by a county com- 
missioner or selectman, whose duty it is to lay out 
public ways, or by an assessor, whose duty it is to 
ascertain the value of lands for the purpose of taxa- 
tion; or it may be derived from knowledge of sales 
and purchases of other lands in the vicinity, either 
by the witness himself, or by other persons. '** While 
witnesses testifying to value have a right to give 
their opinion based upon actual sales known by 
them to have been made,' yet it is ordinarily held 
that evidence of particular sales is inadmissible to 
establish the market value of land.* To allow such 
evidence to be introduced is to raise an issue collat- 
eral to the subject of inquiry, for a particular sale 
may have been a sacrifice occasioned by necessity, 
or it may have been the result of caprice or folly. 
But in some States evidence of actual sales of neigh- 
boring property is held admissible.*^ 

* Pimbiirjr, etc. R. B. Co. v. Vance, 116 Pa. St. 325. 
s Swan V. Middle>ex, 101 Mass. 177. 

> TbODipsoo V. Moilef>, 46 Mich. 42. 

* Pittsburg, etc. R. R. Co. v. Patterson, 107 Pa. St. 461; Selma R. R. 
V. Keith, 53 G<i. 178; Lehmlcke v. Sl. Paul, etc.R.R. Co., 19 Minn.'{64; 
Central Pacific R. R. Co. v. Pearson, 35 Cal. 247. 

* EJmonls v. Boston, 108 Mass. 535; Moale v. Baltimore, 5 M<]. 314. 



376 EXPERT TESTIMONY. 

The market value of taiid is not necessarily the 
price which the land would command in a forced 
sale by public auction; but it is estimated ''upon a 
fair consideration of the. location of the land, the 
extent and condition of its improvements,, its quan- 
tity and productive qualities, and the usee to which 
it may reasonably be applied, taken with the 
general selling price of lands in the neighborhood 
at the time. The price which, upon full considera- 
tion of the matters stated, the judgment of well in- 
formed and reasonable men will approve may be re- 
garded as the market value. ' '^ The market value of 
land is not to be determined by combining the sev- 
eral values of its constituent parts and aggregating 
the whole. For instance, one cannot say that the 
timber on the land is worth a certain amount, the 
gravel so much, a deposit of clay so much, and 
when these are removed the land is still worth so 
mnch; and therefore that the land is worth the ag- 
gregate of all these sums. Such an estimate is con- 
sidered unfair and misleading, and as confusing the 
real question as to what is the market value of the 
land as it is. The witnesses in stating their opinion 
are entitled to take, into account whatever goes to 
make up value, but in their estimate they should 
give their opinion of the market value of the whole, 
and not of the several parts.' The testimony would 
be inadmissible to show, for instance, how many 
building lots, the land in question could be divided 
into, and what such lots would be worth separately.- 
It is the tract and not the lots into which it might be 
divided that is to be valued.' A witness testifying 

^ Pitteburg, etc. R. R. Co. v. Vance, 115 Pa. St. 325. 

« Page V. Wells, 37 Mich. 41'5. 

« Pennsylvania, etc. B. R. Co. v. Tleary, M5 Pa. St. 443. 



VALUE OF PERSONAL PKOPERTY. 377 

as to the value of a tract of land may, however, 
base his estimate upon the value of other tracts in 
the neighborhood/ 

§ 156. Value of Personal Property Generally.-^ 
When the question is as to the market price or value 
of goods and chattels, 'the opinions of merchants 
and others conversant in trade, and who know the 
value of that kind of property, are received in evi- 
dence. The experience which merchants ind brok- 
ers acquire in the ordinary conduct of their business 
is such as qualifies them to testify as to the value of 
articles with which they are required by the neces- 
sities of their business to be familiar.* Thus, when 
the question was as to the value of materials for 
making clothing, a manufacturer of clothing has 
been permitted to state his opinion.* So when the 
question was as to the value of material and labor 
employed in erecting a house, master builders have 
been allowed to give their opinion.* In like man- 
ner the opinions of carpenters have been received as 
to the value of a house which had been destroyed by 
fire.* The opinion of a clerk em})]()yed in a store in 
selling goods has been received as to the value of 
goods,* and a workman in a saw mill, familiar with 
the prices of lumber at the mill, has been allowed 
to testify as to the value of particular lumber cut 
in the neighborhood and taken there for manufact- 
ure. If in the course of their business dealers are 
kept informed as to the maket value of any partic- 
ular thing by price current lists duly furnished them 

1 Morrison v. Watson, 101 N. C. 338. 

* Kee<l V. New, 36 Kan. 727. 

« Browning v. Long Island R. R. Co., 2 Daly (X. Y.), 117. 

« Tebbeits y. Haskins, 16 Me. 288. 

•Bedell v. Long Island R. R. Co., 44 N. Y. 367. 

• Sirnne v. Brlggs, 3L Mlch...443. 



378 EXPERT TESTIMONY. 

for use in their business, opinions derived from such 
information will be received in evidence.' But in 
an action for work and labor done and materials 
furnished, it has been held that the price-list itself 
could not be received in evidence.* And it has 
been held that no error was committed in excluding 
the testimony of a witness, whose knowledge as to 
market price was derived wholly from statements of 
his partner as to the prices at which his firm had 
sold, entries of which it was his duty to make in the 
books of the firm.' 

§ 167. Value of Services Generally. — The general 
rule is that it is competent for a witness to state the 
value of another's sei:vices in all cases where he has 
knowledge of the matter in controversy, and is ac- 
quainted with the value of services such as those ren- 
dered in the particular case.* For instance, an ex- 
pert accountant may testify as to what would be a 
fair compensation for the services of a competent 
accountant, in keeping the account books of a busi- 
ness of a certain character, and as to the usual 
charge per day for the services of an accountant in 
fixing up complicated accounts.* And where the 
plaintiff*, who was a real estate broker, sued for serv- 
ices rendered in effecting the purchase of a mill, the 

1 Whitney v. Tbatcheri 117 Mass. 526; In re Oliquot's ChampagDe, 3 
Wall. (U. S.) 114; In re Fennerstein's Ohampagae, /Md. 145 ; Sisson ▼. 
Toledo, etc. R. R. Co., 14 Mich. 489; Cleveland, etc. R. R. Co. v. Perkins, 
17 Mich. 296 ; Sirrine v. Briggs, 31 Mich. 443 ; Lush v. Druse, 4 Wend. (N. 
Y.) 317; Terry v. McNeil, 68 Barb. (N. Y.) 241. See Whelan v. Lynch, 
60N. Y. 469, and Schmidt v. Herfurth, 5 Robertson (N. Y.), 124, 125. 

« Cuunty of Cook v. Harms, 10 Bradw. (m.) 24. 

« Flynn v. Wohl, 10 Mo. Aiyp. 582. 

^ BoAven v. Bo.wen, 74 Ind. 470; Johnson v. Thompson, 72 Ind. 167; 
Parkin's Heirs v. Parker's Admr., 33 Ala. 459; Scone v. Tupper, 58 Vt. 
409. 

« Ushattuck V. Train, 116 Mass. 296. 



VALUE OP SERVICES GENERALLY. 379 

evidence of a real estate broker was held admissible 
as to the commissions which he charged for such 
services, arid as to what he would have charged in the 
case in question/ 

But if the witness is unacquainted with the value 
of services such as those rendered in the particular 
case, he is not an expert in that particular matter of 
inquiry, and cannot testify as such. Hence, in a 
suit by a broker to recover commissions for the sale 
of a colliery, a broker whose business was the sale 
of real estate in Philadelphia, and who had no expe- 
rience and knew of no sales or commissions paid on 
sales of collieries, was held to be an incompetent wit- 
ness as to the value of the services rendered.* 

Employers of labor are competent to testify as to the 
value of the services of one in like employment. Thus, 
in an action brought for services in planning, prepar- 
ing and organizing for the erection of a factory, and in 
superintending the mounting and putting in opera- 
tion of its machinery, the Supreme Court of Georgia 
has permitted witnesses, who were not experts, and 
who knew nothing of the particular services sued for, 
except from a general description of the same con- 
tained in the interrogatories in answer to which their 
evidence was given, to testify as to what in their 
opinion would be a reasonable salary for the services 
performed. The court held that witnesses who had 
employed the person rendering the services, or who 
had been employed with him, and who had seen the 
results of his skill, and who knew his professional 
standing, could testify in such cases.' So it has 
been held that neighbors, who had employed serv- 

» Eltin^ V. Sturtevant, 41 Conn. 176. 

« Potts V. Aeehternachr, 93 Pa. St. 142. 

8Eagl«', eti-. Manufacturing Co. v. Brown, 68 Ga. 240. 



380 EXPERT TESTIMONY. 

ants to do like work, are competent to testify to the 
value of services of a girl employed to do housework/ 
and that the value of the services of a farm laborer 
may be shown by the testimony of those who had 
employed him.' 

The admission of the opinion of a witness living 
in one place as to the value of services performed at 
another was held no error, when there was nothing 
to show that the witness did not know the value of 
labor at the latter place, or the comparative value 
of wages at both.' 

§ 158. The Value of LegAl Services. — According 
to the common law of England the reward of an 
advocate's services were deemed, not merceSy 
but honoraria, and could not be recovered by 
means of legal proceedings.* But in this coun- 
try the English rule does not prevail, and a right 
of action exists for the recovery of counsel fees.' 
In the absence of some express contract fixing 
the amount of the attorney's compensation, if 
an action is instituted to enforce payment, it is 
necessary to determine the value of the services 
rendered, and in such an action an attorney may be 
called as an expert to testify as to the value of the 
services in question.* It has been well said, that '*the 

> Carter v. Carter, 36 Mich. 207. 

« Ritrer v. Daniels, 47 Mich. 617. 

• Kent Furniture, etc. Co. v. Ransom, 46 Mich. 416. 

< Kennedy v. Brown, 13 C. B. (N. S.) 677; 32 L. J. 187. And see 
Brown v. Kennedy, 33 L. J. Ch. 71 ; 33 Beav. 133 ; 4 D. J. & S. 217. 

^ See 13 Cent. L. J. 43, where the subject is considered and the 
cases collected. The English rule, bowev«*r, is sttll recognized in 
New Jersey. Seeley v. Brown^, 15 N. J. L. 35; Van Atta ▼. McRhiney, 
16 N. J. L. 235; Schoup v. Schenck, 40 N. J. L. 195. And counsel fees 
in that State cannot be recovered unless an express contract fixing the 
fees Is shown. Hopper v. Ludlum, 41 N. J. Law, 182 (1879). 

« Harnett v. Garvey, 66 N. Y. 641 ; Williams v. Brown, 28 Ohio St. 
547, 551 ; New Orleans, etc. R. R. Co. v. Albrettm, 38 Miss. 242, 246, 273 ; 



THE VALUE OF LEGAL SEJIVICES. 381 

very best means of adjusting this value are the opin- 
ions of those who, in earning and receiving compen- 
sation for them, have learned what legal services in 
their various grades are worth/' ^ The opinion of 
one who is not an attorney is incompetent to prove 
the value of an attorney's services.* But it does not 
seem to be necessary that the attorney should be at 
the time, actually engaged in the active practice of his 
profession.' The witness may base his opinion in part 
on his personal knowledge, and in part on the testi- 
mony of others ; * and if he has no personal knowl- 
edge of the services rendered^ his testimony must be 
based upon a hypothetical question submitted to 
him.* In determining the value of the attorney's 
services, it is proper to show by the witness, the 
character and professional standing of the person 
rendering the services in question • as well as the na- 
ture and importance of the services rendered.^ And 
it is proper to propound the following inquiry : 
'* From the character of the case set out in the com- 
plaint filed, what would be a reasonable fee for de- 
fending said suit?" * The value of the services of 
counsel under circumstances of general similarity to 

Allis V. Day, 14 Miss. 516 ; Antbouy v. Stiuson, 4 Khxi. 211 ; Ottawa Uui- 
versity v. Parkingon, 14 Kan. 159; Head v. Har^ave, 105 U. S. 45; 
Liussman v. Merkle, 3 Bos. (N. Y.) 402; Beekman v. Platner, 15 Barb. 
(N. Y.) 550; Jevne v. Osgood, 57 111. 340; Haish v. Fay son, 107 Ul. 365; 
Turnbull v. Richardson, 69 Mich. 400; Kelley v. Richardson, 69 Mich. 
430. 

* Thompson v. Boyle, 85 Pa. St. 477. 
« Hart V. Vidal, 8 ChI. 56. 

> See Blizzard v. Applegate, 61 Ind. 371. 

* Garfield v. Kirk, 65 Barb. (N. Y.) 464 ; Brown v. Huffard, 69 Mo. 305. 
, a Williams v. Brown, 28 Ohio St. 547, 551 : Ceniral Branch, etc. R. R. 
Co. V. Nichols,- 24 Kan. 242. 

« Jackson v. N. Y. Ceut., etc. R. R. Co., 2 Sup. Ct. 653. 
' Harland v. Lillenthal, 53 N. Y. 438; Gariield v. Kirk, 65 Barb. (N. 
Y.) 464. 
» Covey V. Campbell, 52 Ind. 158. 



382 EXPERT TESTIMONY. 

those under which the services in question were ren- 
dered may also be shown/ But what an attorney 
receives in a case is no criterion of the value of the 
service of another attorney in the same case, in the 
absence of any showing that the services were simi- 
lar, the skill equal, and the time spent the same.' 
It has been held that, upon the cross-examination of 
an attorney testifying as an expert in such cases, it 
is within the discretion of the trial court to reject a 
question as to the income derived by the witness 
from the practice of his profession.' 

An important question concerning the value of 
an attorney's services recently came before the Su- 
preme Court of Michigan, in the case of Kelley v. 
Richardson,* and was decided by three judges to two. 
Richardson died possessed of property aggregating 
over a million of dollars, all of which he left by will 
to his wife. The plaintiff was employed by the widow 
to attend to the probating of the will and the settle- 
ment of the estate. He had the entire counseling 
and managing of the estate, which included a lum- 
bering plant, composed of a saw-mill and equipments 
valued at half a million of dollars. He spent five 
months in settling the estate and then brought suit 
to recover the value of his services. On the trial he 
put on the stand certain lawyers, stated in a hypothet- 
ical question to them the nature of the services ren- 
dered, and asked their opinion as to the value of the 
services rendered. Objection w^as made to the ques- 
tion on the ground that it called for the opinion of 
lawyers as to the value of services not alone profes- 

1 Thompson v. Boyle, 85 Pa. St. 447. 

* Ottawa University v. Parkinson, 14 Kan. 160. 
« Harland v. Llllentbal, 53 N. Y. 438. 

* 69 Mich. 430. See also Turnbull v. Richardson, 69 Mich. 400. 



THE VALUE OF SERVICES. 383 

sional, but business services in carrying on a lum- 
ber business, and a saw-mill, which manufact- 
ured 20,000,000 feet of lumber per year, and the run- 
ning of eleven steam and sail vessels ou'th'e lakes, 
and various other services, concerning the value of 
which a lawyer, as such, was not competent to tes- 
tify. The majority of the court held that the opin- 
ions expressed by the lawyers concerning the value 
of the services as an entirety were properly received, 
and Mr. Justice Campbell said: ''It seems to us that 
when a lawyer is employed professionally to take 
entire charge of matters involving at the same time 
professional services, and services which are not so 
strictly special that others than lawyers might not 
perform them, it is impossible to draw any line and 
say that he is not employed professionally through- 
out." On the other hand, the minority of the court 
thought the services rendered in managing the busi- 
ness enterprises could not be considered as having 
been rendered in a professional capacity, and that 
the opinions of the lawyers as to the value of such 
services were inadmissible, it not appearing that they 
knew anything about running a farm, a saw-mill, or 
a steam-boat. Mr. Chief Justice Sherwood, in his 
dissenting opinion, regards the rulings of the major- 
ity of the court in this case ' * as breaking down all 
the wholesome barriers between expert and non -ex- 
pert testimony.'* 

^ 159. The Value of Services Rendered by Physi- 
cians and Nurses. — In a case decided as early as 
1791, Lord Kenyon declared that he understood that 
the fees of physicians and surgeons were merely hon- 
orable and not demandable of right.* And such was 

1 Chorley v. Bolcot, 4 Term R. 317. 



384 EXPERT TESTIMONY. 

undoubtedly the law of England.' In this country, 
however, the courts have not recognized the English 
rule, but have allowed physicians to recover the value 
of their services.* This right is now secured to them 
in England by a statute adopted in 1858.' 

As the value of services rendered by lawyers is 
shown by the testimony of those engaged in the 
same profession, so the value of services rendered by 
physicians and surgeons in the practice of their 
profession is proven by the testimony of their pro- 
fessional brethren.* And it has been laid down that 
one who is not a physician is incompetent to testify 
as to the value of medical services.* The Indiana 
court has held it not necessary that the witness 
should know just what physicians were in the habit 
of charging for services similar to those in question , 
and for what such services could be procured.* In 



' Lipscombe v. Holmes, 2 Camp. 441. 

* Judah V. McNamee. 3 Blackf. (Ind.) 269; Mooney v. Lloyd, 6 S. & 
K. (Penn.) 416; Rouse v. Morris, 17 S. & R. (Penn.) 328; Simmons v. 
Means, 8 S. & M. (MUs.) 397; Mock v. Kelly, 3 Ala. 387; Smith v. Wat- 
son, 14 Vt. 332. 

« 21 and 22 Vict. Ch. 90, § 31. See, too, Gibbon v. Budd, 32 L. J. Ex. 
182; 8.C., 2H.AC. 92. 

< Boai'd of Commi^8ioner8 v. Chambers, 75 lud. 409; Me^tz v. Detwi- 
ler, 8 W. & S. 376 ; Wood v. Barker, 49 Mich. 295. 

' Mock V. Kelly, 3 Ala. 387. And see Wood v. Brewer, 57 Ala. 515. 

" Board of Comuiissioners v. Chambers, 75 Ind. 409. in this connec- 
tion It is interesting to note the language of the Supreme Court of Min- 
nesota in Elfelt v. Smith, 1 Minn. 126: ^^The value of services upon a 
quantum meruit stands in regard to the proof, upon the same principle as 
to the value of chattels upon a quantum valebant. The value of chattels in 
such a case is always regulated by the usual market value of such chat- 
tels, of like quality, at the time and place of sale; and before a witness 
can, in such a case, be permitted to testify to such value, it must 
appear by his own, or other competent evidence, that he knows with 
reasonable certainty what such usual or market value is. He then testi- 
fies to the value as a fact, and not as a mere matter of opinion. So in 
regard to service; it must appear that the witness knows the usual value 
of, or rate of compensation paid for such or the like services at the time 



THE VALUE OF SERVICES. 385 

that case the facts were as follows: Certain physi- 
cians were called to testify as to the value of the serv- 
ices of a physician in making a post-mortem examin- 
ation under the employment of a coroner. The 
witnesses testified on their direct examination that 
they were physicians and surgeons, and considered 
themselves competent to testify as to the value of 
services rendered in making post-mortem examina- 
tions. But it appeared on their cross-examination 
that they did not know what physicians had charged 
for making such examinations, and that they knew 
nothing of the prices at which such services could 
be procured, but formed their judgment of the value 
of the services from what they thought such service* 
would be worth. The court held it proper that their 
testimony should be received, saying : ** The testi- 
mony was competent, for the witnesses Vere shown, 
to be experts, and to possess such knowledge, skill 
and acquaintance with the subject under investiga- 
tion as entitled them to express their opinions to the* 
jury. They may have had some knowledge of the 
value of such services, without knowing anything 
at all about what others were charging for like serv- 
ices." 

