those existing in the case on trial, there is no error in excluding It. Experiments, to be admissible, must be based on conditions similar to those existing in the case on trial, and, unless the conditions are affirmatively shown to be such, the result of experiments is not admissible in either civil or criminal cases: See the principal case; Foote v. Woodworth, 66 Vt. 216; Leonard v. Southern Pac. Co., 21 Or. 555; Kinney v. Folkert, 84 Mich. 616; Yates v. People, 38 Ill. 527; Lake Erie etc. R. R. Co. v. Mugg, 132 Ind. 168; Ramsey v. Rushville etc. Road Co., 81 Ind. 394; Tesney v. State, 77 Ala. 33; Hawkes v. Charlemont, 110 Mass. 110; Commonwealth v. Piper, 120 Mass. 185; Libby v. Scherman, 146 Ill. 540; 37 Am. St. Rep. 191; Miller v. State, 107 Ala. 40; Evans v. State (Ala.), February 6, 1896. The fact that an experiment or test was ex parte, and such as could be made only by one of the parties, goes not to its competency, but to its weight. Thus, in a suit against a railroad company for personal injuries resulting in death, caused by being struck by a train, it is competent for the defendant to prove, by one of its engineers, an ex parte test, made subsequently to the accident, for the purpose of showing that the train that caused the death could not have been stopped after the person killed could have been seen upon the track, when it appears that the test was made at the same place, and under conditions that were, so far as practicable, identical with those surrounding the accident. The fact that the test was made by the railroad company, and could be made only by it, simply affects the weight of the evidence, a matter of which the jury must determine: Byers v. Railroad, 94 Tenn. 345, 354; Mississippi etc. R. R. Co. v. Ayres, 16 Lea, 725. On the issue as to whether a railroad accident could have been avoided by stopping the train, after the party injured could have been seen by the engineer in charge, tests made with similar trains under similar circumstances are admissible in evidence even without notice to the injured party: Burg v. Chicago etc. Ry. Co., 90 Iowa, 106; 48 Am. St. Rep. 419; Byers v. Railroad, 94 Tenn. 345. So, the testimony of physicians, who attended a deceased person soon after he was shot, as to an experiment made by them to determine the relative positions of the deceased and the accused when the fatal shot was fired, is not reudered inadmissible by the fact that the experiment was made in the absence of, and without notice to, the accused. This objection goes to the weight of the evidence, not its admissibility: Moore v. State, 96 Tenn. 209.

Permitting experiments or tests before the jury, whether in or out of the courtroom, rests largely in the discretion of the court: United States v. Ball, 163 U. S. 662; Commonwealth v. Breisford, 161 Mass. 61; Heath v. State, 93 Ga. 446; State v. Lindoen, 87 Iowa, 702; United States v. Reid, 42 Fed. Rep. 134; People v. Levine, 85 Cal. 39; Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; National Cash Reg. Co. v. Blumenthal, 85 Mich. 464; Osborne v. Detroit, 32 Fed. Rep. 36; Hatfield v. St. Paul etc. R. R. Co., 33 Minn. 130; 53 Am. Rep. 14; Smith ▼. St. Paul etc. Ry. Co., 32 Minn. 1; 50 Am. Rep. 550.

The jury cannot, of course, make experiments for themselves, especially in a criminal case, as they must act, under their oaths, upon the evidence as it is produced before them by the respective

parties. If, upon a trial for murder, a pistol, which has not been properly identified as the one by means of which the deceased was killed, is sent out to the jury without the knowledge of the prisoner, his counsel, or the court, and the jury experiment with it for the purpose of judging whether, under the circumstances, the deceased could have shot himself with that weapon, and the trial results in a verdict of guilty, a new trial will be granted: Yates v. People, 38 Ill. 527. If the life of an individual is at stake upon an indictment for murder, the court cannot permit a verdict to stand which has been obtained, not by calm, deliberate examination of the proof, but by uncertain experiments, such as sending the constable out of the room and talking to him through the door, with a view of testing the transmission of sounds, and running to ascertain whether the tracks would be shorter than the shoes with which they were made. In speaking of the test as to voice, the court said: “A different intonation of voice, a difference in the structure of the rooms, would destroy its virtue as a test; and, besides, they had to take the word of the constable as to the fact whether they were heard": Jim v. State, 4 Humph. 288. So, in his argument to the jury on the trial of a felony, the defendant's counsel said in regard to a question of footprints that the jury might try for themselves whether such wornout boots as the witnesses for the prosecution described would make such tracks as they described. Some of the jury, without leave, made the experiment out of court, and this was held sufticient to justify a reversal of a judgment of conviction and to authorize a new trial: State v. Sanders, 68 Mo. 202; 30 Am. Rep. 782. But the misconduct of jurors may be waived, as, where some of them see a horse, alleged to have been injured, as they are passing into court, and stop to examine the animal. If this act is discussed when the jurors assemble, and the plaintiff's counsel, who takes part in the discussion, makes no demand to have the jury discharged, and a new panel called, and does not make any objection to proceeding with the trial, he thereby waives his right to take advantage of the conduct of the jurors: Whitcher v. Peacham, 52 Vt. 242. In criminal cases, a defendant cannot be compelled to give evidence against himself, as this would violate his constitutional right, but evidence of the result of experiments or tests may frequently be admitted without violating the constitutional guaranty. While evidence of marks or footprints has been held to be admissible in criminal cases: Hodge v. State, 97 Ala. 37; 38 Am. St. Rep. 145; evidence that a witness forcibly placed the defendant's foot in certain tracks near the scene of the burglary, and that they were of the same size, has been held to be inadmissible, as a defendant cannot be compelled to criminate himself, either by acts or words: Day v. State, 63 Ga. 667; Cooper v. State, 86 Ala. 610; 11 Am. St. Rep. 84. So, on an accusation of murder, it being claimed that certain footprints were those of the prisoner, the prosecuting attorney brought a pan of mud into court and placed it in front of the jury, and having proved that the mud in the pan was about as soft as that where the tracks were found, called on the prisoner to put his foot in the mud in the pan. On objection, the court instructed

