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 Practical Tests in Evidence.

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PRACTICAL TESTS IN EVIDENCE. V.

DIAGRAMS AND MODELS.

So in City of Philadelphia #. Rule, 93 Penn. St. 15, a proceeding to recover pay for pav ing, the defence being that the paving was bad, the plaintiff offered samples of the stone from the quarry; but this was rejected by the trial court, which held that he must produce samples of the very stone put down in the street. The appellate court pronounced this error, saying he was not bound to tear up his finished work to furnish samples to the jury. In Morton v. Fairbanks, 11 Pick. 368, an action for fraud in making shingles, a parcel of the shingles was allowed to be shown. In King v. Railroad Co., 72 N. Y. 607, an action for injury by the breaking of a hook, part of the broken hook was held to have been properly exhibited to the jury, to point evidence of experts. Folger, J., said: " The eyes of the jury were as good to see ... as the eyes of a witness, and the testimony of their eyes would be as satisfactory to them as that given by a witness. . . . Common obser vation is allowed in these matters of common occurrence to give and have its judgment, etc." MERCHANDISE AND MATERIALS. On the other hand, in Hood v. Bloch, 29 W. In some modern cases specimens or sam Va. 244, such a practical test was refused. ples of merchandise or materials in dispute The action was in regard to the quality of have been admitted in evidence. Thus in cheese sold. The court said : " I do not People v. Buddensieck, 103 N. Y. 487; s. c. think, however, the court erred in refusing to 57 Am. Rep. 766, an indictment for man permit the defendants to produce one of the slaughter by negligence in using bad mate cheese to the jury on the trial. No matter rials in a building, specimens of brick and how bad the cheese may have been in Feb mortar taken from the ruins, and of brick and ruary, when it was delivered, it would cer mortar properly made, were held to be com tainly have been much worse three months petent in evidence. In Evarts 1 Middlebury, thereafter, when the case was tried. Then, 53 Vt. 626, on the question whether a horse if the defendants were allowed to produce was properly shod for winter travel, his shoes one of the worst cheese, as they no doubt were allowed to be exhibited. would have done, the plaintiff would have the 17

MODELS are universally admitted in patent cases and many other cases on mechanical questions, and it seems are preferable to the introduction of ponderous machinery or other articles. In Earl v. Lefler, 46 Hun, 9, an action for breach of warranty of a horse, an impression of his mouth in wax or plaster was held competent. On a question of surveying, a witness may illustrate his testimony by a diagram made by another. Peters, C. J., said : " Even sav ages resort to it, in lieu of words, in describ ing the course of rivers and the lines of seashores." Shook v. Pate, 50 Ala. 91. A diagram of the locality of a homicide is ad missible (Moon v. State, 68 Ga. 687); and the Court did not " see any objection to the diagram ' because part of it was drawn in red ink, as suggestive of the bloody deed, and as calculated to inflame the minds of the jury.' The scene and circumstances attending this terrible tragedy in the simple recital of the eyewitnesses is presented in colors of deeper stain than the mere sketches of red lines or other figures upon the diagram exhibited."