In an action by a physician to recover for medical 
services, it is competent for him to prove the nature 
of the disease, and the character of the ti^eatment 
given; and one court in New York has held that 
such evidence is not rendered incompetent by the 
provision of the statute, forbidding the disclosure 
of confidential communications made by a patient 
to a physician.* 

when, and the place where, they were rendered, before he can be prop- 
erly permitted to testily what such value or rate is/* 
1 KendaU v. Gray, 2 miton (N. Y.), 302. 

(25) 



386 EXPERT TESTIMONY. 

As to the value of services rendered in nursing 
and caring for the sick, the rule is that the wit- 
nesses should be persons who have had experience 
in nursing and caring for the sick. Physicians* 
and nurses' are competent witnesses in such cases. 
And it has been held that one who had long 
had the care of an insane person, and provided 
for his table, and who had been for a considerable 
period of time in another family while such person 
was boarding there, was qualified to express an opin- 
ion as to the value of taking care of him and board- 
ing him at the latter place.' 

§ 160. Value of Annuities. — Stockbrokers who 
have been engaged in buying and selling life annui- 
ties, and who have thereby become acquainted with 
the value and market price of annuities, have been al- 
lowed to testify as to the market price of an annuity 
for the life of a person of a certain age.* So, actua- 
ries, experienced in the business of life insurance, 
are permitted to testify as to the value of an annuity.' 
And an accountant, who was acquainted with the 
business of insurance companies, has been examined 
as to the average duration of human lives.* With 
the view of ascertaining the probable duration of a 
particular life at a given age, it is material to know 

1 Woodward v. Bugsbee, 4 N. Y. Sup. Ct. 393; Reynolds v. Robinson, 
61 N. Y. 589; Shafer v. Dean^s Admr., 29 Iowa, 144. 

> Shafer y. Dean's Admr., 29 Iowa, 144. 

3 Kendall v. May, 10 Allen (Mass.), 69. 

* Heathcote v. Pai^on, 2 Brown's Ch. 167, 169. 

< Ex parte Whitehead, 1 Merlvale, 127, 128; Ex parte Thlstlewood, 19 
Vesey, 235; Heathcote v. Palgnon, 2 Brown's Ch. 167, 169; Griffith y. 
Spratley, 1 Cox Ch. 389. 

« Rowley v. London, etc. R. R. Co., 8 Ex. (L. R.) 221. In the case 
cited, Brett, J., did not think It necessary to say whether such a witness 
WHS competent, but thought It doubtful, as he was not an actuary. 
Blackburn, J., said that as he ^ve evidence that he was experienced In 
tbe business of life Insurance, his opinion was admissible. 



VALUE OF ANNUITIES. 387 

what is the average duration of the life of a person 
of that age. '* The particular life on which an an- 
nuity is secured may be unusually healthy, in which 
case the value of the annuity would be greater than 
the average, or it may be unusually bad, in which 
case the value would be less than the average ; but it 
must be material to know what, according to the expe- 
rience of insurance companies, the value of an annuity 
secured on an average life of that age would be. ' ' For 
the purpose of determining this, the witnesses are 
permitted to refer to standard tables used by insur- 
ance companies in the course of their business.^ 
And it has been held that the Carlisle Tables of 
Mortality, being standard tables on this subject, are 
admissible evidence for the purpose of showing the 
expectation of life at a particular age.' The North- 
ampton Tables have been received for the same pur- 
pose.' And in a recent case in Kentucky, in deter- 
mining the value of the potential right of dower, the 
court adopted the table prepared by Professor Bow- 
ditch on that subject, declaring that it furnished a 
safer and more convenient guide than the opinions 
of witnesses.* This subject is considered more fully 
in another portion of this work.* 

For the purpose of determining the value of the 
life of a decedent, an expert may be asked: ^'From 
your knowledge of the decedent's age, habits, 
health, and physical condition," how long, in your 

I See Davis v. Marlborough, 2 Swanson, 113, 150; Nicholas v. Qould, 2 
Ve8ey,423; Bowley ▼. London, etc. R. Co., ntpra. 

> Donaldson v. Mississippi, etc. R. R. Co., 18 Iowa, 281 ; Simonson v. 
C, R. I. & P. R. Co., 49 Iowa, 87. 

•ScheU V. Plumb, 66 N.Y. 598; Sauter v. N. Y. Cent. R. R. Co., 
13 N. Y. Sup. Ct. 461 ; Wager v. Schuyler, 1 Wend. (N. Y.) 663 ; Jackson 
V. Edwards, 7 Paige Ch. (N. Y.) 386, 408. 

* Lancaster v. Lancaster's Trustees, 78 Ky. 200. 

' See section 163. 



388 EXPERT TESTIMONY. 

epinion, would he have been useful to his family?' 
An expert in life insurance may be asked as to the 
relative hazard of diflFcrent occupations.' 

§ 161. Value of Foreigrn Currency and Nesr otiable 
Securities. — In order to ascertain what is the lawful 
money of a foreign country it is considered unneces- 
sary that the law of such country, regulating the 
subject, should be produced.' And witnesses who 
have had business transactions in such country, 
having had occasion in that way to learn the value 
of the currency in common use, are competent to 
testify as to such value, and to state its equivalent 
in our own currency.* So it has been held that the 
value of the stock of a railroad company at a speci- 
fied date, could be shown by the testimony of one 
who dealt in such stock at or near that date.* And 
it has even been heldthat the testimony of a witness 
as to the market value, at a somewhat remote period 
of negotiable securities, was competent and suffi- 
cient j:>nma/act6 evidence, although it was founded 
on a general recollection based on his keeping the 
run of the market price in consequence of being very 
much interested in the company which issued the 
secuiities.* 

» Pennsylvania Railroad Co. v. Henderson, 51 Pa. St. 320. 

> Hartmanv. Keystone Ins. Co., 21 Pa. St. 478. 

^ Comstock v. Smith, ^ Mich. 338. 

* Kermott v. Ayer, 11 Mich. 181; Comstock v. Smith, supra. 

» Noonan v. Hsley, 22 Wis. 27. 

« Smith V. Frost, 42 N. Y. Superior Ct. 87. 



RELATION OF SCIENTIFIC WORKS. 389 



CHAPTER IX. 



THE RELATION OP SCIENTIFIC BOOKS TO EXPERT 
TESTIMONY. 



SECTION. 

162. The Relation of Scientific Works to Expert Testimony. 

163. The Admissibility in Evidence of Certain Scientific Works. 

164. The Inadmissibility in Evidence of Opinions and Statements 

Contained in Standard Treatises on Inexact Sciences— The 
Rule in England. 

165. Their Admissibility in Some States of this Country. 

166. Their Inadmissibility in Evidence is the General Rule in the 

United States. 

167. Their Inadmissibility in California. 

Ib8. Their Inadmissibility in Illinois, Indiana and Kansas. 

169. Their Inadmissibility in Maine, Maryland and Massachuset'U. 

170. Their Inadmissibility in Michigan and Mississippi. 

171. The Doctrine in New Hampshire and New York. 

172. Their Inadmissibility in North Carolina and Rhode Island. 

173. Their Inadmissibility in Wisconsin. 

174. The Reasons Why Such Books Should not be Received in Evi- 

dence. 

175. Views of Writers on Medical Jurisprudence on the Question. 

176. Their Inadmissibility for Purposes of 'Contradiction. 

177. The Rights of the Witness to Refer to, or Cite Standard Author- 

ities. 

178. Reading from Authorities and Asking the Witness Whether he 

Agrees with the Extracts Read. 

179. Reading from Scientific Books in Argument. 

180. The Rule in England on the Subject. 

181. Cases in the United States Denying to .Counsel the Right to 

Read in Argument from Scientific Books. 

182. Cases Sometimes Cited as Supporting the Rights of Counsel so 

to Do. 



390 EXPERT TESTIMONY. 

183. Cases Deciding that Counsel may Read from Scientific Books in 

Argument. 

184. Reading tlie Testimony.of Experts as Contained in Oificial Re- 

ports. 

$ 162. The Relation of Scientifle Works to Ex- 
pert Testimony. — As we have already seen/ experts 
are permitted to express opinions on subjects con- 
nected with their particular departments of science, 
or of art, although their opinions are based on infor- 
mation derived by them from the study of books, and 
not from their own experience or observation of like 
cases. They are also permitted to refresh their memo- 
ries by the use of standard authorities.' But a marked 
distinction exists between permitting a witness to 
refresh his memory by reference to an authority, or 
writing, and the introduction of the writing itself in 
evidence. It may be wholly improper that the writ- 
ing should be introduced in evidence, and yet en- 
tirely proper for the witness to refresh his recollec- 
tion by a reference to it. An equally well-marked 
distinction exists between the admissibility of opin- 
ions based on a study of authorities, of standard 
writings, and the reception of the writings them- 
selves in evidence. It is fair to assume that the ex- 
pert has weighed the assertions and opinions of the 
different authorities, and that he has reached an in- 
dependent judgment thereon. The opinion which 
he expresses is given in a court of justice, and un- 
der the solemnity of an oath. While it can hardly 
be presumed that a standard writer would give ex- 
pression in his public writings to a dishonest opin- 
ion, yet the fact remains that the opinion was not 

' See section 19. 

* Taylor on Evidence, 1280; 1 Wharton's Ev. 488 ; Hoffman t. Click 
77 N. 0.566. 



SCIENTIFIC WORKS. 391 

expressed under oath, and may have subsequently 
been modified. The writer is not presented in court; 
no opportunity is given for his cross-examination, 
and the jury cannot observe the witness. The ques- 
tion, therefore, arises, are scientific works admissible 
in evidence? Can the opinions of scientific writers, 
as expressed in their writings, be received in evidence 
as the opinions of experts, or must the writers them- 
selves be called as witnesses, and give expression to 
their opinions under oath, in the presence of the 
court, the jury, and the parties? This is an impor- 
tant question to be presently considered, * 

§ 163. The Admissibility in Evidence of Certain 
Scientific Works. — Before proceeding to the consid- 
eration of the question suggested in the preceding 
section it is necessary to understand that there, are 
certain scientific works to which the question alluded 
to in the preceding section does not relate, and con- 
cerning the admissibility of which in evidence no 
doubt exists. These are books that relate to the ex- 
act sciences, or such as by long use in the practical 
affairs of life have come to be recognized by all hav- 
ing occasion to use them as standard and unvary- 
ing authority in determining the action of such per- 
sons.* To this class belong almaaacs, astronomical 
calculations, tables of logarithms, mortuary tables 
for estimating the probable duration of life at a given, 
age, tables of weights and measures, and of currency^ 
chronological tables, interest tables, and annuity 
tables. The rule is well established that standard 
tables of mortality may be received in evidence for 
the purpose of showing the expectation of life at a 

1 Tucker v. Donald, 60 Miss. 460, 470 ; Gallagher v. M arket St. Sy . Co. 
67 Oal. 13, 16. 



392 



EXPERT TESTIMONY. 



particular age/ Other instances in which scientific 
tables and works have been received in evidence, 
may be briefly noticed. Thus, in a casein the May- 
or's Court of New York, in the year 1816, it was held 
that tide-tables could be received for the purpose of 
showing that the time of high water at New York 
and New London was the same.' In a recent case in 
New York when the question was as to the grinding 
capacity of a certain quantity of water at a mill the 
capacity was ascertained from LeffePs tables. The 
court said: ''We think the united acquiescence of 
mill- Wrights in the accuracy of these tables, and in 
the results of computation founded upon them, may 
be treated as the common knowledge of the men of 
that profession, and their computations so made as 
competent evidence."* 

It has been held, too, in this country, that a rec- 
ord of the weather, kept for a number of years at the 
State Insane Asylum, was competent evidence to 
prove the temperature of the weather on a given 
day included in such record.* 

There are a few cases in which the admissibility 
of almanacs has been considered. The almanac is 



1 Vicksburg, etc. R. R. Co. v. PatDam, 118 U. S.554; McKelgue v. City 
of Janesvllle, 68 Wis. 59; Donaldson v. Mississippi, etc. R. R. Co., 18 
Iowa, 281 ; Schell v. Plumb, 55 N. Y. 598 ; Sauter v. N. Y. Cent. <ft H. R. 
R. Co., 13 N. Y. Sup. Ct. 451; Wager v. Schuyler, 1 Wend. (N. Y.) 553; 
Jacltson V. Edwards, 7 Paige Ch.386, 408; People v. Security Life Ins. 
Co., 78 N. Y. 114, 128: Berg v. Chicago, etc. R.R. Co., 50 Wis. 427; 
Mulcairns v. Janesville, 67 Wis. 24; Central Railroad v. Richards, 62 Ga. 
306; McDonald v. Chicago, etc. R. R. Co., 26 Iowa, 124, 140; Rowley v. 
London, etc. R. R. Co., L. R. 8. Exch. 221. In Worden v. Humeston, 
etc. R. R. Co., 76 Iowa, 310, the Carlisle life-tables as found in the En- 
cyclopedia Britanica were received. See HowelPs (Mich.) Stat. p. 1048. 

' Green v. Aspinwall, 1 City Hall Recorder, 14. 

« Garwood v. N. Y. Central, etc. R. R. Co., 45 Hun, 128 (1887). 

^ De Armand v. Neasmith, 32 Mich. 231. 



SCIENTIFIC WORKS. 



393 



said to be a part of the law of England/ but the 
almanac which is a part of the law of England 
is the one annexed to the common Prayer Book,' 
and that contains nothing about the rising or 
setting of the sun.' While courts take judicial 
notice * of the time the sun or moon rises and sets 
on the several days of the year, they will allow an 
almanac to be introduced in evidence in cases when 
it becomes important to fix the time referred to. In 
a case in Maryland, where it was material to prove at 
what hour the moon rose on a certain night, the trial 
court, against objection, allowed Gruber's almanac 
to be received in evidence for the purpose of proving 
the fact in question. The Supreme Court held no 
error had been committed.* In Connecticut it was 
held no error to allow Beckwith's almanac to be re- 
ceived in evidence where the question was as to the 
hour of sun set on a given day.' And in the same 
way Jayne's almanac was introduced in evidence 
in New York to show the time of the rising of the 
moon.^ But as these are matters of which the courts 
take judicial notice the almanacs thus received in 
evidence are not used strictly as evidence, but rather 
for the purpose of refreshing the memory of the court 

1 Regina v. Dyer, 6 Mod. 41. 

* Brough V. PerkiDB, 6 Mod. 81. 

s See Tutton v. Darke, 5 Hurl. & Norman, 647, 649. 

* People V. Cheekee, 61 Cal. 404. 

' MuDshower v. The State, 55 Md. 11, 24. The court say : '^An alma- 
nac forecasts with exact certainty planetary movements. We govern 
our daily life by reference to the computations which they contain. No 
oral evidence or proof which we could gather as to the hours of the ris- 
ing or setting of the sun or moon could be as certain or accurate as that 
which we may obtain from such a source. Why, then, should not these 
computations, which are, after all, but parts of the ordinary computa- 
tions of the calendar, be admitted as evidence ?^^ 

* state V. Morris, 47 Conn. 179. 

T Case V. Perew, 46 Hun (N. Y.), 57. 



394 EXPERT TESTIMONY. 

and the jury. In a recent case in Pennsylvania 
counsel was allowed in his argument to the jury to 
refer to an almanac to show that a certain day of 
the month given in the testimony of a witness was 
a certain day of the week, though the almanac was 
not proved and put in evidence. It was not neces- 
sary to put it in evidence as judicial notice could be 
taken of it.^ Courts take judicial notice of the days 
of the week.* 

$ 164. The Admissibility in Evidence of Opinion 
and Statements Contained in Standard Treatises on 
Inexact Sciences — Rule in En^rland. — ^It is evident 
that a distinction may properly be taken between 
standard works on exact sciences and similar works 
on inexact sciences, and that it does not necessarily 
follow that because the former are received in evi- 
dence that the latter should be likewise admitted. 
It remains, therefore, for us to consider whether or 
not the latter are admissible in evidence. Whether 
scientific treatises on inexact sciences may be re- 
ceived in evidence is a question which has generally 
been raised in cases where an effort has been made 
to introduce as evidence the opinions expressed in 
medical treatises. So far as England is concerned 
the question seems to be regarded as having been 
definitely settled against their admissibility in 1831 
in the leading case of Collier v. Simpson.* The case 
was one of slander, a physician having been charged 
with prescribing improper medicines. The follow- 
ing is the report of the case : 

'^ Wilde, Sergt., proposed to show that the pre- 

1 Wilson V. Van Leer, 127 Pa. St. 372. 

* Mcintosh V. Lee, 57 Iowa, 358; Reed v. Wilson, 41 N. J. Law, 29; 
Bailroad Co. v. Lehman, 56 Md . 226. 
> 5 Car & Payne, 73; 8. c, 24 Eng. C. L. 219. 



ADMISSIBILITY IN SOME STATES. 395 

scriptions were proper, and the dose not too large; 
and wished to put in medical books of authority, to 
show what was the received opinion in the medical 
profession." 

''Tindaly C. J. — I think I cannot receive medical 
books." 

^^Whightman. — When foreign laws are to be 
proved, it frequently happens that a witness pro- 
duces a foreign law book, and states it to be a book 
of authority/' 

^^Tindal, C. J. — Physic depends more on practice 
than law. I think you may ask a witness, whether 
in the course of his reading he has found this laid 
down." 

"Sir H. Halford, the president of the college of 
physicians, was called. He stated that he consid- 
ered the medicine proper, and that it was sanctioned 
by books of authority. He stated that the writings 
of Dr. Merriman and Sir Astley Cooper were con- 
sidered of authority in the medical profession." 

''Bompas, Sergt. — I submit that medical books 
cannot be cited — more especially those of living 
authors. Sir Astley Cooper and Dr. Merriman 
might be called." 

^^ Wilde, Sergt. — I wish to show that these books 
are acted upon by persons in the medical profession. ' ' 

^^Tindal, C. J. — I do not think that the books 
themselves can be read; but I do not see any objec- 
tion to your asking Sir Henry Halford his judgment 
and the grounds of it, which may be, in some de- 
gree, founded on books, as a part of his general 
knowledge." 

§ 165. Their Admissibility in Some States of this 
Country. — The earliest case in the United States 



396 EXPERT TESTIMONY. 

recognizing the right to introduce medical treatises 
in evidence, so far as we have been able to discover, 
was decided in Iowa in 1848. In an action for mal- 
practice, the defendant offered certain medical books 
in evidence which the experts had pronounced 
standard works. They were excluded by the trial 
court, but the Supreme Court, while conceding that 
the ruling of the lower court was in conformity to 
the prevailing decisions of the English courts, re- 
versed the judgment. The court said: ''Physi- 
cians, when testifying, are permitted to refer to 
medical authors, and to quote their opinions from 
memory. Being permitted to refer to and quote 
authors, we can see no good reason why they may 
not read the views and opinions of distinguished 
authors. The opinions of an author, as contained 
in his works, we regard as better evidence than the 
mere statement of those opinions by a witness, who 
testifies as to his recollection of them from former 
reading. Is not the latter secondary to the former? 
On the whole, we think it the safest rule to admit 
standard medical books as evidence of the author's 
opinions upon questions of medical skill or practice, 
involved in a trial. This rule appears to us the 
most accordant with well established principles of 
evidence.''^ The Iowa court has since adhered to 
this ruling, once in 1865,* and again in 1887,' when 
the court declared that it was not competent to ask 
a physician, on his examination-in-chief, what cer- 
tain medical authorities taught, on a given point, 
adding: **But the works themselves were admissi- 
ble in evidence, and they are the only competent 

^ Bowman v. Woods, 1 G. Green, 441, 446. 

s Donaldson v. The Mississippi, etc. R. R. Co., 18 Iowa, 291. 

