tract with the flange of the rail as it lay diagonally across the track. The plaintiff, in rebuttal, produced in court a wheel made to run on rails, and an iron rail, and requested the witness to show to the jury the manner in which the wheel would come in contact with the rail, under the circumstances claimed by the defendant. The section of rail introduced by the plaintiff was the same in size, dimension, measurement, and weight as the rail introduced by the defendant, and the court personally measured the wheel, and ordered that the record be made to show that it was a wheel with flange and trend made to run on rails like a locomotive engine wheel, and that it was twenty-six inches in diameter, including the flange. The only difference between the wheels was that the pony-truck wheel was thirty-three inches in diameter, including the flange, but both were used for similar purposes and rolled upon similar tracks. The bill of exceptions showed that the witness, McCoy, placed the section of rail across defendant's rail as claimed by its theory the rail was placed by the alleged evildisposed person, and then rolled the flanged wheel toward and against it on the defendant's rail, and claimed to demonstrate, in the presence of the jury, that a wheel thus approaching a crossed rail could only strike it on the ball or upper part, and not on the flange or bottom part, where the scar appeared. He also testified that the larger the diameter of the approaching wheel the further it would be from striking the flange of the cross-rail, and that there were no marks or scars on the ball of defendant's rail. "It seems to us, as counsel contend," said the court, "that a flanged wheel, standing perpendicular with the rail upon which it is placed and rolled forward, will strike another rail crossing this one upon which it is rolling in precisely the same manner that it would were it attached to the end of an axle. Under the circumstances, we are not prepared to say that there was any error.” Evidence of experiments is not admissible where the conditions are not the same. Thus, in an action for damages on account of the condition of certain jars due, as alleged, to their improper burning in the process of manufacture, but where the defendant joins issue by contending that the ruinous condition of the jars is due to their having been put up and stored by the plaintiff for three or four years in a dirty and greasy condition, a piece of white paper which one of plaintiff's witnesses had rubbed around on the inside of some of the jars, in examining them, for the purpose of finding out whether they were greasy or not, is not admissible, until it is shown that the jars to which it was applied were then in substantially the same condition in regard to being dirty and greasy as they were when packed: Foote v. Woodworth, 66 Vt. 216. So, in an action to recover damages for removing stones from a river as a result of which the river washed the plaintiff's land away, evidence that the removal of stores at another place on the river produced the same effect which it was alleged that it produced at the place in question, is inadmissible, if it is not shown that all the conditions of the events were the same. It is not enough for witnesses to testify that the two places are similar in situation: Hawks v. Charlemont, 110 Mass, 110. And, in a case of negligence, the re

fusal of the court to permit the defendants to run, in the presence of the jury, a "blower," used in a planing mill where the accident occurred, and which "blower" has been examined by the jury, is not an abuse of discretion, where it appears that the machine has been altered since the plaintiff was injured by putting his arm into it when in operation: Kinney v. Folkerts, 84 Mich. 616. So, in an action for damages for death caused to a railroad yard switchman by a wrongful act, in leaving a strong and sharp piece of rail, called a "sliver," upon a rail on a sidetrack of the yard, after evidence of statements made by the deceased that, at the time of the injury, his boot froze to the rail, and that he was unable to pull it away, the court may properly refuse to permit a witness to testify that, after the statements were made by the deceased, in his hearing, he experimented and found that the weather had the same effect on his boot, it not being shown that the experiment was made under the same conditions that existed when the injury took place: Lake Erie etc. R. R. Co. v. Mugg, 132 Ind. 168. On an issue as to whether a check has been raised in amount, it is error to admit in evidence a check which bears evident signs of having been altered as a result of experiments which have been made thereon for the purpose of showing that an alteration could not be made without detection. "An unsuccessful effort by one person to forge a name or raise a check is not competent evidence that another person did not succeed": Birmingham Nat. Bank v. Bradley (Ala.), November 28, 1895. Experiments outside of the issues in the case should not be admitted: Ramsey v. Rushville etc. Road Co., 81 Ind. 394; Libby v. Scherman, 146 Ill. 540; 37 Am. St. Rep. 191. A suit was instituted to restrain proceedings at law to recover for work and labor in constructing a sewer, on the ground of fraud on the part of the defendant in equity in improperly obtaining possession of an estimate in writing, and by chemical process removing the figures indicating the price. The document in question having been deposited with the clerk of records, in pursuance of an order for production, the plaintiff moved for liberty to subject it to chemical tests, for the purpose of the trial at law; but, upon an undertaking by the defendant to produce it to be stamped at the trial at law, the court refused to make any order: Twentyman v. Barnes, 2 De Gex & S. 225.

