Page:The Green Bag (1889–1914), Volume 05.pdf/210

 Practical Tesis in Evidence. PRACTICAL TESTS IN EVIDENCE. VI.

BY IRVINU BROWNE. EXPERIMENTS. — Continued. IN People v. Hope, 61 Cal. 291, a case of burglary, a witness for the people was permitted to experiment before the jury with a small steel bar which he had made for the purpose of screwing on it certain couplings or sockets, one of which was found in a hole over the bank-vault in question, and the other in the defendant's trunk. On the trial of the Davis will case, in Mon tana, in 1891, in answer to the claim of the contestants that the will was written in Nigrossin ink (which was not known of until many years subsequent to the date of the will), it was shown by tests in court that it was written in logwood ink, which has been in use for forty years. In a case in 1886, before " Tom " Hughes, who was a county judge, the question was who had won a foot-race; and being in doubt, be ordered it to be run over again in his pre sence. The " Law Journal " comments on this as follows : — "The course taken by Judge Hughes in the case of the walking case recently before him shows how difficult it is even for the judge to subdue the in stincts of the natural man. As an old hunter put to hack work pricks up his ears, and perhaps jumps over the hedge at the sound of the voice of a pack of hounds; so the author of 'Tom Brown,' at the mention of a foot-race, throws off his wig, and is ready to hurry to the ash-path. When the evidence on the question who won the race is not clear, to order t to be run over again is the newest form of new trial. It is not an effective form, because the man who wins the race to-day is not necessarily the man who would have won it three months ago; anil we fear it is not contemplated by the practice of any court of law, whether county court or other. For the judge ot law to turn himself into the judge of the course, besides being a little undignified. 24

might lead to an action being brought against him self in his own court. These methods are less suitable for this prosaic time than for the mythical days of Sancho Panza or Haroun Alraschid."

It is probable that "Tom " is fond of a joke as well as a race. On the trial, at Hamilton, Ont., of an ac tion of damages for an injury sustained by the falling of a derrick, the plaintiff, Alfred Green, testified that since the accident when ever he shut his eyes he became dizzy and fell down. The defence claiming that Green was shamming, Mr. Carscallen, with the judge's consent, decided to test the man in the presence of the jury. Green had sworn that when he shut his eyes, usually in thirty seconds or less he would become so dizzy that he would fall to the ground. Mr. Cars callen drew a stop watch, and proceeded to try the experiment. The judge directed Green to step back three paces, then walk forward three paces, stop, and then close his eyes. Green, as he came deliberately for ward, stopped and shut his eyes. In a mo ment he changed color, reeled back, and clutching the rail of the witness-stand, swung round and fell in a heap on the steps at Judge McMahon's feet. A daily paper said : "The scene was too real to doubt the genuine char acter of the man's affliction." Mr. E. A. Angelí, of Cleveland, Ohio, writes us : — "In the case of Peoria Target Company v. Cleveland Target Company, for alleged infringe ment of a patent granted to Fred Kimble, for a target composed of pitch and plaster-of-paris, in the proportion of one hundred parts of pitch to seventy-five of plaster-of-paris, heard before Judge Ricks, U. S. Circuit Judge for the Northern Dis trict of Ohio, at Cleveland, in November of 1889, the court allowed us, representing the defendant.