» State V. Winter, 72 Iowa, 627. 



ADMISSIBILITY IN SOME STATES. 397 

evidence of what they teach." In a case decided 
in 1878, the same court held that a trial court had 
not been guilty of error in excluding from evidence 
a certain herd book, saying that ''without some 
proof that its correctness was recognized by cattle 
breeders," it was clearly inadmissible.' 

The question we are now considering was raised 
in Alabama in 1857, eight years after the Supreme 
Court of Iowa had decided that standard medical 
books could be admitted in evidence. In the 
Alabama case, an extract from a standard treatise 
on venereal diseases was offered in evidence for the 
purpose of showing that a certain venereal disease, 
when in its secondary or tertiary form, could not be 
communicated from one person to another by con- 
tact. The trial court received the evidence, and 
the Supreme Court of Alabama, following the lead 
of the Iowa court, held that no error had been com- 
mitted, dismissing the English case of Collier v. 
Simpson, already referred to, with the remark, ''that 
was a case at nisi prius, and passed off with little or 
no examination. '/ The Alabama court thought that 
inasmuch as judges, in determining questions of 
law, had a right to consult standard legal authors, 
that a jury should have the benefit of the opinions 
of standard medical authors to enable them to reach 
sound conclusions on questions of medical ' science. 
"Can that be a sound rule which, in the determina- 
tion of a question involved in one science, allows to 
the trying body the light shed upon it by the writ- 
ings of its standard authors, and withholds such 
lights from controversies respecting all other sciences? 
We think not.'" The conclusion thus reached has 

A Crawford v. Williams, 48 Iowa, 247, 249. 

' Stondenmeier v. Williamson, 29 Ala. 558, 565. 



398 EXPERT TESTIMONY. 

been adhered to since, once, in 1861/ and again in 
1879.' 

§ 166. Their Inadmissibility in EFidenee is the 
General Rule in the United States. — Notwithstand- 
ing the opinions of a few of the State courts to the 
contrary, the general rule, as established by the 
weight of authority in this country, is that standard 
medical and scientific works are inadmissible in evi- 
dence as proof of the declarations or opinions which 
they contain . The rule, however, has its exceptions, 
to be considered later on. The question has now 
been raised so many times, and the current of au- 
thority is so strongly in that direction, that we feel 
justified in saying that a general rule has been es- 
tablished on this subject, and that it forbids the re- 
ception of such works in evidence. The rule in 
England and in the United States is one and the 
same in relation to the matter. The cases on the 
subject are for the most part very recent, and the 
wonder is that so important a question was not 
earlier brought to the attention of the courts and 
conclusively settled. 

§ 167. Their Inadmissibility in California. — The 
Supreme Court of this State has decided that med- 
ical books are inadmissible in evidence. In a case 
before the court in 1882, Mr. Justice McKinstry 
stated that such books were not admissible as evi- 
dence.' The question, however, was not squarely 
presented in that case, and the opinion then ex- 
pressed was only a dictum. But in 1885 the ques- 
tion was fairly before the court, and it was decided 
that in an action to recover damages for personal 

I Merkle v. State, 37 Ala. 139. 

< Bates V. State, 63 Ala. 30. 

» People V. Wheeler. 00 Cal. 581, 584. 



ILLINOIS, INDIANA AND KANSAS. 399 

injuries, a medical book, although proved to be of 
standard authority, was inadmissible in evidence to 
prove the nature and probable effect of the injuries. 
The court held that such books were inadmissible 
both under the rule of the common law and under 
the California Code of Civil Procedure, which con- 
tained a provision making * 'historical works, books 
of science or art, and published maps or charts, 
when made by persons indifferent between the par- 
ties, ♦ ♦ ♦ j:)nma /acie evidence of facts of gen- 
eral notoriety and interest.'' Construing this pro- 
vision of the code the court said: ''What are 'facts 
of general notoriety and interest?' We think the 
terms stand for facts of a public nature, either at 
home or abroad, not existing in the memory of men, 
as contradistinguished from facts of a private nature 
existing within the knowledge of living men, and as 
to which they may be examined as witnesses. It is 
of such public facts, including historical facts, facts 
of the exact sciences, and of literature or art, when 
relevant to a cause that, under the provisions of the 
code, proof may be made by the production of books 
of standard authority." Medicine is not one of the 
exact sciences, and is based on data which each suc- 
cessive year may correct and expand. What is con- 
sidered a sound induction one year is liable to be 
considered an unsound one the next year, and med- 
ical books are altered in material features from edition 
to edition. It was, therefore, thought that such 
books should not be received in evidence.^ 

$ 168. Their Inadmissibility in Illinois, Indiana 
and Kansas. — Twenty years after Collier v. Simpson 
was decided in England, the question came up in 

1 Gallagher y. Market St. By. Co., 67 Oal. 13. 



400 EXPERT TESTIMONY. 

Indiana, and the authority of that case was fully 
recognized and followed. The circumstances were 
as follows: It was proposed to have a physician 
testify as to the effects of poison upon the human 
system, his information being derived from standard 
medical treatises. Thereupon the objection was 
made that his evidence was not admissible, but that 
the authors themselves should be produced as wit- 
nesses, or if dead, that their books should be offered 
in evidence. The court held that the books could 
not be received, but that the opinions of a physician 
based on them were admissible.* 

In 1885 the court was urged to adopt a different 
rule, counsel contending that the decision previously 
reached was '^against reason and enlightened view 
of public justice." But this the court declined to 
do.' . 

In a case before the Supreme Court of Illinois in 
1884, Mr. Justice Scholpield declares that ''the 
weight of current authority is decidedly against the 
admission of scientific books in evidence before a 
jury, although in some States they are admissible.'" 

And so in a case before the Supreme Court of 
Kansas in 1886, that court also declares that, ''al- 
though the courts are not uniform in their holdings 
upon the admissibility in evidence of medical and 
scientific books, the great weight ofauthority is that 
they cannot be admitted to prove the declarations 
or opinions which they contain."* 



^ Carter v. State, 2 Ind. 619. 
s Epps v. State, 102 Ind. 539, 549. 

s City of Bloomington y. Shrock, 110 El. 219, 221. See alao Forest 
City Ins. Co. v. Morgan, 22 m. App. Ct. Rep., 199, 202 (1886). 
* State V. Baldwin, 36 Kan. 2, 17. 



MAINE, MARYLAND AND MASSACHUSETTS. 401 

^ 169. Their Inadmissibility iu Maine, Maryland 
and Massachusetts. — The question was first con- 
sidered in this country in the Supreme Court of 
Maine, and it is somewhat curious that the subject 
was disposed of in this State in the same year in 
which Collier v. Simpson was decided in England, 
and that a similar conclusion was reached in both 
cases, each court being ignorant of the ruling of the 
other. The question was carefully considered, and 
much stress was laid on the fact that the reception 
of such works would be to receive evidence not sanc- 
tioned by an oath, without any opportunity for 
cross-examination, which was justly deemed a matter 
of great importance in any search after truth. ''The 
practice, if by law allowed, would lead to endless 
inquiries and contradictory theories and specula- 
tions. In a word, if one book is evidence, so is 
another, and if all are admitted, it is to be feared 
that the truth would be lost in the learned contest 
of discordant opinions. ' '^ 

The rule that medical treatises are inadmissible in 
evidence was adopted in Maryland in 1873, when it 
was held that the rules prescribed by medical 
authors for making post-mortem examinations could 
not be received in evidence. It was said that if it 
was desired to show that an examination bad not 
been made by the physicians in a skillful and proper 
manner, it could be done only through the testi- 
mony of witnesses competent to testify on that sub- 
ject.* And the doctrine was broadly laid down that 
medical treatises could not be received to sustain or 
contradict an expert. The court has in a case lately 
decided held that a book entitled ''The Principles 

1 Ware v. Ware, 8 Me. 42. 
» Davis V. State, 38 Md. 16, 36. 

(26) 



EXPERT TESTIMONY. 

and Practice of Life Insurance," containing the rules 
and modes of adjusting life insurance, was not admis- 
sible in evidence/ 

In Massachusetts, too, it is evident tjiat medical 
treatises are not admissible in evidence. Medical 
opinions cannot be laid before a jury ** except by 
the testimony, under oath, of persons skilled in such 
matters."* 

$ 170. Their Inadmissibility in Michigran and 
Mississippi. — In a case before the Supreme Court of 
Michigan in 1882 the court said: '*The rule is 
acknowledged in this State that medical books are 
not admissible as a substantive medium of proof of 
the facts they set forth.'" Subsequent cases in the 
same court show that : suph is the 'well recognized 
rule.* The same ruling was made in Mississippi in 
1882 in a case involving a question as to the effect 
of paralysis on the human arm. It was held to be 
clearly inadmissible to introduce, as primary evi- 
dence, extracts from standard medical works.' • 

^ 171. The Doctrine in New Hampshire and New 
York. — In New Hampshire we have a dictum ap- 
proving the rule excluding medical books from the 
iury.* In New York the question does not appear 
to have been ruled on in either the Court of Appeals 
or in the Supreme Court. The New York Superior 

1 Mutual Life Ins. Co. v. Bratt, 55 Md. 200. 

s Chief Justice Shaw in Commoowealth v. Wilson, 1 Gray, 337 (1854). 
4nd see Ashworth v. Klttridge, 12 Cush. 194 (1853) ; Commonwealth v. 
Sturtivant, 117 Mass. 122, 139 ri876) ; Commonwealth v. Brown, 121 
Mass. 69, 75 (1876) ; Commonwealth v. Marzynskl, 149 Mass. 68 (1889). 

8 Pinney v. Cahill, 48 Mich. 684, 586. 

* See People v. Hall, 48 Mich. 486; Marshall v. Brown, 60 Mich. 149; 
People y. Millard, 53 Mich. 63, 75, et seq. Also see Barrick v. City of 
Detroit, 1 Mich. N. P. 135. 

« Tucker v. Donald, 60 Miss. 460, 470. 

• Dole V. Johnson, 50 N. H. 452, 455 (1870). 



NORTH CAROLINA AND RHODE ISLAND. 403 

Court, however, as early as 1858, laid down the rule 
tiiuit the matters alleged in standard treatises must 
be proved in the same manner as any other facts, 
and that the books themselves were no evidence of 
the truth of the assertions of fact contained in them/ 

$172. Their Inadmissibility in Xorth Carolina 
and Rhode Island. — The subject has been twice con- 
sidered in North Carolina, and in each instance a 
conclusion was reached adverse to the admissibility 
of such treatises in evidence. It was first presented 
in 1854, and the conclusion was grounded upon the 
fact that the writers had not been sworn and could 
not be cross-examined.* It was again before the 
court in 1877, when much importance was attached 
to the fact that medicine is an inductive science, 
and that medical treatises are based on data , con- 
stantly shifting with new discoveries and more accu- 
rate observation. ** The medical work which was a 
' standard ' last year becomes obsolete this year. 
Even a second edition of the work of the same author 
is So changed by the subsequent discovery and 
grouping together of new facts, that what appeared 
to be a logical deduction in the first edition becomes 
an unsound one in the next. So that the same 
author at one period may be cited against himself at 
another.'" 

In holding such treatises inadmissible in Rhode 
Island, the court remarked that * 'scientific men are 
admitted to give their opinions as experts, because 
given under oath; but the book which they write con- 
taining them, are, for want of such an oath, 



1 Harris v. Panama R. R. Co., 3 Bosw. 1, 18. 
* Melvin V. Easley, 1 Jones' Law, 338. 
Huffman v. Click, 77 N. C. 55. 



404 EXPERT TESTIMONY. 

excluded."^ It was said that such books were not 
rendered any the more admissible by the fact that 
the experts had read passages from them, to which 
in cross-examination they had been referred, and in 
relation to which they had answered questions. 
And counsel cannot read from them for the pur- 
pose of contradicting the experts. 

^ 173. Their Inadmissibility in Wisconsin. — 
In a case decided in 1848, counsel had proposed 
to read to the jury certain standard medical works 
"as evidence • or by the way of instruction to 
the jury.*' Objection was made, which the trial 
court sustained. ''This is a matter," said the 
Supreme Court, *' generally within the discretion of 
the court, and, therefore, not a subject of a writ of 
error. In many cases, no doubt, it would be proper 
to allow books of science to be read, though gen- 
erally, such a practice would lead to evil results.''* 

But in a subsequent case the court overruled its 
earlier decision that the admissibility of such treat- 
ises was discretionary with the trial court ; and, 
placing itself in line with the weight of authority 
on this subject, declared the rule to be that medical 
books could not be read to the jury as evidence, 
although such books had been shown by expert tes- 
timony to be standard works in the medical profes- 
sion.' And this doctrine it has adhered to in a 
number of recent cases.* 

§ 174. The Reason Why Such Books should not be 

Received in Evidence. — We have shown that the rule 



1 state V. O'Brien, 7 R. I. 336, 338. 
« Luning v. State, 1 Chandler, 178. 
8 Stilling V. Town of Thorp, 54 Wis. 528. 

< Boyle V. State, 57 Wis. 472; Soquet v. State, 72 Wis. 659; Krenziger 
V. Chicago, etc. R. R. Co., 73 Wis. 168. 



REASON WHY NOT RECEIVED. 405 

that medical treatises are inadmissible in evidence is 
supported by the weight of authority. We also 
think that the rule is supported by the better rea- 
son, and that the cases which announce a contrary 
principle have been unwisely decided. As the ob- 
jections to the receptions of such books in evidence 
have been concisely and forcibly stated by a distin- 
guished writer in a manner that leaves nothing to 
be added, we adopt his language as follows: *' In 
the first place, a sound induction last year is not 
necessarily a sound induction this year, and, as a 
matter of fact, works of this class, when they do not 
become obsolete, are altered, in material features, 
from edition to edition, so that we cannot tell, in 
citing from even a living author, whether what we 
read is not something that this very author now re- 
jects. In the second place, if such books are admit- 
ted as a class, those which are compilations must be 
admitted as well as those which contain the result 
of original research ; the purely speculative must 
come in side by side with the empirical ; so that if 
such treatises are admitted at all, it will be impossi- 
ble to exclude those which are secondary evidence 
of the facts they state. In the third place, such 
books, without expert testimony, cannot generally 
be pointed to the concrete case ; with expert testi- 
mony, they become simply part of such testimony, 
and lose their independent substantive character as 
books. 

** In the fourth place, the authors of such books 
do not write under oath, and hence the authorities 
on which they rest cannot be explored, nor their 
processes of reasoning tested. 

*' Lastly, such books are at best hearsay proof of 



406 



EXPERT TESTIMONY. 



that which living witnesses could be produced to 
prove.''* . 

§ 175. Views of Writers on Medical Jurisprudence 
on this Question. — Some writers on medical jurispru- 
dence have been inclined to disapprove and even to 
resent the exclusion of medical treatises from evi- 
dence. In Beck's Medical Jurisprudence the learned 
author strenuously maintains the right of the pro- 
fessional witness to refer to medical treatises. He 
has manifestly fallen into error in laying down the 
following proposition : 

''In this country, I believe, the objection to med- 
ical books has never been made. There is scarcely 
a case of any note, where testimony has been required, 
in which frequent reference has not been made 
to medical works. They are quoted and commented 
on by the bench and bar, and by the professional 
witnesses."' 

Later writers on medical jurisprudence have taken 
a more just view of this question, and appreciate the 
reasonableness and justice of the rule. In Elwell's 
Medical Jurisprudence we find that distinguished 
writer saying: ' 'the medical witness, therefore, has no 
just grounds of complaint, because his books are not 
received in evidence. The court honors his individ- 
ual opinion as of higher value than that of an out- 
side author. The court presumes, that from reading* 
these authors, close thought and actual observation 
and experience, the witness, under oath, subject to 
cross-examination, will more certainly enlighten the 
case than if it depends upon the published opinions 
of authors, who, perhaps, had a favorite theory to 
support, or an old prejudice to influence them, on a 

1 Wharton's Evidence, § 666. 

* Beck*8 Med. Jurispradenoe, 919. I 



FOR PURPOSES OP CONTRADICTION. 407 

question or subject constantly advancing. Then 
the author himself may have changed his opinions 
since the book was written." ' 

So in Ordonaux's Jurisprudence of Medicine it is 
said: ''The reason of this rule is founded in the 
principle that the expert is called to express a per- 
sonal opinion upon a state of facts of variable inter- 
pretation, and if a book could pronounce it as well, 
it would be superfluous to call him. * * * The 
justice of excluding scientific books from the field of 
evidence becomes immediately apparent, when we 
reflect that they deal necessarily only with universal 
propositions, and inasmuch as every particular case 
wears a complexion of its own, it is indispensable to 
its correct interpretation that some living witness, 
skilled in experience, and able to detect laws of com- 
mon agreement, should be called in as an expert 
umpire. As no dictionarj' of human thoughts will 
ever be written, so no dictionary of physical laws will 
ever be compiled, that shall provide with strictest 
fidelity, the necessary interpretatton for all the vari- 
ously complex and conflicting manifestations of mu- 
tational phenomena, not to speak of the more puz- 
zling sphere of antinomies and apparent contradic- 
tions."' 

^ 176. Their Admissibility for Purposes of Gon- 
.tradiction. — We stated in a former section that the 
rule excluding such treatises from evidence was sub- 
ject to an exception, and that exception relates to 
cases when the books are used to contradict an ex- 
pert. Not that such books can be used to contra- 
dict an expert generally, for that would be as im- 
proper as it would be to introduce them in evidence 

1 £lwell*8 Med. Jurisprudence, 335. 
Ordonaux*8 Jurisprudence of Medicine, 153, 154. 



408 EXPERT TESTIMONY. 

to support his theories/ But where an expert 
in giving his testimony has stated the source of 
his professed knowledge counsel will be allowed 
to show by resorting to that source that the ex- 
pert was mistaken.' In other words the authori- 
ties which an expert has been allowed to cite 
in his testimony may be put in evidence for the 
purpose of contradicting or discrediting him as 
to opinions expressed v by him on their, authority. 
For instance, in a case decided in Michigan in 1882, 
the court said : **He (the expert) borrowed credit 
for the accuracj' of his statement on referring his 
learning to the books before mentioned, and by im- 
plying that he echoed the standard authorities like 
Dodd. Under the circumstances it was not improper 
to resort to the book, not to prove the facts it con- 
tained, but to disprove the statement of the witness, 
and enable the jury to see that the book did not con- 
tain what he had ascribed to it. The final purpose 
was to disparage the opinion of the witness, and 
hinder the jury fitom being imposed upon by a false 
light. The case is a clear exception to the rule which 
forbids the reading of books of .inductive science 
as affirmative evidence of the facts treated of.'" 

While this seems to be the better rule it must 
be said that there is authority against permitting 
the use of scientific books, even in such cases, 
for purposes of contradiction.* But these cases 

1 Forest City Ins. Co. v. Mor^can, 22 ni. Ct. of App. R. 198; Common- 
wealth V. Sturtivant, 117 Mass. 122. 

s Huffman v. Click, 77 K. C. 55; City of Ripon v. Bittel, 30 Wis. 6U; 
Gallagher V. Street Railway Co., 67 Cal. 18; City of Bloomington ▼. 
Shrock,219, 222. 