Illustrative Criminal Cases. -On the issue as to whether words alleged to have been spoken by the defendant could have been heard by the witness who testifies thereto, evidence of an experiment made under similar circumstances is admissible: Wilson v. State (Tex. Crim. App.), June 27, 1896. On the trial of an indictment for malicious shooting, after the state has examined several witnesses, who were not present at the shooting to prove experiments and observations subsequently made by them, at the same place, for the purpose of proving by inference from such experiments and observations, that the prosecuting witness might, or could, have seen and known the defendant under the circumstances and as related by him, it is competent for the defense to prove similar experiments, with different results, made in another place. but under like circumstances: Smith v. State, 2 Ohio St. 511. On a

prosecution for maliciously exposing poison, which caused the death of a horse, evidence as to what the owner of the horse and prosecuting witness did when the horse died is admissible. He may testify that he cut the horse open, took out the contents of his stomach, and administered some of such contents to a heu, and that the hen died in ten or twelve minutes from the effects thereof: State v. Isaacson (S. Dak.), December 16, 1895. On a trial for burglary, a witness may testify that he measured the foot-tracks found at the place where the burglary was committed; that he also examined the shoe that defendant had on just after the burglary; and that upon placing the shoe in the track, he found that it fitted exactly: McLain v. State, 30 Tex. App. 482; 28 Am. St. Rep. 934. Experts may testify as to the results of experiments, based upon facts established by the evidence, whether made before or during the trial: Boyd v. State, 14 Lea, 161. The testimony of a physician called as an expert to show the effect of powder marks, where a pistol is fired at short range, and the cloth or muslin used in his experiments are admissible in evidence on the trial of a prisoner for murder by means of a pistol: Sullivan v. Commonwealth, 93 Pa. St. 284. Upon the trial of a complaint for keeping and maintaining a liquor nuisance, a certificate by the state assayer of the result of his analysis of certain beer is admissible in evidence for the purpose of identifying the beer so analyzed as that taken from the defendant's premises. The fact that samples of liquor were taken illegally from the defendant's premises by police officers does not render evidence that they were found by analysis to contain more than one per cent of alcohol incompetent at such trial: Commonwealth v. Brelsford, 161 Mass. 61.

If the conditions are dissimilar the same rule applies as in civil cases, namely, that evidence of experiments is not admissible. In Tesney v. State, 77 Ala. 33, upon an indictment for murder, it is held that, for the purpose of showing the distance between the parties when the deceased fired a pistol at the defendant, as indicated by the marks of powder on the clothes, or the want of such marks, it is not permissible to exhibit to the jury a coat similar to that worn by the defendant at the time, and show the effect of a single experiment in firing at it, as the results of such experiments are "as variant as the manner of loading the pistols." But, it is a matter of common knowledge that the muzzle of a pistol must be very close to clothing, when fired, to scorch it, and there can be no possible injury done to the defendant by allowing one who has, since the killing, made experiments to ascertain at what distance the powder from a pistol will scorch clothing, to testify to a fact which is already known to the jury: Miller v. State, 107 Ala. 40. In a prosecution for murder, an expert witness cannot testify that, as an experiment, he fired a bullet through a plank, to ascertain the size of the hole made as compared with the bullet: Evans V. State (Ala.), February 6, 1896. On the trial of an indictment for murder, a witness testified that he had made certain experiments upon a dynamometer, an instrument to measure 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, as

the government contended, the murder was committed. It was held that the court, in its discretion, might properly reject such evidence, as tending to mislead the jury, unless the experiments were shown to have been made under conditions the same as those existing in the case on trial: Commonwealth v. Piper, 120 Mass. 185. Evidence that bloodhounds of the same breed, and trained by the same man, as those used to track the defendant in a criminal case, after being put upon the track of a human being, left the trail to track a sheep which they overhauled and killed, is inadmissible, as the test by comparison is not sufficiently certain to determine the reliability of the dogs employed in the criminal case by reference to the qualities of the other dogs: Simpson v. State (Ala.), June 18, 1896.