the prisoner that it was optional with him whether he would comply. The prisoner refused, and the court instructed the jury that his refusal was not to be taken against him. The prisoner being convicted, the appellate court held that he was entitled to a new trial: Stokes v. States, 5 Baxt. 619; 30 Am. Rep. 72. But if a prisoner voluntarily assists in making a test, he cannot complain of evidence as to the result. For example, an officer, who had arrested a prisoner charged with larceny, directed him to put his foot in a track found near where the larceny was committed, which he did, and testified as to the result of the comparison. It was held that the evidence was not procured by duress and was admissible: State v. Graham, 74 N. C. 646; 21 Am. Rep. 493. And on the trial of an indictment for murder, it was held no error for the prosecution to be allowed to prove that the examining magistrate had directed the prisoner to make his footprints in an ash-heap; that he did so; and that they corresponded with footprints found at the scene of the crime: Walker v. State, 7 Tex. App. 245; 32 Am. Rep. 595. A party, who denies a signature before the court to be his own, may be required, on cross-examination, to write in the presence of the jury for the purpose of comparison: Bradford v. People, 22 Col. 157; but if the disputed writing is so faded out that it cannot be traced, and cannot be seen by the jury, but only described to them, it is not a case for such an order: Smith v. King, 62 Conn. 515. If the evidence in a prosecution for murder tends to show that the person who committed it wore a certain pair of rubber boots at the time, and the defendant testifies that he cannot get the boots upon his feet, and makes extraordinary efforts, apparently, to put them on in the presence of the jury, it is not error to allow a shoemaker to measure the defendant's feet and the boots and then testify that a foot of defendant's size could wear the boots; nor is it improper to call other witnesses to put the boots on in the presence of the jury, and allow the shoemaker, after measuring their feet, to testify that he finds them as large as defendant's: State v. Nordstrom, 7 Wash. 506.

Illustrative Civil Cases.-After a witness, competent as an expert, bas testified that, by experiments upon certain land, the drainage of remaining land by a filter basin on the land can be determined, he may be asked if the level has been determined by experiment, at which water stands under soil, generally, and may state the results of experiments made by him in his laboratory in proving that fact: Williams v. Taunton, 125 Mass. 34. So, if the thermometer by which an inspection of oil was made is introduced in evidence, it not error to also admit the certificate of the experts, who tested the thermometer before its use, which accompanied it, and which directed the variations to be made from the face reading to secure accuracy: Hatcher v. Dunn (Iowa), April 10, 1896.

In an action for injury to the plaintiff's house and fence, where the question in controversy, and upon which both parties introduce the testimony of experts, is whether the injury was caused by fumes and gases from the defendant's copperas works, or by emanations from a sewer near the premises, the defendant has no ground of exception where the plaintiff's experts are allowed to give the

grounds and reasons of their opinions, including the details of experiments made by them elsewhere than on the premises in question, under conditions and circumstances which, as they testify, are as nearly as possible like those surrounding the plaintiff's house, in the absence of the sewer: Eidt v. Cutter, 127 Mass. 522. So, in an action against a railroad company to recover damages for personal injuries received in a railway accident, after the defendant's station agent where the accident occurred has testified that he held such position before the accident, and afterward, up to the time of trial, and did not know of any change in the switch in question having been made, it is competent for one of the plaintiff's attorneys, where the shoe worn by the injured party is before the jury at the time, to testify as to the result of his measurements of the distances between the rails at the switch, fourteen months after the accident, and of experiments made by him in placing his foot between the rails, and showing where the foot could be caught and where not: Brooke v. Chicago etc. Ry. Co., 81 Iowa, 504.

The jury may be shown by experiment the principle upon which a thing works. Thus, where a person was injured while emptying a defective coal bucket in unloading coal from the hold of a steamer at a dock, the court does not err in permitting an experiment, in the presence of the jury, with a correct model of the bucket, for the purpose of showing how the bucket operated when in use, and to illustrate how the accident could have happened, when no prejudice can result therefrom: Pennsylvania Coal Co. v. Kelly, 156 Ill. 9. So, in a suit to recover the price of a cash register, where the vendee claims the right to rescind his order for its shipment because it fails to register correctly, the court does not err in allowing the machine to be received in evidence, and in permitting a witness, who took the order, to operate the register before the jury, to explain the principle upon which it works, and to show the manner in which it registers the cash received, where the machine is identified, and there is testimony in the case tending to show that the register is in the same condition that it was in when returned by the defendant: National Cash Register Co. v. Blumenthal, 85 Mich. 464. An expert witness who testifies that certain writings, made with the same ink, are apparently different in color, should be permitted to illustrate his testimony before the jury by showing the effect of using a blotting pad, which, in the opinion of the expert, causes the apparent difference in color: Farmers' etc. Bank v. Young, 36 Iowa, 44. If, in a particular case, the things used for the purpose of the demonstration are similar in size, material, and position, and are operated under conditions similar to the thing sought to be demonstrated, experiments are admissible. This is well illustrated in Leonard v. Southern Pac. Co., 21 Or. 555, a railroad accident case. The defendant claimed that the accident was due to the displacement of a rail wrongfully loosened from the track, and thrown diagonally across the track by some evil-disposed person; and, in support of that contention, introduced the rail in court, which showed upon the outside of its bottom flange a scar which defendant claimed appeared to have been made by collision of the pony-truck wheel in front of the engine coming in con

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