> Pinney v. Cahill, 48 Mich. 584. 

* State y. O'Brien, 7 R. I. 336, 338 (1862) ; Davis v. State, 88 Md. 15, 
36 (1873) 



RIGHT TO CITE STANDARD AUTHORITIES. 409 

jire opposed to the weight of authority on this sub- 
ject. 

$ 177. The Biflrlit of the Witness to Refer to or 
Cite Standard Authorities. — How far a witness may 
go in referring to medical treatises in giving his tes- 
timony it is difficult to say. A witness certainly has 
the right to refresh his recollection by reference to 
standard authorities, provided the opinion he gives 
is his own and not that of another.* And inasmuch 
as an expert witness is not confined, in giving his 
testimony, to his personal experience, but is allowed 
to state opinions which he has formed in part* from 
the reading of treatises prepared by persons of rec- 
ognized ability,* it is proper that he should be al- 
lowed to stat^ the source from which he derived the 
opinions so formed.' But where a treatise cannot 
be received in evidence it would seem to be improper 
to allow an expert to testify what such work contains 
or says. Hence, in a Wisconsin case, the court held 
that error had been committed in allowing an ex- 
pert to testify as to what was said in standard med- 
ical works upon the subject of strangulation, and as 
to the effects which would be produced on the body 
of the deceased when death resulted from such a 
cause.* And similarly in Massachusetts it was held 
that no error was committed in declining to allow 
the witness to read extracts from standard author- 
ities.* 

1 Sassex Peerage Case, 11 CI. & F. 114, 117; People v. Wheeler, 60 
Gal. 581, 585. 

' See section 19. 

> In State v. Baldwin, 36 Kan. 1, 17, 18 (18S6), it is said not to be im- 
proper lor the expert to state that his opinion was formed from the study 
of boolES and men, and that all the writers and authorities on the subject 
so far as he Isnew supported him in the opinion which he had expressed. 

* Boyle V. State, 67 Wis. 472, 478 (1883). 

• Commonwealth v. Surtivant, 117 Mass. 122, 139. 



410 EXPERT TESTIMONY. 

$ 178. Beadingr from Authorities and Askingr the 
Witness Whether he Agrrees with the Extracts Bead. 

— ^An attempt has been made in some cases to evade 
the rule that medical treatises are inadmissible in 
evidence. The plan pursued has been to read to 
the witness extracts from such treatises and then in- 
quire of him whether he agrees with the parts so 
read. When the books themselves are inadmissible 
in evidence an attempt to evade the excluding rule 
by examining or cross-examining in such a way as 
to get the books before the jury is reprehensible and 
should not be permitted.^ In a case in Illinois the 
trial court allowed counsel on cross-examination to 
ask the expert if he was acquainted with certain 
medical authorities, and upon his responding in the 
affirmative and that they were standard works, coun- 
sel was permitted to read at length from each of the 
authors consecutively and then inquire of the ex- 
pert if he agreed with the opinions which the au- 
thors expressed in the parts read. This was held 
error and the judgment reversed.* 

Even in Iowa, whose courts, as we have seen, al- 
low medical treatises to be received in evidence, it 
has been decided that a question was properly ex- 
cluded which inquired of an expert whether he had 
read the opinions of a tertain author on a certain 
subject, and if so, whether those opinions agreed 
with his own. The court said that the question 
simply sought to elicit a restatement of the opinion 
of the witness, and that, therefore, it was properly 
excluded.' 



1 Marshall v. Brown, 50 Mich. 148; People ▼. MiUard, 63 Mich. 63, 77. 

City of BloominKton v. Shrock, 110 ni. 219. 
• State V. Winter, 72 Iowa, 627. 



BULE IN ENGLAND. 411 

^ 179. Beadingr f^om Scientific Books in Arsrn- 
ment. — ^The same objections which have been deemed 
8u£G[cient to exclude scientific treatises as evidence 
would seem to be equally potent against the right of 
counsel to read extracts therefrom as a part of their 
argument to the jury. It is difl&cult to see how any 
just distinction can be made between the two cases, 
and how any such right can be recognized by any 
court which maintains the inadmissibility of the 
treatise in evidence. We think the better rule is not 
to allow counsel to read to the jury as a part of their 
argument extracts from scientific works, though such 
works are shown to be standard authorities. Such 
is the rule in England, as we shall presently see, 
and such is the rule in this country as recognized by 
the better authorities. There are, however, a few 
cases in which the courts have decided that such a 
right exists, and other cases in which dicta may be 
found which are sometimes referred to as sustaining 
the same idea. But we must consider all such cases 
incorrect in principle and not well considered. We 
shall now examine the cases. 

^ 180. The Rule in Engrland on the Subject. — In 
a case in England, where counsel in his address to 
the jury attempted to quote from a work on surgery, 
it was held he was not justified in doing so. The 
report of the case is as follows : 

'* The prisoner was indicted for the willful murder 
of his wife, and the defense set up was that of in- 
sanity. 

'* Clarkson, for the prisoner, in his address to the 
jury, attempted to quote from a work entitled 
* Cooper's Surgery ' the author's opinions on the sub- 
ject. 



412 EXPERT TESTIMONY. 

^^ A idersoUf B. , thought he was not justified in do- 
ing so. 

** Clarkson — I quote it, my Lord, as embodying 
the sentiments of one who has studied the subject, 
and submit that it is adihissible in the same way as 
opinions of scientific men on matters appertaining 
to foreign law to be given in evidence. 

'* Alderson, B. — I should not allow you to read a 
work on foreign law. Any person who was properly 
conversant with it might be examined, but then he 
adds his own personal knowledge and experience to 
the information he may have derived from books. 
We must have the evidence of individuals, not their 
written opinions. We should be inundated with 
books were we to hold otherwise. 

'' Clarkson — I shall prove the book to be one of 
high authority. 

^^ Alderson, B. — But can that mend the matter? 
You surelj^ cannot contend that you may give the 
book in evidence, and if not, what right have you to 
quote from it in your own address, and do that indi- 
rectly which you would not be permitted to do in the 
ordinary course. 

^^ Clarkson — It was certainly done, my Lord, in 
Naughten^s case. 

^'Alderson, B. — And that shows still more strongly 
the necessity for stringent adherence to the rules 
laid down for our observance. But for the non-in- 
terposition of the judge in that case you would not 
probably have thought it necessary to make this 
struggle now.'" And so in England the law does 
not permit counsel in their argument to the jury to 

1 The Queen v. Crouch, 1 Oox Cr. Gas. 94. 



CASES DENYING RIGHT. 413 

read as part of their argument extracts from stand- 
ard medical works.* 

^ 181. Cases in the United States Denyingr to 
Gounserthe Bight to Bead in Arsrument from Scientific 
Booics. — The cases in this country are somewhat at 
variance on this subject, and we shall first consider 
the cases which deny the existence of any such right 
on the part of counsel. 

In Massachusetts when counsel for the defendant 
in his opening to the jury, contending that cribbing 
was not an unsoundness in a horse, but a habit, pro- 
posed to read from a work on veterinary surgery a 
description of the habit *' a better mode of showing 
what cribbing was, but not as evidence in the case,'* 
it was held no error to refuse to allow him to pro- 
ceed.' So in an earlier case the same court denied 
the right, on the ground that the extracts would, in 
efi*ect, be used as evidence.* 

In Michigan it is well understood that counsel 
have no such privilege. The question was before 
the court in 1879, and was so decided.* 

In North Carolina the question has been carefully 
considered, and the language of the court in deny- 
ing the right, warrants repetition in this connection. 
'*It sounds plausible to say, you do not read it as 
evidence, but that you adopt it as part of your ar- 
gument. But in so doing the counsel really obtains 
from it all the benefits of substantive evidence forti- 
fied by its ' standard ' character. He first proves 
by the medical expert that the work is one of high 
character and authority in the profession, and then 

1 Regina v. Taylor, 13 Cox Cr. Gas. 77. 
« Washburn v. Ouddihy, 8 Gray, 430. 
» ABhworth V. Kittridge, 12 Gush. 194. 
* Fraser y. Jennison, 42 liich.-206, 214. 



414 EXPERT TESTIMONY. 

he says to the jury, ' here is a book of high stand- 
ing, written by one who has devoted his talents to 
the study and explanation of this special subject of 
nervous diseases. He expresses my views with so 
much more force than I can, that I will read an ex- 
tract from: his work and adopt it as a part of my ar- 
gument.' It is evident that the effect of this 
manoeuvre is to corroborate the evidence of the 
medical expert, or other witnesses, by the authority 
of a great name testifying, but not under oath, to 
the same thing as the expert, but with this differ- 
ence, that the author has not heard the evidence 
upon which the expert based his opinion."* 

In Wisconsin a judgment was reversed because 
counsel in his argument had read medical authority 
to the jury, the court saying : '* It is apparent that 
if counsel are allowed to read extracts of medical 
authors to the jury, it would nullify the rule which 
prevents such extracts from being read in evidence. ' '" 

So in a case in the Circuit Court of the United 
States for the Northern District of New York, when 
counsel stated that he desired to read from **Ericson 
on Railway Injuries,'' as a part of his argument, Mr. 
Justice Wallace declared that he could not read 
any portion or extract from the book.' 

The subject was also considered in the Supreme 
Court of California in 1882. Counsel in the trial 
court had been permitted, against objection, to read 
as a portion of his argument from a book called 
'^Browne's MedicalJurisprudence of Insanity." No 

1 Huffman v. Click, 77 N. C. 54. 

« Boyle V. State, 57 Wb. 472, 480 (1883). 

8 Robinson v. N. Y. Central R. R. Co., Albany Law J., Oct. 29th, 1881, 
p. 357. An opinion in this case is found in 9 Federal R., 877, but the 
point referred to is not considered in the opinion. 



CASES SUPPORTING RIGHT. 415 

te&timony had been introduced to show "that this 
was a standard' authority, and while stress was laid 
on this fact by the Supreme Court, the reasoning of 
that court leads to the conclusion that had such 
testimony been introduced it could not have aflfected 
the judgment announced. Judgment was reversed, 
and a new trial granted.^ It seems difficult to un- 
derstand why any stress should be laid on the fact 
that the work was not shown to be a standard au- 
thority. The right to read from the work at all is 
predicated upon the fact that counsel has adopted 
the extract as his own, and made it a part of his 
argument. The theory is that it comes before the 
jury, not as the opinion of the writer, for as such it 
would be inadmissible, but as the opinion or argu- 
ment of counsel. The right of counsel, therefore, 
to make the argument cannot depend upon the fact 
that it is sustained by standard authorities, or by 
any authorities at all. This fact the court over- 
looked, although it reached a correct conclusion on 
the facts. 

§ 182. Cases Sometimes Cited as Supportin^r the 
Bifirht of Connsei so to do. — The most of the cases 
which are usually referred to as sustaining the right 
of counsel to read from scientific treatises in their 
arguments to the jury do not justify on cross-exami- 
nation, and to the full extent, the claim made for 
them. The question is sometimes supposed to have 
been decided in Ohio in 1853, in a case in which 
counsel had been denied the right to read in argu- 
ment to the jury, from a medical book, proven by 
the testimony to be a standard authority. But the 
Supreme Court did not reverse the judgment because 

People V. Wheeler, 60 Cal. 581. 



'416 EXPERT TESTIMONY. 

of the denial of the right claimed, the record not 
showing that the passage which counsel was denied 
the privilege of reading had any relevancy to the 
matter in issue, '*or came within the appropriate 
and legitimate scope of argument." To be sure, 
the opinion contains the following dictum: *'And 
it is not to be denied but that a pertinent quotation 
or extract from a work on science or art, as well as 
from a classical, historical or other publication, may, 
by way of argument or illustration, be not only 
admissible, but sometimes highly proper. And it 
would seem to make no difference whether it was 
repeated by counsel from recollection or read from a 
book.'' But the court adds: '* It w^ould be an 
abus^ of this privilege, however, to make it the pre- 
tense of getting improper matter before the jury 
as evidence in the cause."* The right to read a 
pertinent quotation from a book by way of illustra- 
tion is one thing, and the right to read the opinions 
of authors in connection with the facts of a particular 
case, is another thing. The right to do the first is 
recognized bj'^ the above dictum; the right to do 
the latter does not have the support of even a die- 
tumin the opinion above referred to. 

The question is also sometimes supposed to have 
been decided in Texas in 1857, but that case is '* on 
all fours" with the Ohio case already referi'ed to, 
and what is said of that case is equally applicable 
to this.' 

The Supreme Court of Indiana in 1848 said : **If 
the extracts referred to contained the opinions or 
expositions of learned or scientific witnesses upon a 
point in issue, and such extracts were inadmissible 

I I^gg V. Drake, 1 Ohio St. 286, 288. 
« Wade V. De Witt, 20 Texas, 398. 



READING SCIENTIFIC BOOKS. 417 

when offered as evidence during the introduction of 
testimony by the parties, the court should not have * 
permitted them to be read at any time. But if the 
extracts were merely argumentative, and contained 
no opinions or expositions, which could be regarded 
as properly matters of evidence, we cannot perceive 
any valid objection to their being read or adopted 
as argument, subject, of course, to the instructions 
of the court as to the law of the case."^ 

And the Supreme Court of Illinois in 1868 held 
that error was committed when the attorney for the 
people, against objection, w^as allowed to read to the 
jury extracts from medical works which had not been 
introduced in evidence, and which had not been 
proved by any witness to be authority, and to state 
to the jury that what he had read was authority upon 
the subject of poison by arsenic. The court in the 
course of its opinion, says : ^* If the State's attor- 
ney in such a case, or in any case, read from med- 
ical books in his argument to the jury, the court 
should instruct them that such books are not evi- 
dence, but theories simply, of medical men.''' This 
case is sometimes referred to as supporting the 
theory that counsel have a right to read such books 
in argument, but no such point was actually decided 
in the case. 

'^ 183. Cases Deciding: that Connsel may Bead 
from Scientific Books in Argument.^The Supreme 
Court of Connecticut in 1878 decided that a trial 
court committed an error in declining to allow the at- 
torney for the State in his opening argument to read 
certain portions of ^*Ray's Medical Jurisprudence 

1 Jones V. The Trustees, etc. 1 Smith, 47. 

2 Yoe V. The People, 49 Bl. 410, 412. 

(27) 



418 EXPERT TESTIMONY. 

of Insanity." It appeared that counsel had been 
permitted by tacit consent, for a long series of 
years in that State to exercise that right. The 
court decided, when the question was at length 
formerly raised, that the practice must be regarded 
as having, by repetition, hardened into a rule, upon 
the continued existence of which the counsel had a 
right to rely. *'The question is not, shall such 
reading, be now for the first time permitted ; it is, 
shall it now for the first time be forbidden without 
notice."* But two of the five judges composing the 
court dissented, and were of opinion that, notwith- 
standing the practice to the contrary, the trial court 
ivas right in declining to allow counsel to read from 
such books in argument. 

The Supreme Court of Indiana in 1872, and the 
<?ourt in Delaware have upheld the right of counsel 
to read from standard medical authorities in their 
:argument, the jury being instructed that the extracts 
read were not to be regarded as evidence.' The 
objections to the practice pointed out in later and 
l)etter considered cases do not seem to have occurred 
to the courts announcing these opinions. 

§ 184. Beading: the Testimony of Experts as Con- 
tained in Official Reports. — It sometimes happens 
that expert testimony given in another case is set 
out at length in the official reports, appearing either 
in the decision of the court, or in the statement of 
the case by the reporter. While the opinions of the 
H^xperts have in such cases been expressed under 
oath, counsel have no right to make use of them in 
another case, as no opportunity is afforded in such 

1 state V. Hoyt, 46 Conn, 330, 337. 

2 Harvey v. Stale, 40 Ind. 516 ; State v. West, 1 Houston C. C. 371. 



OFFICIAL REPORTS. 419 

cases for any cross-examination. Such a case arose 
in Illinois, where the State's attorney undertook to 
read to the jury on a murder trial, the testimony of 
a professor of chemistry, as found in an official 
report of another case, concerning the symptoms of 
poisoning by arsenic. This was pronounced to be 
the height of injustice, and judgment was reversed ' 

1 foe V. People, 49 ni. 410, 412. 



420 EXPERT TESTIMONY. 



CHAPTER X. 



COMPENSATION OF EXPERTS. 
SECTION. 

185. Statutory Provisions Concerning the Compensation ot Experts. 

186. Experts need not make a Preliminary Examination unless Special 

Compensation is made. 

187. Experts Cannot be Required to Attend Throughout an Entire 

Trial for the Purpose of Listening to the Testimony. 

188. Whether Experts may Decline to Express an Opinion until Spe- 

cial Compensation is made. 

189. Opinions of Writers on Medical Jurisprudence as to Special 

Compensation. • 

190. American Cases Favoring the Rights to Extra Compensation . 

191. American Cases Denyins: the Right to Extra Compensation. 

192. Extra Compensation Allowed in England. 

193. Effect of Making Extra Compensation. 

194. Special Compensation to Expert Employed by the State in 

Criminal Cases. 

195. Special Compensation to Experts Summoned for the Defense 

Paid out of the Public Treasury. 

196. Taxing Expense of Services of an Expert as Costs. 

§ 185. statutory Provisions Concerninsr the Com- 
pensation of Experts. — In some few States there will 
be found express statutory provisions on the subject 
of the compensation to be made to witnesses who 
have been summoned to testify in the character of 
experts. The tendency of such legislation has been 
in the direction of securing to such witnesses the 
right to extra compensation, if in the discretion of the 



STATUTORY PROVISIONS. 421 

court it should seem proper that such extra allowance 
should be granted. In some cases the language of 
the statute is that the expert '' shall receive " addi- 
tional compensation to be fixed by the court/ 

In other cases the statute reads that such wit- 
nesses ''may be allowed'' extra compensation if 
the court deems it just and reasonable.' On the 
other hand it has been provided in at least one 
State that such witnesses may be compelled to testify 
without any extra compensation. It has been so 
enacted in Indiana.' 

^ Thus, the Code of Iowa declareB : ^'Witnesses called to testify only to 
an opinion founded on special study or experience In any brancli of 
science, or to make scientific or professional examinations, and state the 
result thereof, shall receive additional compensation, to be fixed by the 
court, with reference to the value of the time employed, and the degree 
of learning or skill required ; provided^ that such additional compensa- 
tion so fixed shall not exceed four dollars per day while so employed.''^ 
McClain's Ann. Code of Iowa (Rev. Sts. 1888), p. 1493, § 5090. And 
in North Carolina the statute reads as follows : '^Experts when com- 
pelled to attend and testify, shall be allowed such compensation and 
mileage as the court may, in its discretion, order. ^^ Laws of 1871, ch. 
139, § 13. 

* The provision in Minnesota is as follows : "That the judge of any 
court of record in this State, before whom any witness is summoned, or 
sworn and examined, as an expert in any profession or calling, may, in 
his discretion, allow such fees or compensation as, in his judgment, may 
be just and reasonable.'* Qen. St. 1878, ch. 70, § 8. In Rhode Island 
the provision reads as follows : *^In addition to the fees above provided, 
witnesses summoned and testifying as experts in behalf of the State be- 
fore any justice of the Supreme Court, trial justice or coroner, may be 
allowed and paid such sum as such justice of the Supreme Court, trial 
justice or coroner may deem just and reasonable : Provided^ that the al- 
lowance so made by any trial justice or coroner shall be subject to the 
approval of a justice of the Supreme Court." Pub. St. (1882), p. 733, § 15. 