Cases Illustrative of Court's Discretion.-An application to allow the Jury to witness experiments with cars upon a railway track outside of the courtroom, for the purpose of showing the nature of an alleged collision, is addressed to the discretion of the court, and no error is committed in refusing it, when the case is not one within the provisions of the statute allowing a view by the jury: Smith v. St. Paul etc. Ry. Co., 32 Minn. 1; 50 Am. Rep. 550. The presiding judge is not obliged to allow the power of vision of a witness under cross-examination to be tested by requiring him to go to the window and look at an object on the street, which object is not visible to the judge and jury from their positions in the courtroom: Heath v. State, 93 Ga. 446. So, in a case where the plaintiff claims to have been paralyzed by a fall on a sidewalk, it is not error for the court to permit her medical attendant, though he has not been sworn, to demonstrate the plaintiff's loss of feeling, by sticking a pin into that side of him which he claims is paralyzed: Osborne v. Detroit, 32 Fed. Rep. 36. And on the trial of an action for personal injuries, the uncontradicted proof showing that since receiving them the plaintiff walked lame, the court commits no error in refusing to compel him to walk across the courtroom in presence of the jury: Hatfield v. St. Paul etc. R. R. Co., 33 Minn. 130; 53 Am. Rep. 14. An expert witness may be permitted to make illustrations, before the jury, upon a blackboard for the purpose of explaining his testimony and rendering it more intelligible: McKay v. Lasher, 121 N. Y. 477.

So, in criminal cases. At the trial of a complaint for keeping and maintaining a liquor nuisance, the defendant has no ground of exception to the refusal of the trial judge to permit samples of beer, taken from the defendant's premises, to be tasted by the jury, for the purpose of determining whether it is or is not intoxicating: Commonwealth v. Brelsford, 161 Mass. 61. The court may properly refuse to permit an experiment where there is nothing in it to enlighten the jury. Thus, if a defendant is accused of the crime of keeping for sale and selling intoxicating liquors in violation of law, and one of his witnesses has testified to the ingredients coutained in the liquor, and explained the process of its manufacture, it is not error for the court to permit him to put the ingredients together, for the purpose of showing the "composition" of the liquor in question: State v. Lindoen, 87 Iowa, 702. The admission of evi

dence of an experiment to support the theory of the prosecution respecting the guilt of the defendant, if applicable to the facts in proof, is entirely in the discretion of the court; and, as proof of the result of experiments is equally as open to the defendant as the prosecution, the court is not bound to suspend a trial to try an experiment over again, in the presence of the jury, as the defendant, if he desires, may show any different result by proof of other experiments: People v. Levine, 85 Cal. 39. If a party, having contrived a scheme to defraud the public, employs the mails of the United States in the prosecution of that scheme, and he is indicted for thus soliciting money, upon the representation that he is able, by an unknown power, to answer sealed letters addressed to spirit friends, he will not be permitted to give a test or exhibition of his unknown power in open court: United States v. Ried, 42 Fed. Rep. 134. So, upon a trial for murder by shooting, in different parts of the body, with buckshot, it is within the discretion of the court, after the introduction of conflicting evidence upon the question as to whether a gun found in the defendant's possession would scatter buckshot to either grant or refuse a request to permit the gun to be taken out and shot off, in the presence of a deputy marshal, to test how it threw shot, and the court commits no error in declining to allow it: United States v. Ball, 163 U. S. 662, 673.

GRAND RAPIDS & INDIANA RAILROAD CO. v. DIETHER.

[10 INDIANA APPEALS, 206.]

CARRIERS-FREIGHT-WHEN EARNED.-A common carrier receiving goods for carriage without requiring prepayment of freight charges is not entitled to demand such charges until its duty of carriage has been performed, either by delivery or an offer to deliver at the place of destination.

CARRIERS-CONNECTING FREIGHT CHARGES, WHEN EARNED.—If a carrier receives goods to be delivered to a connecting carrier without demanding prepayment of freight charges, it cannot demand payment of such charges until it has carried the goods to the end of its line and is ready to deliver them to the succeeding carrier, or can show a good excuse for its not being done.

CARRIERS - TERMINATION OF LIABILITY-REFUSAL OF CONNECTING CARRIER TO RECEIVE GOODS-NOTICE.-The refusal of a connecting carrier to receive goods and assume the freight charges accrued, without notice thereof to the shipper or consignee, does not relieve the original carrier from any further attempt to deliver, or the performance of other duties on its part, nor terminate its liability as a carrier.

CARRIERS-WHEN BECOME WAREHOUSEMEN.-Until a carrier's liability as carrier is terminated by its performance of all duties as such, its rights as a warehouseman cannot begin.

NEW TRIAL-WANT OF EVIDENCE.-The insufficiency of evidence to sustain answers to interrogatories which could in no event control the general verdict, is not ground for a new trial for want of evidence.

TENDER.-MONEY PAID INTO COURT on a tender need not be the identical money with which the original tender was made,

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