« The provision is as follows: '*A witness who is an expert in any art, 
science, trade, profession, or mystery, may be compelled to appear and 
testify to an opinion, as such expert, in relation to any matter, when- 
ever such opinion is material evidence, relevant to any issue on trial be- 
fore a court or jury, without payment or tender of compensation other 
than the per diem and mileage allowed by law to witnes8e8,under the same 
rules and regulations by which he can be compelled to appear and tes- 
tify to his knowledge of facts relevant to the same issue.** Indiana Rev. 
St. (1881), p. 94, § 504. 



422 EXPERT TESTIMONY. 

In a case in Minnesota where the statute read 
that the court in its discretion might allow such 
compensation to expert witnesses as it thought just 
and reasonable/ the court construed the statute as 
being evidently designed to leave the nifatter of 
allowing or 4isallowing extra compensation to ex- 
pert witnesses wholly to the discretion of the trial 
judge, and it declared that if there could be a case 
in which it (the Supreme Court) would feel war- 
ranted in reversing an order refusing such allowance 
it would at most only be one where there had been 
a most palpable and gross abuse of discretion.' But 
on the other hand in North Carolina where the 
statute read that experts should be allowed such 
compensation as the court in its discretion might 
order,' the court seemed to think that this conferred 
a right to extra compensation, and it overruled the 
action of the trial court which had declined to grant 
the extra compensation.* 

It is to be observed, however, that these statutes 
do not apply to the case of witnesses engaged in the 
professions, and summoned to testify as to ordi- 
nary facts, rather than to opinions founded on 
special study and experience.^ Thus, in a case in 
the Supreme Court of Minnesota, it is laid down that 
the statute was designed to apply only to cases 
* 'where witnesses are called to testify to an opinion 
founded on special study or experience in any pro- 
fession or calling, or to make scientific or professional 
examinations of some matter connected with the is- 

^ The provison is set forth in full in note 2, p. 421. 

* LeMere v. McHale,30 Minn. 410. 

^ The provision is set out in note 1, p. 421. 

* State V. Dollar, 66 N. C. 626. 

» Snyder v. Iowa City, 40 Iowa, 646. 



PRELIMINARY EXAMINATION. 423 

sues involved in the case, and then state the results, 
and not to cases where a witness, skilled in some pro- 
fession or calling, is called upon to testify as to facts 
within his personal knowledge, although he may 
have acquired his knowledge of the facts while in the 
ordinary practice of his profession, and althougli 
his professional skill may have enabled him to ob- 
sei;ve such facts more intelligently and narrate them 
more correctly. In respect to facts within his^ 
knowledge, there is no reason why a professional 
man should not stand upon an equality with any 
other witness, when called upon to testify to what 
he has seen or personally knows about the facts of 
a particular case. He is only performing. a duty 
which every other citizen is required to do, and is 
not, in our opinion, ' summoned or sWorn and ex- 
amined as an expert,' within the meaning of the 
statute."* 

^ 186. Experts Need not Make a Preliminary Ex- 
aminationy nnless Special Compensation is Made.-"-' 
An expert cannot be compelled to make any pre- 
liminary investigation of the facts involved in a 
case, in order to enable him to attend on the trial 
and' give a professional opinion. For instance, if 
the State desires the opinion of medical experts as 
to the cause of death, it cannot compel them to 
make a post-mortem examination of the body of the 
deceased, for the purpose of qualifying them to ex- 
press an opinion as to what was the cause of death.* 
And in the same way an expert can not be 
required to make a personal examination of one 
alleged to be insane, in order that he may become 

1 Le Mere v. McHale,30 Mina. 410. 

« See Summers v. State, 6 Tex. Ct. of App., 374, 378. 



424 EXPERT TESTIMONY. 

qualified to express his opinion as to the mental 
condition of the one whose sanity is called in ques- 
tion. 

^ 187. Experts Cannot be Reqnired to attend 
Throusrhout an Entire Trial for the Purpose of liisten- 
infiT to the Testimony. — Experts cannot be com- 
pelled to attend a trial from its inception to its close 
and listen to all the testimony given, in order that 
they may become thereby qualified to express an 
opinion upon the evidence. 

Thus, in a case in New York, the court says : 
^*The district-attorney, it is true, might have 
required the attendance of Dr. Hammond on sub- 
poena ; but that would not have sufficed to qualify 
him to testify as an expert, with clearness and cer- 
tainty, upon- the question involved. He would 
have met the requirement of a subpoena if he had 
appeared in court when he was required to testify, 
and given proper impromptu answers to such ques- 
tions as might then have been put to him in behalf 
of the people. He could not have been required 
under process of subpoena to examine the case and 
to have used his skill and knowledge to enable him 
to give an opinion upon any points of the case, nor 
to have attended during the whole trial and atten- 
tively considered and carefully heard all the testi- 
mony given on both sides, in order to qualify him 
to give a deliberate opinion upon such testimonj^ as 
an expert in respect to the question of the sanity of 
the prisoner."* 

^ 188. Whether Experts May Decline to Express 
an Opinion Until Special Compensation is Made.^ 
There can be no doubt that professional men are 

» People V. MoQtgomery, 13 Abbott's Pr. R. (X. Y.),207, 240. 



LISTENING TO THE TESTIMONY. 425 

not entitled, in this country, to claim any additional 
compensation when testifying as ordinary witnesses 
to facts which happen to fall under their observa- 
tion/ But another question arises, when they are 
summoned to testify as to facts of science with 
which they have become familiar by means of 
special study and investigation, or to express opin- 
ions based upon the skill acquired from such 
researches, as to conclusions which ought to be 
drawn from certain given facts. Whether they can 
be compelled to testify in such cases, when no other 
compensation has been tendered than the usual fees 
of witnesses testifying to ordinary facts, is a point 
upon which the cases are not in harmony. In this 
country the cases are nearly balanced, and the 
question must be regarded as still an open one, 
although the weight of authority rather inclines to 
the theory that the expert may be required to an- 
swer without additional compensation. 

The time of professional men is said to be more 
valuable than that of non-professional men. But 
it is very doubtful whether this is true at 
the present time if it ever was true. The 
time of a man engaged in important business 
enterprises is very valuable. There is no way of 
ascertaining whether the time of such a man is 
more or less valuable than that of a professional 
man, and if there were it would not be important 
that it should be determined. Witnesses are not 
compensated according to the value of their time, 
and to undertake to establish any such basis 
of compensation is entirely impracticable. One 
professsional man's time may be of great value, and 

1 Snyder v. Iowa City, 40 Iowa, 646. And see Buchman v. ■ State, 69 
Ind. 1. 



426 EXPERT TESTIMONY. 

another's of little value ; and the same man's time 
may be very valuable on one dayand not especially 
so on another. The same may likewise be affirmed 
of a business or non -professional man's time. It is 
said also that a professional man's knowledge and 
skill constitute a species of property, which he can- 
not be deprived of without compensation. But in 
the administration of justice, a professional man's 
services, at least in the legal profession, can be ex- 
acted of him without compensation. The weight 
of authority in this country establishes the doctrine 
that an attorney can be assigned by the court to 
defend, without compensation, a poor person accused 
of crime, and if he declines to comply with the 
order he may be punished for contempt. If he 
obeys the order he is not, in the absence of a 
statute authorizing it, entitled to any compensa- 
tion from the State for the knowledge and skill thus 
exacted from him.* 

The cases are not in all respects analogous, but 
they are sufficiently so to give rise to an inference, 
not wholly unjustifiable, that if the State has a 
right to avail itself, without compensation, of the 
professional skill of a lawyer, to defend a person 
accused of crime, it also has a right to the opinion 
of a medical expert, without extra compensation, 
as to the sanity or insanity of the person accused. 
The professional knowledge and skill of a lawyer ia 
as much the property of the lawyer as is the like 
knowledge and skill of the physician. The lawyer, 
to be sure, is an officer of the court, and as such is 
subject to the lawful commands of the court. But 

1 Bacon v. County of Wayne, 1 Mich. 461; Rowe v. Yuba Co., 17 Gal* 
61. 



LISTENING TO THE TESTIMONY. 427 

has the court any greater right to the private 
property of one of its officers than it has to the 
property of one who does not stand in official rela- 
tions to it? 

Whatever the answer may be, it may be confi- 
dently asserted that if an expert claims that an 
exception exists exempting him from the general 
rule, which requires all witaesses on the payment 
of the fees allowed by statute to testify as to mat- 
ters within their knowledge, that the burden is on 
him to establish the exception. 

He does not establish the exception by proving 
that his knowledge is a thing of value. A man's 
time is also a thing of value, and yet, at least in 
criminal cases, the law may require a witness to 
attend and testify without the payment of any fees 
for attendance or for mileage. Such laws do not 
contravene any constitutional provision.* 

As is said in one case: * * It is as much the duty and 
interest of every citizen to aid in prosecuting a crime^ 
as it is to aid in subduing any domestic or foreign 
enemy; and it is equally the interest and duty of 
every citizen to aid in furnishing to all, high and low, 
rich and poor, every facility for a fair and impartial 
trial when accused; for none is exempt from liability 
to accusation and trial.'" 

We are inclined to think, at least in criminal 
cases, that an expert, in the absence of a statute 
governing the case, should be required, without 
extra compensation, to testify to matters involving 
professional knowledge and skill. His protection 
against unreasonable demands for such professional 

1 Daily v. Malinomah County, 14 Greg. 20. 
> Israel v. State, 8 Ind. 467. 



428 EXPERT TESTIMONY. 

service lies in the fact that he cannot be required to 
make any personal examination, or preliminary 
preparation, or to attend throughout the trial for 
the purpose of listening to the testimony. His opin- 
ion can be had on a hypothetical case, but as a gen- 
eral rule something more than that is desired, and 
that something cannot be had without suitable 
compensation. 

The question involved is one of much importance, 
and the authorities will be considered somewhat at 
length. 

§ 189. Opinions of Writers on Medical Jurispru- 
dence as to Additional Compensation. — Before exam- 
ining the decisions of the courts on the question, at- 
tention is called to the opinions of the writers on med- 
ical jurisprudence. For while these opinions cannot 
be regarded as authoritative, they are important, and 
entitled to the respectful consideration of the pro- 
fession and the courts. In '* Ordonaux's Jurispru- 
dence of Medicine,''^ that learned and distinguished 
writer says: '*lt is evident that the skill and pro- 
fessional experience of a man are so far his individ- 
ual capital and property that he cannot be compelled 
to bestow it gratuitously upon any party. Neither 
the public, any more than a private person, have a 
right to extort services from him, in the line of his 
profession, without adequate compensation. On the 
witness stand, precisely as in his ofl&ce, his opinion 
may be given or withheld at pleasure; for a skilled 
witness cannot be compelled to give an opinion, nor 
committed for contempt if he refuse to do so. Who- 
ever calls for an opinion from him in chief is under 
obligation to remunerate him, since he has to that 

i§§114, 115. 



CASES FAVORING THE RIGHT. 429 

extent employed him professionally; and the expert, 
at the outset, may decline giving his opinion until 
the party calling him either pays or agrees to pay 
him for it. When, however, he has given his opin- 
ion, he has now placed it among the res gestm, and 
cannot decline repeating it or explaining it on cross- 
examination. Once uttered to the public ear of the 
court, it passes among the facte in evidence.'' 

So in Beck's Medical Jurisprudence the eminent 
author, in considering the subject, comments as fol- 
lows: 

** If the duties on which I have enlarged are 
important to the community, in promoting the pro- 
per administration of justice, ought not the individ- 
uals engaged in them to receive adequate compen- 
sation ? I advert to this, not only because it is just 
in principle, but because it would remove all impu- 
tation of volunteering in criminal cases. No one 
can refuse being a witness when legally summoned; 
every one, I presume, may decline the dissection of 
a dead body, or the chemical examination of a sus- 
pected fluid ; and yet there is not, I believe, an 
individual attending on any of our courts who is 
not paid for his time and services, with the excep- 
tion of such as are engaged in these investigations. 
* * * It is quite time that the medical pro- 
fession in this country should rouse itself to a demand 
of its just rights."* 

^ 190. American Oases Favoringr the Bigrht to 
Extra Compensation. — The earliest of the American 
cases upon this subject seems to have arisen in the 
District Court of the United States for the District 
of Massachusetts, in 1854. The question came up 

1 Beck's Medical Jurisprudence, 920, 921, 



430 EXPERT TESTIMONY. 

before Sprague, J. , in the following manner : During 
a trial upon an indictment, a motion for a capias 
was made by the district attorney, for the purpose 
of bringing in a witness subpoenaed to act as an 
interpreter of some German witnesses, but who had 
refused or neglected to attend. In ansM^er to this 
application, the court said : *'A similar question 
has heretofore arisen, and I have declined to issue 
process to assist in such cases. When a person has 
knowledge of any fact pertinent to the issue to be 
tried, he may be compelled to attend as a witness. 
In this all stand upon an equal ground. But to 
compel a person to attend, merely because he is 
accomplished in a particulai* science, art, or profes- 
sion, would subject the same individual to be called 
upon in every cauge in which any question in his 
department of knowledge is to be solved. Thus, 
the most eminent physician might be compelled, 
merely for the ordinary witness fees, to attend from 
the remotest part of the district, and give his opin- 
ion in every trial in which a medical question shquld 
arise. This is so unreasonable that nothing but 
necessity can justify it. The case of an interpreter 
is analogous to that of an expert. It is not neces- 
sary to say what the court would do if it appeared 
that no other interpreter could be obtained by rea- 
sonable effort. Such a case is not made as the 
foundation of this motion. It is well known that 
there are in Boston many native Germans, and 
others skilled in both the German and English lan- 
guages, some of whom, it may be presumed, might, 
without difficulty, be induced to attend for an ade- 
quate compensation."^ 

1 lu tbe Matter of Roelker, I Sprague, 276. 



CASKS FAVORING THE RIGHT. 431 

The question came before the Supreme Court of 
Indiana in 1877, in Buchman v. The State, ^ the 
statutory provision above noted not having been 
enacted at that time, and that court held that while 
a physician or surgeon could be required to attend as 
a witness to facts without other compensation than 
that provided by law for other witnesses, yet he 
could not be required to testify as to his professional 
opinion, without the compensation of a professional 
fee. In the opinion of the court the professional 
knowledge of an attorney or physician is to be 
regarded in the light of property, and his profes- 
sional services are no more at the mercy of the public, 
as to remuneration, than are the goods of the mer- 
chant, or the crops of the farmer, or the wares of the 
mechanic. **When a physician testifies as an expert, 
by giving his opinion, he is performing,'' days the 
court, *' a strictly professional service. To be sure, 
he performs that service under the sanction of an 
oath. So does the lawyer, when he performs any 
services in a cause. The position of a medical wit- 
ness, testifying as an expert, is much more like that 
of a lawyer than that of an ordinary witness, testify- 
ing to facts. The purpose of his service is not to 
prove facts in the cause, but to aid the court or jury 
in arriving at a proper conclusion from facts other- 
wise proved." The court then goes on to say that 
if physicians or surgeons can be compelled to render 
professional services by giving their opinions on the 
trial of causes, without compensation, then an emi- 
nent physician or surgeon may be compelled to go 
to any part of the State, at any and all times, to 
render such service without other compensation than 

*5i)lQd. 1. 



432 EXPERT TESTIMONY. 

is afforded by the ordinary witness fees. And this 
the court does not think he can be compelled to do. 
This conclusion is based both upon general princi- 
ples of law and the Constitution of the State, which 
provides *'that no man's particular services shall be 
demanded without just compensation.'' 

The question came up again in the case of the 
United States v. Howe^ decided in the United 
States District Court for the Western District of 
Arkansas.* In this case, which was a prosecution 
for murder, a physician summoned as an expert, 
being sworn refused to testify, unless first paid a 
reasonable compensation for giving the results of 
his skill and experience. The court declined to 
regard this refusal as a contempt of court. The 
distinction was sustained between a witness called 
to depose to a matter of opinion depending on 
his skill in a particular profession or trade, and a 
witness called to depose to facts which he saw. 
When he has facts within his knowledge, the public 
have a right to those facts, but the skill and profes- 
sional experience of a man are so far his individual 
capital and property that he cannot be compelled 
to bestow them gratuitously upon any party. That 
the public cannot, any more than a private person, 
extort services from a person in the line of his pro- 
fession or trade without adequate compensation. 

The decision of the Indiana court in the case above 
referred to is in harmony with the decisions of the 
same court holding that an attorney cannot be com- 
pelled without compensation to defend a person ac- 
cused of crime. But the doctrine of that court 



1 12 Cent. L. J. 193. The case does not appear in the Federal Re- 
porter. 



CASES DENYING THE BIGHT. 433 

denying the power to compel an attorney to render 
such services without compensation is contrary to 
the doctrine which generally prevails in this coun- 
try, and its decision as to the right of an expert to 
extra compensation, being predicated on it3 own 
peculiar doctrine applied to attorneys, is correspond- 
ingly weakened as an authority. 

^ 191. American Cases Denying: the Bight to Ex- 
tra Compensation. — A different conclusion to that 
reached in the foregoing cases was arrived at in the 
Supreme Court of Alabama in 1875, in Ex parte 
Dement,^ The prisoner on trial was charged with 
murder, and the physician, after testifying that he 
had seen the deceased after he had received the 
wounds which the prosecution asserted had produced 
death, was asked to state the nature and character 
of the wound received, and its probable effect. This 
he declined to do upon the ground that **he had not 
been remunerated for his professional .opinion, nor 
had compensation for his professional opinion been 
promised or secured. ' ' A fine was thereupon imposed 
upon him for contempt of court. A motion to have the 
fine set aside upon the ground that the court could 
not compel him to testify as a professional expert 
until compensation for his professional opinion had 
been first made or secured, having been overruled, 
the case was taken on appeal to the Supreme Court, 
which affirmed the ruling. In their decision, after 
an ^examination of the authorities, the court say : 
*' It will be noticed that it has not been adjudged in 
any of the cases cited, that a physician or other per- 
son examined as an expert is entitled to be paid for 
his testimony as for professional opinions. The re- 

1 53 Ala. 389. 

(28) 



434 EXPERT TESTIMONY. 

ports contain nothing to this effect. The English 
cases only indicate, and it is implied by the decision 
of Judge Sprague (In the matter of Roelker),^ that 
persons summoned to testify as experts ought to re- 
ceive compensation for their l,os$ of time. And it is 
to be inferred that the judges delivering some of the 
opinions thought the time of such a witness ought 
to be valued, in the language of the English statute, 
' according to his countenance and calling.' But it 
is not intimated by any of them, that a physician, 
when testifying, is to be considered as exercising his 
skill and learning in the healing art, which is his 
high vocation; or that a counselor at law, in the 
same situation, is exerting his talents and require- 
ments in professionally investigating and upholding 
the rights of a client. If this were so, each one 
should be paid for his testimony as a witness, as he 
is paid by clients, or patients, according to the im- 
portance of the case and his own established reputa- 
tion for ability and skill. But in truth he is not 
really employed or retained by any person. And 
the evidence he is required to give should not be 
given with the intent to take the part of either con- 
testant in the suit, but with a strict regard to the 
truth, in order to aid the court to pronounce a cor- 
rect judgment." It is to be observed that this case 
was decided two years prior to the case of Buchman 
V. The State J in which the right to extra compensa- 
tion was grounded, not upon the loss of time, upon 
which the Alabama court comments disapprovingly, 
but upon the ground that professional knowledge 
constitutes property of which he cannot be deprived 
without just compensation. 

^ Sprague^s Decisions, 276. 



CASES DENYING THE RIGHT. 435 

In 1879, the question came up before the Court 
of Appeals of Texas in Summer v. Stated In this 
case, the defendant, being on trial for murder, the 
State called a medical practitioner, one Dr. Spohn, 
who testified that he had attended the deceased, 
and had made a post-mortem examination, but de- 
clined to state the cause of his death. In his testi- 
mony he said: ''I found the deceased breathing, 
but unconscious; had a contusion upon the left side 
of the head, but no exterior evidence of fractured 
skull ; removed the patient to town, and attended 
until the next day, when he died; after death, 
made a post-mortem examination, but I decline to 
state the cause- of the man's death, as my knowl- 
edge was obtained by professional skill and from 
the deductions of experience, which I consider my 
own property, and which the county of Neuces has 
persistently refused to pay for. I have no knowl- 
edge of the actual cause of the man's death, save 
thTough the post-mortem examination alluded to.'' 
The trial court sustained this refusal to disclose the 
knowledge thus acquired, upon the ground that not 
having been paid, he could not be compelled to 
testify as to the same. But the Court of Appeals 
viewed the matter in a different light, and expressed 
itself as follows: '*The court can compel a 
physician to testify as to the result of a post-mor- 
tem examination ; and it is to be regretted that a 
member of a profession so distinguised for liberal 
culture and high sense of honor and duty should 
refuse to testify in a cause pending before the courts 
of his country, involving the life and liberty of a 
fellow being, and the rightful administration of the 

1 5 Court of Appeals, 374. 



436 EXPERT TESTIMONY. 

laws of a common country. Dr. Spohn has doubt- 
less been misled, in taking the position he did, by 
the misconception of certain writers on medical 
jurisprudence." 

The court then refers to Ex parte Dement, and 
concludes as follows : ' * A medical expert could not 
be compelled to make a post-mortem examination 
unless paid for it ; but an examination having al- 
ready been made by him, he could be compelled to 
disclose the result of that examination.'' 

In 1887, the question was raised in the Supreme 
Court of Minnesota, in a trial of one accused of 
rape. A physician was asked: ''Wouldn't it be 
impossible for this prosecutrix, after having been 
raped the night previous, to sleep soundly and do 
her work the next day ?'' He declined to answer, 
and the Supreme Court in passing on it said : ' ' In 
this State no witness can refuse to answer a ques- 
tion on the ground that his answer will be what is 
known as expert evidence ; and this, whether he 
has been summoned or paid as an expert or not."' 

In 1884, a case came before the Supreme Court of 
Illinois. In that case a physician, without making 
any objections to doing so, testified that he had found 
no bruises or signs of violence upon a person, and 
that he found him complaining of ''dizziness, and 
buzzing in his head and ears, and was laboring 
under the hallucination that certain parties were in 
pursuit of him, and were seeking to harm him." 
He was then shown an instrument known as a 
policeman's " billy," and was asked whether a blow 
struck with it would or would not be likely to pro- 
duce upon the person struck a condition similar to 

1 state V. Teipner, 36 Minn. 532, 537. 



EXTRA COMPENSATION. 437 

that in which he found the person in question. The 
witness stated that he regarded the question as 
calling for a professional opinion, and declined to 
answer unless first paid a fee of |10. The Supreme 
Court held that he was bound to answer. They 
say : '* Having without objection stated the condi- 
tion of the patient he had visited professionally, 
the witness could not, under any rule of law, refuse 
to state what would cause the symptoms he discov- 
ered to exist. That was pertinent to the subject 
about which he he had testified voluntarily.'' The 
court thought it unnecessary to consider the gen- 
eral question of whether an expert could be com- 
pelled, without extra compensation, to give expert 
testimony concerning a matter on which he had 
not previouslj^ testified. * 

In a recent case in one of the inferior courts of 
Pennsylvania, it was decided that a physician, sworn 
as a witness at a coroner's inquest, could not de- 
cline to state his opinion as to the effect of certain 
medicines administered to the deceased, but that he 
was bound to answer without the payment of a pro- 
fessional fee.' 

§ 192. Extra Compensation Allowed in Engrland. 
— In Betts V. Clifford,* Lord Campbell declared that 
a scientific witness, or expert, was not bound to at- 
tend upon being served with a suhpcBua, and that he 
ought not to be subpoenaed. If the witness, how- 
ever, knew any question of fact, he might be com- 
pelled to attend, but he could not be compelled 
to attend, to speak merely to matters of opin- 



» Wright V. People, 112 111. 540. 

s Commonwealth y.Hlgglns, 5 Kulp (Pa.), 269. 

5 Warwick Lent Assizes, 1868. 



438 EXPERT I^fiSTIMONY. 

ion. The same distinction was also taken in Webb 
•V. Page,^ which was a case in which a witness had 
been called by the plaintiff to testify as to the dam- 
age sustained by certain cabinet work, and the ex- 
pense necessary to restore or replace the injured ar- 
ticles. The witness having demanded compensation , 
Mr. Justice Maule said: *^ There is a distinction 
between the case of a man who sees a fact, and is 
called to prove it in a court of law, and a man who 
is selected by a party to give his opinion on a mat- 
ter on which he is peculiarly conversant from the 
nature of his employment in life. The former is 
bound, as a matter of public duty, to speak to a fact 
which happens to have fallen within his own knowl- 
edge; without such testimony the course of justice 
must be stopped. The latter is under no such obli- 
gation; there is no such necessity for his evidence, 
and the party who selects him must pay him. ' ' Ac- 
cording to these cases, therefore, an expert is under 
no obligation to testify as to matters of opinion, at 
least in civil cases. If his testimony is desired, the 
party desiring it must first render him such compen- 
sation as his services are worth. It is also to be 
noticed that, in England, it has been held, in civil 
cases at least, that a professional man, even though 
called to testify to facts, and not to opinions, isentitled 
to extra compensation on the higher scale allowed 
under the statute of Elizabeth,' which provides that 
the witness must *' have tendered to him, according 
to his countenance or calling, his reasonable 
charges." In a case decided in 1862, the expenses 
of an attorney, called as a witness, but who did not 

» 1 Car. A. K. 25. 
s 5 Eliz. ch. 9. 



EXTRA COMPENSATION. 439 

give professional evidence, were allowed by the 
Master, on the higher scale allowed professional 
witnesses. This allowance was held proper on mo- 
tion to show cause, and Mr. Chief Justice Eabl said: 
** We do not approve of the rule which is said to 
prevail in criminal cases, that if a surgeon is called 
to give evidence not of a professional character he 
is only to have the expenses of an ordinary witness. 
We think the Master was quite right in allowing the 
expenses of this witness on the higher scale.''* So 
also in Turner v. Turner,* the same principle was 
applied by the vice-chancellor in the case of a barris- 
ter. The theory seems to be that the tinie of pro- 
fessional men is more valuable than the time of non- 
professional men, and that they should be<5ompen- 
sated accordingly. It has been suggested that the 
rule is a hard one,' and it may be considered doubt- 
ful whether it can stand the test of examination. 

§ 193. The Effect of Making: Extra Compensation. 
— ^It is undoubtedly the practice in all important 
cases, for the parties calling experts, or professional 
witnesses, to pay them an additional compensation . 
And it is not considered contrary to the policy of 
the law that these witnesses should be specially 
feed. For if special compensation was not made or 
permitted, the testimony of such witnesses could not 
be secured without great pecuniary loss and perhaps 
could not be secured at all. While the question as to 
the amount paid, or agreed to be paid in such cases, 
cannot affect in the least the regularity of the trial, 



1 Parkinson v. Atkinson, 31 L. J. (N. S.) C. P. 1»9. 
«5 jLr. (N. S.)839. 

3 See Lonergan y. Boyal Exchange Assurance, 7 Bing. 725, 727; Col- 
Uns v. Godefroy, 1 Barn. & Adol. 930. 



440 EXPERT TESTIMONY. 

yet it is stated that it may, perhaps, properly affect 
the credit of the witness with the jury/ 

§ 194. Special Compensation to Experts Employed 
by the State In Criminal Cases. — Even in the absence 
of express statutory provision authorizing it, it has 
been the practice in many of the States, in criminal 
cases, to make a proper compensation to the experts 
summoned by the government. As lawyers who are 
emploj^ed by the government to assist in the pros- 
ecution of the criminal, receive a special compensa- 
tion, so the experts receive a special compensation; 
and this is allowed under certain statutory provisions 
authorizing the allowance of accounts for necessary 
services and expenses. 

^ 195. Special Compensation to Experts Sum- 
moned for the Defense Paid oat of the Public Treas- 
ury. — The Supreme Court of Massachusetts, in 
1870, had its attention called to the right to allow 
the prisoner's counsel, in the case of an indictment 
for murder, to tax as a part of the cost to be paid 
out of the public treasury, extra compensation to 
the experts employed by him, as apart of the neces- 
sary expense of the trial, and as such to be allowed 
under the statutes referred to in the preceding sec- 
tion. As the question is an important one we 
quote from the decision, allowing such taxation, as 
loUows : 

'* Whenever the prosecuting officer thinks the in- 
terests of justice require it, we do not doubt that he 
is authorized, by the statutes above mentioned, to 
employ experts to make proper investigations for 
ascertaining the truth, of a case, and that it is 
proper for him in some capital cases to enable the 

» See People v Mont/i:oDiery, 13 Abb. Pr. (N. S.) 230. 



EXPENSE OF SERVICES. 441 

prisoner's counsel to make similar investigations, 
and to procure the attendance of experts at the 
trial, if the prisoner is not able to do so ; and the 
court is authorized to allow a reasonable compensa- 
tion to such experts for their services, both for at- 
tending the trial, and for their prior investigations. 
This is not on the ground that the statute has given 
to a prisoner the right to such aid at the expense of 
the public treasury ; but on the ground that it is 
for the interest of the commonwealth, in the case 
then before the court, that all proper investigations 
should be made, in order to guard against the 
danger of doing injustice to the prisoner in a case 
where he is exposed to so great a penalty. ♦ ♦ ♦ 
We do not think the prosecuting officer or the court 
would be authorized to allow the charges of all such 
persons as the prisoner would have a right to em- 
ploy as experts at his own expense, without regard 
to their character or to the need of employing them 
in the case. But the assent of the prosecuting of- 
ficer should be obtained beforehand to the employ- 
ment of such experts as maj^ be selected and agreed 
upon, or, in the case of his refusal to assent, ap- 
plication should be made to the court to appoint 
the experts. This would be the more proper course 
of proceeding, if the prisoner desires to have the 
experts called by him paid out of the public treas- 
ury.''* 

^ 196. TaxlnfiT Bxpense of SerTices of an Expert 
as Costs. — If either party sees proper to employ the 
services of an expert for his own benefit, the court 
will not, in the absence of a statutory provision 
authorizing it, require the opposite party to pay for 

1 AttOTQey-General Petitioner, 104 Mass. 537. 



442 EXPERT TESTIMONY. 

the services thus rendered by charging the same as 
a part of the costs of the action/ In an action for 
the dissolution of a partnership and for an account- 
ing, one of the parties employed an expert to ex- 
amine the books of the partnership, and afterwards 
sought to have the expense of such services taxed 
as costs against the losing party. In declining to 
allow them to be so taxed the court said : "If the 
services of an expert are necessary for the proper 
presentation and determination of the case, 
he should be appointed by and under the 
direction of the court. When, as in this 
case, he is the employee of one of the 
parties, the temptation to act in the interest of such 
party must be apparent. Therefore, in order to se- 
cure his fair and disinterested services, he should 
be appointed by the court, and not by either of the 
parties.'' ' 

1 Faulkner y. Hendy, 79 Gal. 265 (1889) ; Mark v. City of Buffalo, 87 
N. Y. 184, 189. And see Haynes v. Mosher, 15 How. Pr. 216. 
'Faulkner v. Hendy, 79 Cal. 265. 



OPINION ON FACTS. 



443 



CHAPTER XI. 



THE WEIGHT OF EXPERT TESTIMONY. 
SECTION. 

197. The Right of a Court to Express an Opinion on the Facts. 

198. The Right of a Court to Give Cautionary Instructions io Certain 

Cases. 

199. Why Expert Testimony Should in Some Cases be Received with 

Caution. 

200. Cases Holding tha{ Expert Testimony Should be Received with 

Caution. 

201. Cases Holding that Expert Testimony Should be Considered as 

other Testimony, and Tried by the Same Tests. 

202. Cases Holding that Expert Testimony is Entitled to Little 

Weight. 

203. Cases Holding that Expert Testimony in Matters of Medical 

Science is Entitled to Great Weight. 

204. Cases Denying that the Testimony of Physicians as to Mental 

Condition is Entitled to Greater Weight than that of Ordinary 
Witnesses. 

205. The Testimony of a Family Physician as to Mental Condition- 

Weight Accorded to. 

206. The Different Theories Discussed. 

207. The Right and Duty of the Jury as to Expert Testimony. 

$ 197. The Rigrht of a Court to Express an Opin- 
ion on the Facts. — ^We have pointed out heretofore 
that it is the province of the court to decide whether 
a witness is competent to give testimony, and whether 
the testimony it is proposed he shall give is admis- 
sible in evidence in the particular case. And we 
have seen that the court may properly instruct the 



444 EXPERT TESTIMONY. 

jury to disregard the testimony of experts when that 
testimony is based on an hypothesis which the jury 
find to be not in accordance with the facts.* It is 
now our purpose to consider the functions of the 
jury in passing on expert testimony in general. It 
is important to keep in mind that in the administra- 
tion of justice there is a division of functions between 
court and jury, which it is essential that both court 
and jury should respect. For while it is the func- 
tion of the court to rule on the competency of 
witnesses and the admissibility of evidence, it is a 
fundamental and well established principle of law 
that the weight which is to be accorded to the evi- 
dence when admitted is a question that lies within 
the province of the jury to determine. 

After the evidence has been heard, and the argu- 
ments of counsel have been made, the trial judge 
instructs the jury as to the rules of law by which 
that body is to be governed in arriving at its verdict. 

In delivering this * 'charge' ' it is understood that 
the judge is at liberty to recall to the minds of the 
jury the testimony which has been given, and that 
it is his duty to state the law by which the matter 
in issue is to be decided. The judge has no right, 
however, to take away from the jury the decision 
of any question of fact, neither can he deprive it of 
the right to determine what credit shall be given to 
the testimony. That the weight to be accorded to 
testimony is a question for the jury is a well estab- 
lished rule as to evidence in general.* And the 

^ See section 32. 

« Bowman v. Smith, 1 Strobh. (S. C.) 246; Keigter v. MiUer, 25 Pa. St. 
481 ; State v. Hogard, 12 Minn. 293; State v. Upton, 20 Mo. 397; Kelly 
V. Emery, 75 Mich. 147, 152; Conely v. McDonald, 40 Mich. 160, 168; 
People V. Barry, 31 rJal. 357. 



OPINION ON FACTS. 445 

same principle in this respect is applied to the tes- 
timony of experts, that is applied to the testimony 
of ordinary witnesses.* 

But while the court informs the jury that it is its 
privilege to say what witnesses are worthy of belief, 
the judge sometimes casts discredit on the testimony 
of a witness by expressing his own opinion concern- 
ing the evidence. Whether the court has the right 
thus to express its own opinion has been a subject 
of conflicting decisions. The English courts have 
recognized the principle that a judge's expression of 
opinion on matters of fact is not reversible error, if 
the jury is informed and made to understand that 
it is not bound to follow the opinion expressed, but 
has the right and duty to decide for itself.' And so 
in the Federal Courts of the United States it is 
settled that a case will not be reversed because the 
court has expressed itself on the facts, provided no 
rule of law has been incorrectly stated, and all mat- 
ters of fact have been ultimately submitted to the 
jury.' Some of the State courts have asserted a 
similar doctrine.* But in some of the States the 

1 Mitchell V. State, 58 Ala. 418; Delaware, etc. Steam-boat Co. v. Starrs, 
69 Pa. St. 36, 41 ; Sikes v. Paine, 10 Ired. (N. C.) Law, 282 ; Davis v. State, 
35 Ind. 496; Forgery v. First National Bank, 66 Ind. 1^; Howard v. 
Providence, 6 R. I. 516; Pannell v. Commonwealth, 86 Pa. St. 260, 269; 
Snyder v. State, 70 Ind. 349; Johns v. Thompson, 72 Ind. 167; Flynt v. 
Bodenhamer, 80 N. C. 205; State v. Secrest, 80 N. C. 450; Keithsburg, 
etc. R. R. Co. V. Henry, 79 111. 290; Pratt v. Rawson, 40 Vt. 183, 188; 
Tatum V. Mohr, 21 Ark. 354; Humphries v. Johnson, 20 Ind. 190. 

« Taylor v. Ashton, 11 M. & W. 400; Davidson v. Stanley, 2 M. & G. 
721 ; Darby v. Ouseley, 1 H. & N. 1 ; Solarte v. Melville, 7 B. & C. 430. 

» Lovejoy v. United States, 128 U. S. 171; Rucker v. Wheeler, 127 U. 
S. 85, 93; United States v. Reading R.R. Co., 123 U. S. 113, 114; St. 
Louis, etc. R. R. Co. v. Vickers, 122 U. S.360; Vieksburg, etc. R. R. Co. 
V. Putnam, 118 U. S. 545, 553; Tracy v. Swartout, 10 Pet. 80; Games v. 
Stiles, 14 Pet. 322. 

* Sheahan v. Barry, 27 Mich. 217, 226; People v. Rathbun, 21 Wend. 
(N. Y.)509; Commonwealth v. Child, 10 Pick. (Mass.) 252; Swift v. 



446 EXPERT TESTIMONY. 

courts are expressly prohibited, either by constitu- 
tional or statutory provision, from charging juries 
in respect to matters of fact/ When such constitu- 
tional or statutory provisions exist it is unquestion- 
ably reversible error for a judge to express any opin- 
ion as to the credibility of witnesses, or as to the 
weight of the testimony.' And in some cases, where 
no such constitutional or statutory restraints exist, 
there have been expressions to the effect that the 
practice of expressing an opinion on the facts is a 
dangerous one, and not to be generally indulged in, 
and not a few cases have been reversed where it has 
been done.' 

§ 198. The Bigrlit of a Court to Give Cautionary 
Instructions in Certain Cases. — The expression of an 
opinion by the court as to whether a witness is 
worthy of belief, or as to whether certain testimony 
is worthy of credit, is one thing, and the giving by 
the court of cautionary instructions concerning the 
credibility of certain classes of witnesses, or the pro- 
bative value of certain kinds of testimony, is another 
matter, and one that we shall now consider. The 
question is whether a court can properly give cau- 

Stevens, 8 Conn. 431; Gale v. Spooner, 11 Vt. 152; Bruch v. Carter, 32 
N. J. Law, 654, 555; Ware v. Ware, 8 Me. 42, 59; Flanders v. Colby, 28 
N. H. 34, 39; Patterson v. Colebrook, 29 N. H. 94; Ames t. Cannon 
Blver Mfg. Co., 27 Minn. 245; Bonner v. Herrick, 99 Pa. St. 220. 

1 See Ala. Code, 1886, § 2764; California Const, of 1879, art. 6, § 19; 
Georgia Rev. St. 1873, § 3284; Mass. Pub. Sts. 1882, cb. 153, § 5; Nevada 
Const. 1864, art. 6, § 12; S. Car. Const. 1868, art. 4. § 26; Tenn. Const. 
1870, art. 6, § 9. 

2 Crutchfield v. Richmond, etc. R. R. Co., 76 N. C. 320; State v. Small- 
wood, 75 N. C. 104; Ledbetter v. State, 21 Tex. App. 344; Klmbro v. 
Hamilton, 28 Tex. 560; Morris v. Lachman, 68 Cal. 109, 113. 

a See People v. Gastro, 75 Mich. 127, 128; People v. Lyons, 49 Mich. 
78, 82; Beurmann v. Van Buren, 44 Mich. 496; Hall v. People, 39 Mich. 
717; Richards v. Fuller, 38 Mich. 653, 057; Welch v. Ware, 32 Mich. 77; 
Perrott v. Shearer, 17 Mich. 48; Knowles v. People, 15 Mich. 408, 412. 



CAUTIONARY INSTRUCTIONS. 447 

tionary instructions concerning the value and weight 
of expert testimony. 

That in certain classes of cases courts are allowed 
to give cautionary instructions is clear enough. For 
example, take the case of detectives, who have 
entered into the apparent prosecution of the pur- 
poses of a conspiracy in order that they may there- 
after disclose it, and bring the parties concerned 
therein to justice, courts have been allowed to say 
to juries that the testimony of this class of individ- 
uals is to be received with great caution.' 

Again, courts have been allowed to inform juries 
that great caution is to be used in considering the 
testimony of an accomplice.* So they have been 
permitted to instruct juries that they may view with 
strong suspicion the testimony of witnesses who, 
with intention to deceive, have sworn wilfully and 
knowingly to that which was false.' And in some 
cases courts have been sustained in telling juries 
that the law regards with suspicion the testimony 
of persons nearly related to the accused, and that 
the jury may properly take into consideration the 
relation of the witnesses in estimating the credit to 
be given to their testimony.* Likewise when wit- 
nesses have exhibited feeling and partiality in giving 
their testimony, a trial court has been sustained in 

iPrewit V. People, 6 Neb. 384; Heldt v. State, 20 Neb. 492; State v. 
McKean, 4 Gray, 29, 31 ; Commonwealtb y. Graves, 97 Mass. 115 ; Rex 
V. Despard, 28 Howell, St. Tr. 346, 498. And see Moller v. Moller, 115 N. 
Y. 468. 

s People y. Jenaess, 5 Mich. 305; State y. Williams, 42 Conn. 261; 
People y. Hare, 67 Mich. 518. 

s Knowles y. The People, 15 Mich. 412; Hamilton y. People, 29 Mich. 
173; People y. Sprague, 53 Cal. 491; State y. Gee, 85 Mo. 647; People 
V. Rlghetti, 66 Cal. 185. 

* State y. Nash, 8Ired. (N. C.) 35; State y. Ellington, 7 Ired. (N. C.) 
67; Plo y. Bu3h, 71 Cal. 602. 



J 



448 EXPERT TESTIMONY. 

pointing out this fact to the jury as being a circum- 
stance likely to affect their credit/ And in some cases 
courts have been allowed to tell juries that proof of 
casual admissions constituted weak evidence.* A 
jury m^y properly be cautioned concerning the care 
to be exercised in considering the testimony of dis- 
agreeing witnesses ;' and they may be told that the 
mode of impeaching a witness by proof of contradic- 
tory statements is liable to '* close search and careful 
scrutiny. ' '* 

In the light of the above rulings the question 
recurs, whether a trial court can tell a jury that 
expert testimony is to be received with caution, or 
that it is of little value, or that it is of great value. 

^ 199. Reasons why Expert Testimony Should be 
Received with Caution. — It is asserted, and with 
much truth, that experience has shown it to be an 
easy matter for opposing parties to array expert 
against expert, and opinion against opinion, to 
almost unlimited extent. Thus, Mr. Justice Miller, 
after stating that he, himself, had no confidence in 
the impression produced by any number of ex parte 
afl&davits of experts, has said : **My own experience, 
both in the local courts and in the Supreme Court 
of the United States, is, that whenever the matter 
in contest involves an immense sum in value, and 
when the question turns mainly upon opinions of 
experts there is no difficulty in introducing any 
amount of them on either side.'"* Again, it is 

1 state V. Nat, 6 Jones (N. C), 114. 

« Haven v. Markstrum, 67 Wis. 493; Jones v. Knauss, 31 K. J. Eq. 609. 
But see Tenor v. Johnson, 107 Ind. 69; Lewis v. Christie, 99 Ind. 377. 

8 Johnson v. McKee, 27 Mich. 471. 

* Keator v. People, 32 Mich. 487. 

^ Middlings Purifier Co. v. Christian, 4 Dillon, 448, 469 (1877.) And 
in Beauhien y. Cicotte, 12 Mich. 459, 502, Judge Camphell alludes to 



CAUTIONARY INSTRUCTIONS. 449 

said, that expert witnesses are in the employ 
of those who summon them, and, therefore, as a 
class, are not as free. from bias as ordinary wit- 
nesses. Being in the employ of those who call them, 
they are found more liable to bias, and more dis- 
posed to act as hired advocates than are disinterested 
witnesses. Thus, in a case in the Supreme Court of 
California, that court has said : '^Expert witnesses 
ought to be selected by the court, and should be 
impartial as well as learned and skilful. A contrary 
practice, however, is now, probably, too well estab- 
lished to allow the more salutary rule to be enforced, 
but it must be painfully evident to every practitioner 
that these witnesses are generally but adroit advo- 
cates of the theory upon which the party calling 
them relies, rather than impartial experts, upon 
whose superior judgment and learning the jury can 
safely rely. Even men of the highest character and 
integrity are apt to be prejudiced in favor of the 
party by whom they are employed, and, as a matter 
of course, no expert is called until the party calling 
him is assured that his opinion will be favorable.''^ 
So true is this that, as is elsewhere shown,* in some 
countries the experts are designated by the court, the 
parties not being free to summon whomsoever they 
please. Again, an expert is called to give opinion tes- 
timony, while ordinary witnesses testify, as a rule, 
only to facts. Not only is testimony to matter of 
fact apt to be more reliable in the very nature of 
things than is testimony concerning that which is 
mere matter of opinion, but the same safeguards in 

the fact, ^<tbat in all important litigations tlie experts are found arrayed 
against each other.'' 

1 Grigsby v. Clear Lake Water Co., 40 Cal. 406. 

>See section 41, p. 92. 

(29) 



450 EXPERT TESTIMONY. 

the way of punishment for perjury cannot be thrown 
around the one class of testimony that can be in the 
case of the other. Thus it has been said that, ** as 
a rule, where an issue is capable of being proved by 
facts, evidence of a lesser degree, or of a more un- 
certain character, ought not to be admitted. Liabil- 
ity of a witness to the penalties of perjury, if he 
corruptly misstate facts, is one of the securities for 
truth which ought not to be removed unless on ne- 
cessity. And in proportion as opinion is admitted, 
that liability is removed.'*^ Moreover, expert testi- 
mony is largely based on hypothetical statements 
of fact, and the value of the opinion based thereon 
must depend, at the best, on the truth of the facts 
assumed, which, therefore, need to be carefully 
scruntinized. 

It is not surprising, therefore, to find the courts 
saying that, as this kind of evidence is fraught with 
danger,* it ought to be received with caution, 
at least in cases where the testimony does not 
relate to precise scientific facts, or to the neces- 
sary conclusions which result from facts stated, 
but consists in mere matter of opinion as to the 
probable inferences which are to be drawn from 
certain facts, or is speculative and theoretical in 
its nature. We shall see that courts have not hesi- 
tated in such cases to instruct juries that expert tes- 
timony should be received with caution. But we 
do not understand that an instruction to a jury that 
expert testimony is to be received with caution, is 

1 Hayes v. WeUs, 34 Md. 513. 

>^'The rule which admits professional opinions to be received as evi- 
dence, a kind of evidence so little reliable, and so fraught with danger 
to those whose rights and interests it is to affect or control, ought not to 
be extended." Parlcer v. Johnson^ 25 Ga. 583. And see People v. Mor- 
rigan, 29 Mich. 6. 



RECKIVKD WITH CAUTION. 451 

equivalent to telling them that such testimony is of 
no value, or even of very little value. After cau- 
tiously considering such testimony, to see upon what 
it rests, thereas^ons given for it, the experience of the 
witness, his means of knowledge, his skill, his free- 
dom from bias, the testimony may be of great or of 
little value, as the case mav be. 

$ 200. Gases Holdingr that Expert Testimony 
Should be Received with Caution. — For reasons stated 
in the preceding section, it has been declared in a 
number of cases that expert testimony is to be re- 
ceived with caution, and even, as sometimes ex- 
pressed, with great caution. 

Thus, in a case in the Irish court of exchequer it 
is stated generally that *'all evidence of opinion 
ought to be received and considered with narrow 
scrutiny, and with much caution."* 

The Supreme Court of South Carolina declare that 
' *all testimony founded upon opinion merely is weak 
and uncertain, and should in every case be weighed 
with great caution.'" 

The Supreme Court of Mississippi, speaking of 
the evidence of experts in handwriting, declares that 
it ''ought to be received and weighed cautiously by 
the jury."* 

In a case in California which involved the compe- 
tency of a civil engineer to testify as an expert as to 
the eflPect of obstructions in causing back-water, the 
court, discussing expert testimony in general, say: 
''such evidence should be received with caution by 
the jury, and never allowed, except upon subjects 



1 McFadden v. Murdock, I. R. 1 C. L. 211, 218 (1867). 

> Benedict v. Flanlgan, 18 S. C. 606. 

> Moye y. HerndoD, 30 Miss. 118. 



452 EXPERT TESTIMONY. 

which require unusual scientific attainments or pecu- 
liar skill. ''^ 

The Supreme Court of Ohio say: **Medical testi- 
mony is of too much importance to be disregarded. 
When delivered with caution, and without bias in 
favor of either party, or in aid of some speculation 
and favorite theory, it becomes a salutary means of 
preventing even intelligent juries from following a 
popular prejudice, and deciding a cause on incon- 
;sistent and unsound principles. But it should be 
.given with great care and received with the utmost 
caution, and, like the opinions of neighbors and ac- 
.quaintances, should be regarded as of little weight 
if not well sustained by reasons and facts that admit 
of no misconstructions, and supported by authority 
of acknowledged credit.''* The question involved 
was that of the insanity of the person. 

In a recent tjase in one of the Circuit Courts of the 
United States where expert testimony in handwrit- 
ing had been introduced the jury were charged as 
follows: "Now, gentlemen, assuming that both of 
these (expert) witnesses are disinterested and un- 
biased, and otherwise credible, the nature of that 
class of testimony is such that it should be received 
and acted upon by you with much caution. Testi- 
mony of that kind is not entitled to the same weight 
as the testimony of persons who speak concerning , 
matters within their personal observation, because 
these witnesses simply express opinions which they 
entertain, founded on the comparison made, and 
you should regard their statements in this matter as 
opinions merely, and give them such weight only as 



Gri^by t. Clear Lake Water Co., 40 Cal. 396, 406 (1870) • 
« Clark V. State, 12 Ohio, 483, 491. 



RECEIVED WITH CAUTION. 453 

you think they deserve, considering the experience 
which the experts have had in making such com- 
parisons/ '* 

The Supreme Court of Florida has sustained the 
following charge to a jury in a capital case: **The 
testimony of a witness as a man of science on a sub- 
ject with which he is familiar from knowledge or 
experience, is admissible, and you can judge of its 
force and application from the character of the tes- 
timony, the case under consideration, and the sub- 
ject-matter under examination; and you may apply 
its force as you believe and understand its relation 
to the case. If they testify to a scientific truth , they 
are entitled to belief. * Yet they may be received 
with caution.''* 

In a case in New York the distinction is brought 
out between expert testimony as to facts and as to 
matter of opinion, in a^charge to a jury, which was 
as follows: 'There is in regard to the testimony of 
these physicians a distinction to be made ; you are 
to distinguish between the facts they testify to and 
their opinions. When a physician testifies in regard 
to a fact, you are to believe it just as you are to be- 
lieve any other man of equal credit. When they 
testify to a fact that they know from their study of 
disease, and their characteristics, and tell us what 
there is of the facts, you are to believe it. When 
they testify in regard to opinions it becomes a dif- 
ferent question. * * * In considering their tes-- 
timony you will consider, in reference to each 
statement, whether it is a fact or an opinion; you 
will apply this rule to all the facts connected with? 

1 United States v. Pendergast, 3*i Fed. Rep. 198,200 (1887) 
s Newton v. The State, 21 Fla. 56, 102. 



454 EXPEBT TESTIMONY. 

the case that are derived from the investigations 
of these physicians. * * * We are not bound 
to believe the opinion of doctors, unless they are 
compatible with sound sense. Doctors give many 
opinions which are merely speculative; they have 
their theories and speculations, and the difficulty 
with them many times seems to be that they are 
h^-rdly willing to admit that there is much in the 
human system, its ailments and diseases, that 
is beyond their knowledge and comprehension. 
You are not bound to believe the opinion of a 
doctor unless it comports with your common sense, 
and is consistent with the facts in the case."* No 
exception was taken to this instruction. 

In a case in the Supreme Court of New York, Mr. 
Justice Daniels says : '*A mere expression of opin- 
ion as to the weight or effect of the evidence, which 
still allows the jury to be guided and governed by 
their own convictions^ forms no proper ground for 
an exception. That may be proper, and even ne- 
cessary, under certain circumstances, to enable the 
jury to give appropriate consideration to evidence 
requiring their judgment. The evidence of witnesses 
who are brought upon the stand to support a theory 
by their opinions, is justly exposed to a reasonable 
degree of suspicion. They are produced, not to 
swear to facts observed by them, but to express 
their judgment as to the effect of those detailed by 
others, and they are selected on account of their 
ability to express a favorable opinion, which, there 
is great reason to believe, is, in many instances, the 
result alone of employment and the bias arising out 
of it. Such evidence should be cautiously accepted 

1 People V. Montgomery, 18 Abbott's Pr. 207, 220, 223. 



RECEIVED WITH CAUTION. 455 

as the foundation of a verdict, and it forms a very 
proper subject for the expression of a reasonably 
guarded opinion by the court. That is often neces- 
sary to prevent the jury from being led astray by 
giving too much weight to evidence really requiring 
to be suspiciously watched, and which in many in- 
stances has induced unwarranted verdicts, discredit- 
able to the administration of justice, as well as 
exceedingly detrimental to the public interest. 
When the comments of the court are extended no 
farther than that, no fault can be found with them 
on the part of the accused." The case in which 
this language was used was a criminal one, the 
accused having been convicted of committing an 
assault upon his wife with intent to kill. Hia 
defense was insanity, and the accused claimed that 
the trial court had unduly discredited the testimony 
of the experts sworn on his behalf.* 

In a recent case the Supreme Court of Michigan 
passed on the following instruction : **The value 
of expert testimony depends on the circumstances^ 
of each case, and of those circumstances the jury 
must be the judges. The jury must determine the 
weight to be accorded to it, but in all cases the tes- 
timony of experts is to be received and weighed 
with great caution. The evidence of a witness who 
is brought upon the stand to support a theory by 
his opinion is testimony exposed to a reasonable 
degree of suspicion, which there, is great reason to 
believe is, in many instances, the result alone of 
employment and his bias arising out of it. In many 
cases, it is to be feared, by giving too much weight 
to testimony of experts, juries have been induced to 

I Templetba v. People, 3 Hqd, 357 ; aOlrmed 60 N. Y. 643 (1875) . 



456 EXPERT TESTIMONY. 

render unwarranted verdicts, discreditable to the 
administration of justice, as well as exceedingly 
detrimental to the public interests.'' The ques- 
tion involved was that of the insanity of the ac- 
cused, and there was a conflict in the testimony 
of the experts. The Supreme Court in passing 
on the above instruction said : '* As the case stood 
we do not think the expressions of the trial judge 
concerning expert testimony require any censure or 
animadversion.''* 

$ 201. Cases Holdingr that Testimony Should be 
Considered as Other Testimony and Tried by the 
Same Tests. — It has been said in some of the cases 
that expert testimony is to be considered like any 
other testimony, and tried by the same tests. It is 
undoubtedly true that, like any other testimony, it 
is not conclusive upon the jury unless it is believed, 
and in forming an opinion upon it, as in forming 
an opinion upon the testimony of any ordinary wit- 
ness, the jury will consider the character of the wit- 
ness, his appearance on the stand, his intelligence, 
his freedom from bias and his means of knowledge, 
as well as his liability to mistake in cases where his 
testimony relates to matter of opinion. In weigh- 
ing the testimony of experts, as in weighing the tes- 
timony of witnesses in general, all these things are 
to be considered. 

In a case in the Circuit Court of the United States 
in 1871, the question being as to the infringement 
of a patent, Mr. Justice Sawyer instructed the jury 
as follows : '* The testimony of the experts, which 
has been introduced, you are to consider like any 
other evidence. You are to try it by the same tests 

1 People V. Perriman, 40 N. W. Rep. 426 (1888). 



COJ^SIDERED AS OTHER TESTIMONY. 457 

that you apply to the evidence of other witnesses, 
and give it just such credit and weight as you deem 
it entitled to from all the circumstances, and no 
more/" 

In a case in the Supreme Court of Indiana in 
1877, the same doctrine was asserted. The court 
say: *'The value of such testimony depends as 
much upon all the facts and circumstances con- 
nected with each particular case as that of any other 
class of witnesses. It is for the court first to decide 
whether a witness is competent to testify as an 
expert ; but, when permitted to testify, an expert 
stands substantially on the same footing as any other 
witness as to credibility. His testimony may be 
valuable, or it may not be, depending upon the 
manner in which it may be able to withstand the 
usual tests of credibility which may be applied to 
it. * * * Experts may not well understand the 
subject about which they testify; they may be 
biased in favor of the party who calls them : they 
may base their conclusions on false theories or on 
mistaken premises, or the facts may be against 
them. These objections, when well taken, go only 
to their credibility, and we know of no rule which 
applies them with greater force to experts than to 
other witnesses.''* And subsequently in the same 
court this doctrine was adhered to.' 

In a case in the Supreme Court of Louisiana in 
1849 that coiirt declares: ''But those opinions (of 
medical men) are not conclusive. They are to be 
weighed, as other evidence, by the jury, as the dis- 



* Carter v. Baker, 1 Sawyer, 512, 525. 

* Eggere v. Eggers, 57 Ind. 461. 

< Cnneo v. Bessoni, 63 Ind. 624, 528. 



458 EXPERT TESTIMONY. 

trict judge properly charged. '*' In another case 
which came before the same court in 1869 the court 
observes: **That the opinions of medical men are 
freely received upon questions of professional skill, 
it is equally true that they ought also to state the 
facts on which those opinions are based, and that" 
the opinions themselves are not conclusive, but must 
be weighed as other evidence."* In the Louisiana 
cases the point the court had before it was whether 
the jury were not bound by the testimony of the 
experts — ^whether that testimony was not absolutely 
conclusive on them. 

In a case in Kansas that court states that it thinks 
as good a general rule as can be laid down is that 
announced by Mr. Justice Sawyer in the case refer- 
red to in the beginning of this section, but it goes 
on to say that there may be cases in which it might 
be proper to charge that expert testimony should 
be received with caution:' The court did not think 
it was proper to give such a caution in the particu- 
lar case, as in that case the testimony was given by 
physicians of high standing, and the court thought 
their testimony entitled to great weight. Whether 
an instruction that a certain class of testimony should 
be received with caution is equivalent to an instruc- 
tion that it is entitled to little weight is a matter to 
be considered later.* 

^ 202. Gases Holding: that Expert Testimony is 
Entitled to liittie Wei^lit. — It cannot be denied that 
expert testimony has been subjected to much unfa- 
vorable criticism, and that authors and courts have 

1 state V. Bailey, 4 La. Ann. 376. 

s Chandler v. Barrett, 21 La. Ann. 68, 62. 

s AtohisoD, etc. R. R. Co. v. Thul, 32 Kan. 255, 261. 

« See section 206. 



ENTITLED TO LITTLE WEIGHT. 459 

in some cases not hesitated to assert that it is en- 
titled to but little credit. While much of the cen- 
sure that has been visited upon this class of testi- 
mony may well be excused, yet it is a mistake to 
assume that expert testimony as a whole is of little 
value. For there are many classes of cases in which 
such testimony is of the highest value, and where 
courts could not get along at all without it. That 
in many cases such testimony is of little value, and 
even of no value, every one, who has had any expe- 
rience with expert testimony, knows. In some sub- 
jects, especially in cases relating to patents and 
handwriting, this class of testimony has been much 
discredited. And in some cases courts have in- 
structed juries concerning the unsatisfactory char- 
acter of this kind of evidence. 

For instance, the following instruction has been 
sustained: ** Evidence of this character (comparison 
of handwriting by experts) has been introduced in 
the case at bar, and it will be for you to say how 
much weight shall be given to such testimony, tak- 
ing into consideration the amount of skill possessed 
by the witnesses. But while it is proper to consider 
such evidence, and to give it such weight as you 
•may think it justly entitled, yet it is proper to re- 
mark that it is of the lowest order of evidence, or 
evidence of the most unsatisfactory character. It 
cannot be claimed that it ought to overthrow pos- 
itive and direct evidence of credible witnesses who 
testify from their personal knowledge, but it is most 
useful in cases of conflict between witnesses as cor- 
roborating witnesses.'* Counsel claimed that the 
above instruction was erroneous, as it practically 
destroyed expert evidence, by taking from it the 



460 EXPERT TESTIMONY. 

force and weight given to it by law. But in sustain- 
ing the instruction the court says: ''The observa- 
tion and experience of daily life, as well as in the 
administration of justice in the courts of law, must 
be applied by judges and jurors to enable them to de- 
cide to what extent the mind should be influenced 
by evidence submitted to them. * * * The ef- 
fect, then, which all evidence has upon the mind is 
determined by observation and experience, the only 
original instructors of wisdom. These teach that 
the evidence of experts is of the very lowest order, 
and the most unsatisfactory character. We believe 
that in this opinion experienced laymen unite with 
members of the legal profession."* And in Vermont 
the Supreme Court of that State declared, that if 
the trial judge had ''told the jury, what to be sure 
is unusual, as expressed in an early case, that it (tes- 
timony of experts in handwriting) was entitled to 
but little weight as proof of the disputed fact, but, 
after all leaving it for them to weigh and consider, 
it would not have been an error.'" The same court 
in a late case say: "It would be trite to repeat the 
very uniform expression of judges and the books as 
to the small value of this kind of evidence, yet it is 
warrantable to say that such expression is corrobo- 
rated by our own observation and experience in judi- 
cial administration . ' " In a case in the United States 
Circuit Court Mr. Justice Grier in speaking of ex- 
pert testimony in the matter of handwriting, says : 
"Whether the signatures appear to be done by the 
same hand, that, I think, is a question you can put 

1 Whittaker v. Parker, 42 Iowa, 586. See, too, Borland y. Walwrath, 
33 Iowa, 133. 
« Pratt V. KawsoD, 40 Vt. 183, 188. 
« Wright V. Williams' Estate, 47 Vt. 222, 234. 



ENTITLED TO LITTLE WEIGHT. 461 

to an expert, though the testimony is of rather a 
dangerous character and not much to be relied on/ '* 
In another case the same justice says: * 'Opinions 
with regard to handwriting are the weakest and least 
reliable of all evidence as against direct proof of the 
execution of an instrument.''* In the New Jersey 
Court of Chancery the following statement has been 
made: '*A11 doubt respecting the competency of the 
opinion of experts in handwriting based upon mere 
comparison, as evidence, have been removed by 
statute; but it still must be esteemed proof of low 
degree. Very learned judges have characterized it 
as much too uncertain, even when only slightly op- 
posed, to be the foundation of a judicial decision.'" 
In a case in the Supreme Court of the District of 
Columbia it has been said: **The signatures of these 
papers are claimed not to be genuine, and here we are 
treated to the opinion of half a dozen men who claim 
to be experts, and who come up and give us their 
views as to the genuineness of these signatures. Of 
all kinds of evidence admitted in a court, this is the 
most unsatisfactory. It is so weak and decrepit as 
scarcely to deserve a place in our system of jurispru- 
dence. ' '* And, notwithstanding the evidence of the 
experts, the court declared that it was satisfied as to 
the genuineness of the signatures. In the Su- 
preme Court of Michigan it is said: * 'Every one 
knows how very unsafe it is to rely upon any one's 
opinion concerning the niceties of penmanship . The 
introduction of professional experts has only added 
to the mischief, instead of palliating it, and the re- 

1 United States v. Damaud, 3 Wall. Jr. 143, 183. 

« Turner v. Hand, 3 Wall. Jr. 88, 115. 

< Mutual Benefit Life Ins. Co. v. Brown, 30 N. J. £q. 193, 201. 

* Cowan v. Beall, 1 McArthur, 270, 274. 



462 EXPERT TESTIMONY. 

Bults of litigation have shown that these are often 
the merest pretenders to knowledge, whose notions 
are pure speculation. Opinions are necessarily re- 
ceived, and may be valuable, but at best this kind 
of testimony is a necessary evil.''* Lord Presi- 
dent Boyle in the Scotch court says: **A set of 
engravers have been examined on both sides, to 
whose testimony I* pay very little attention, as 
their opinions are very little to be depended upon. 
In this as in all other cases they take different sides. 
It seems to be a part of their profession to take differ- 
ent sides. ' '* In a case in England, in 1822, Abbott, C. 
J., speaking of expert testimony on the subject of 
handwriting said of it: *'I have been long of the 
opinion that evidence of this description, whether 
in strictness of law receivable or not, ought, if re- 
ceived, to have no great weight given to it.'" And 
in the famous Tracy Peerage case, in the House 
of Lords, in 1843, the case depending on the 
genuineness of entries written in an old prayer 
book, and dated 1728 and 1729, Lord Campbell 
said: ' There was a witness (Sir Frederick Madden) 
who undertook to say that it was the handwrit- 
ing of about the middle of the last century. 
I do not mean to throw any reflection on Sir 
Frederick Madden. I dare say he is a very re- 
spectable gentleman, and did not mean to give any 
evidence that was untrue; but really this confirms 
the opinion I have entertained, that hardly any 
weight is to be given to the evidence of what are 
called scientific witnesses; they come with a bias on 
their minds to support the cause in which they are 

1 Matter of Alfred Foster's Will, 34 Mich. 21, 26. 

> Turnbull v. Dods, 6 Dunlop, 901. 

> Qurney v. Langlands, 5 Bam. Aid. 330. 



ENTITLED TO LITTLE WEIGHT. 463 

embarked. ' '' In the opinion of the New York Court 
of Appeals recently delivered in the famous Kemmler 
case, Mr. Justice Gray has this to say of expert tes- 
timony: ''Expert evidence is only, it seems to me, 
entitled to much importance in arriving at a judg- 
ment, when fairly given by one properly accredited 
to give it, through his experience, study and scien- 
tific eminence, and upon a hypothesis which shall 
be true in the relation of its parts to the whole case 
which is the subject of inquiry. The frequent spec- 
tacle of scientific experts differing in their opinions 
upon a case, according to the side upon which re- 
tained, tends much to discredit such testimony, or to 
impair its force and usefulness, and inclines us to pre- 
fer the formation of an opinion upon the real facts, 
when the case is not one beyond the penetration and 
grasp of the ordinary mind. ' " 

In People v. Morrigan,* the Supreme Court of 
Michigan, through Judge Cooley, thus expressed 
themselves on the subject of expert testimony: 
''The experience of courts with the testimony of 
experts has not been such as to impress them with 
the conviction that the scope of such proofs should 
be extended. Such testimony is not desirable in 
any case where the jury can get along without it; 
and is only admitted from necessity, and then only 
when it is likely to be of some value." In a sub- 
sequent case the trial judge read to the jury the re- 
marks of the Supreme Court in Morrigan's case, and 
exception was taken to his so doing, and the case 
carried to the Supreme Court, which held that the 
trial judge had committed no error. In the second 

1 10 C. & F. 154, 191. 

« People V. Kemmler, 119 N. Y. 580, 583 (1890). 

'29 Mich. 8. 



464 EXPERT TESTIMONY. 

case the court say, Judge Cooley again giving the 
opinion : * 'Three exceptions were taken to portions of 
the charge to the jury. One of these was to the 
judge reading to the jury remarks of this court con- 
cerning the testimony of experts contained in the 
report of the case of People v. Morrigan, 29 
Mich. 8. The objection seems to have been that 
the judge read a certain paragraph calculated to de* 
predate the value of expert evidence, without giving 
the context, or a statement of the facts which called 
out the remarks read. But the judge had an un- 
doubted right to make the same remarks himself as 
a part of his charge, and it was immaterial whether 
they were original with him, or were taken at 
second-hand from some other judge or other au- 
thority or author./'^ 

Law writers have likewise expressed unfavor- 
able opinions of expert testimony. The leading 
authority in England on the law of evidence 
thus writes: 'Terhaps the testimony which least 
deserves credit with a jury is that of skilled 
witnesses. These gentlemen are usually required 
to speak, not to facts, but to opinions; and when 
this is the case it is often quite surprising to 
see with what facility, and to what an extent, 
their views can be made to correspond with the 
wishes or the interests of the parties who call them. 
They do not, indeed, wilfully misrepresent what they 
think; but their judgments become so warped by 
regarding the subject in one point of view that, 
even when conscientiously disposed, they are inca- 
pable of expressing a candid opinion. Being zealous 
partisans, their belief becomes synonymous with 

i People V. Niles, 44 Mich. 606, 609 (1880). 



ENTITLED TO LITTLE WEIGHT. 465 

Faith as defined by the Apostle, and it too often is 
but *the substance of things hoped for, the evidence 
of things not seen.' To adopt the language of Lord 
Campbell/ 'skilled witnesses come with such a bias 
on their minds to support the cause in which they 
are embarked that hardly any weight should be 
given to their evidence.' '" And in another part of 
his work the author again declares that such evi- 
dence is entitled to very little weight.' In still an- 
other part of his work he says: '*Still, as experts 
usually come with a bias on their minds to support 
the cause in which they are embarked, little weight 
will in general be attached to the evidence which 
they give, unless it be obviously based on sensible 
reasoning."* 

A writer in the Journal of Jurisprudence (Edin- 
burg), for August, 1881, discusses the value of 
expert testimony as to handwriting as follows : 

''Evidence as to handwriting is extremely falla- 
cious, and there are some forgers extremely good at 
their trade. In the case of Englemore v. Kingston, 
8 Vesey, 473, Lord Eldon, commenting on the un- 
certainty and un trustworthiness of testimony as to 
handwriting, said : *A singular circumstance ap- 
plicable to this point happened to me. A deed was 
tried at Westminster throwing a good deal of blot 
on the persons who obtained it. The solicitor, a 
very respectable man, said he felt satisfaction that 
there were respectable witnesses. One was the town 
clerk of Newcastle, and I was the other. I could 
undertake to a certainty that the signature was not 

1 Tracy Peerage Case, 10 01. & Fin. 191. 
« 1 Taylor on Evidence, § 68. 
8 Ibid. § 660. 
< lUa, § 1877. 

(30) 



466 Bxpswr tbstimoky, 

mine, having never attested a deed in my life. He 
looked back to my pleadings ; was sure it was my 
signattn-e ; and if I had been dead, would have 
sworn to it conscientiously/ Nay, further, the 
imitation of handwriting is sometimes so adroit as 
to deceivie, not only persons familiar with the hand- 
writing, but even the person whose name is forged. 
The factor on a large estate had a clerk possessed of 
a wonderful facility for imitating handwriting. The 
factor being an old and infirm man, used to tell the 
clerk to sign checks for him, which he did in such 
a manner that nobody could tell the difference 
between the real and the imitated signature. The 
clerk used also to amuse himself by imitating the 
signature of his master's son. The signatures were 
very difficult, one being in the shaky writing of an 
old and infirm man, the other in the firm hand of a 
strong, vigorous young nian ; but both were so per- 
fect that neither could distinguish the imitated sig- 
natures from their own. One very remarkable 
instance of a person being deceived by the forgery 
of his own signature happened in Scotland a few 
years ago. We can vouch for the truth of the story. 
The agent of a public company issued some forged 
bills, to which were appended the names of three of 
the directors. He decamped, but was caught in 
Paris. One of these directors, a man of position 
and capacity, a magistrate of a northern town, was 
certain that the names of the other directors were 
forged, but that his own signature was genuine, 
although he could not imagine when or how he had 
come to sign the bill. The director went to Paris, 
and in order to have the culprit removed to this 
country he (was) required to make a declaration be- 



ENTITLED TO LITTLE WEIGHT. 467 

fore a magistrate. He swore that the other two sig- 
natures were forgeries, but that his own signature 
— a very peculiar signature — was genuine. The 
culprit, who knew that the game was up, and had 
no objection to making a clean breast of it, was 
very much amused, and informed the excellent mag- 
istrate that he had made a mistake, and that the 
whole of the signatures were forgeries. 'But how did 
you manage to do it?' was the natural inquiry. The 
man took a pen and a piece of paper, and without 
a moment's hesitation, scribbled off a signature 
which the victim, if he had not seen the act done, 
would have said was his own. In Scotland the 
courts have for long placed very little reliance upon 
evidence as to handwriting, and hardly any at all 
upon the evidence of mere 'experts.' Perhaps it 
would be more correct to say that the judges have 
either refused to receive the evidence of experts, or 
have intimated that such evidence would produce 
no impression on their minds.'" 

In the Law Magazine and Review (London), for 
February, 1878, will be found the following estimate 
of expert evidence: "It cannot be denied that there 
is on the part of the bench a strong a priori distrust 
of expert evidence in general. It is no doubt in 
the abstract, the form of testimony least deserving 
of credit, because it speaks mainly to opinion and not 
to facts, and is almost necessarily inconclusive. On 
some subjects, of course, positive or direct testimony 
is often unattainable, and the cause of justice is 
then much indebted to a witness who can intelli- 
gently and with reason, testify to his belief or opin- 
ion, or draw inferences from similar facts within his 

1 25 Journal of Jnrispradence, 409, 413, 414. 



468 EXPERT TESTIMONY. 

own experience. But a judge may certainly find 
justification for his distrust in much that too often 
accompanies the appearance of experts in an action. 
They have done not a little of late towards weaken- 
ing their already limited value as witnesses. That 
absolute independence which we have seen should 
be the very foundation of their worth is generally 
wanting. If they are men of any eminence, the 
tendency at least of their opinions is already known 
to those who employ them. It is, indeed, often on 
such tendency that their eminence depends. Possi- 
bly, if they are eminent, and, probably, if they are 
UQt, their judgment is biased towards their employ- 
ers, ita prsscurrit amicitia jiidicium, tollit que experi- 
endi potestatem. Men readily believe what they 
anxiously desire, and such witnesses forget their 
real character, and seem to consider themselves 
paid agents. The result may be seen in the extra- 
ordinary consequences which arise from the careful 
choice by suitable .agents of their deliverers of opin- 
ions to order. It is not an unusual circumstance to 
find them in the continuous employ of some con- 
stantly litigant body, e. gr., a gas or water company. 
If otherwise, they are seldom called in until litiga- 
tion has been threatened or actually commenced, 
instead of appearing as assistants of the court in 
determining upon what is most for the public good. 
The wildest theories are enunciated ; science and 
health are insulted in the interests of costs and per- 
sonal notoriety; dust is purposely thrown in those 
eyes which ask for light, and the unavoidable inex- 
perience of the court is compelled to a decision, 
which those who really cause it know to be ^rong, 
or, at least, do not think to be right. On some 



MATTEBS OP MEDICAL SCIENCE. 469 

• 

special branches of inquiry the same two eminent 
experts, whose views are as well known as those of 
two rival village politicians, confront each other 
daily. And, lastly, although their evidence is given 
upon oath, the sanction of this need presents no 
terror to their minds. ♦ ♦ ♦ When the evidence 
is only as to a matter of opinion, the witness, of 
course, cannot be indicted for perjury, and it is clear 
that this will allow the assertion of anything which 
a skilled witness may think likely to advantage the 
cause of his employer, or add importance to his 
theories and himself. The serious mischief caused 
in this way, added to the frequent inability of the 
court to obtain any other kind of evidence, or to 
arrive at a conclusion which does not depend mainly 
on such testimony, naturally produces great dissatis- 
faction with any decision in an expert action."^ 

§ 203. Cases Holdinsr that Expert Testimony in 
Matters of Medical Science is of Great Value. — On 
the other hand many cases may be found in which 
courts have expressed the opinion that the testimony 
of experts in medical science is of great value, or 
entitled to great weight. These cases must now be 
noticed. 

In a case before the Supreme Court of New York 
in 1872, the court was called upon to say whether 
the following instruction should have been given : 
"Considering the extraordinary character of the 
injuries alleged in this case, and the great difficulty 
attendant upon their proper investigation, great 
weight should be given by the jury to the opinion 
of scientific witnesses, accustomed to investigate the 
causes and effects of injuries to the eye, and a dis- 

1 The interesting article from wbicb the above extract is made is written 
by Mr. G. Brooke Freeman, Law Mag. A Rev., Feb., 1S78. 



470 EXPERT TE8TIMONT. 

ti^ctio^ should be made in favor of the opinion of 
those accustomed to use the most perfect instru- 
ments and processes, and who are acquainted with 
the most recent discoveries of science and most 
improved methods of treatment and investigation." 

In this case the plaintiff had called a physician, 
who stated on cross-examination that in his exami- 
nation of the eyes he had not used the opthalmo- 
scope, or stereoscope, and did not make a specialty 
of diseases of the eye. While the defendant had 
called a physician who testified that he had made 
a specialty of such diseases, that he had used op- 
thalmoscope and stereoscope. The court decided 
that the trial coiui; committed an error in not giving 
the above requested instruction, saying: ''The prop- 
position there laid down was correct and should 
have been presented to the jury."* 

In a case before the Supreme Court of Mississippi 
in 1870, that court say: ''Prominent among the 
testimony necessarily made use of at this stage of 
investigation, is that of medical and scientific per- 
sohs, surgeons, physicians and chemists, by whom 
the body or its remains have been inspected and 
examined, either at the time of the discovery or 
shortly after. The testimony of these witnesses, as 
to the appearances observed on such examinations, 
is always of the greatest value, and their opinions 
as to the causes of such appearances are entitled to 
much consideration.'" 

In a case in the Supreme Coujrt of North CaroUna 
in 1879, that court sustained an instruction reading 
as follows: "The law likewise attaches peculiar 

1 Tlnney v. Kew Jersey Steam-boat Co., 12 Abbott's Pr. (N. S.) 1, 
s Pitts v. State, 43 Miss. 47^, 480. 



MATTEB6 OF M1BDIC4L «CIENG£L 471 

importance to the