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designation as to their use, as gratuities, they would have been perfected, irrevocable gifts upon delivery. In a general sense they were gifts, but in a strict legal sense they were not gifts, though called so by the court, for the reason that they were made in expectation and under an arrangement that they were for specific purposes. The law is well settled that where money is delivered by one person to another for a particular purpose, to which the latter refuses to apply it, the depositor may recover it back in an action for money had and received. 2 Greenl. Ev. § 119; De Bernales v. Fuller, 14 East, 590, note.

In a valuable note to Hasser v. Wallis, 1 Salk. 28, it is said: "If one man takes another's money to do a thing, and refuses to do it, it is a fraud, and it is at the election of the party injured either to affirm the agreement by bringing an action for the non-performance of it, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use."

In Berry v. Berry, 31 Iowa, 415, a father gave to his son certain personal property upon the condition that he should keep sober and attend to his business. It was held that to entitle the donee to claim that the gift was irrevocable and invested him with a right to the property it must be shown that he had complied with the conditions on which the gift was made. And in Stewart v. Phy, 11 Oreg, 335, 3 Pac. Rep. 443, it was held that assumpsit for money had and received would lie to recover money paid by a debtor to his creditor to be applied in satisfaction of a particular obligation, when it was not so applied, and the obligation was otherwise discharged.

Several English cases cited by the plaintiff's counsel go beyond the rule above indicated, and hold that marriage gifts or their value are generally recoverable of the donee after breach of the engagement by her. See Forbl. Eq. bk. 1, c. 6, § 15; Young v. Burrell, Cary, 77; Robinson v. Cumming, 2 Ark. 409.

PHOTOGRAPHS AS INSTRUMENTS OF EVIDENCE.

The uses of the photographic art have become as varied, almost, as the wants of man. In the business world, in science and in art, its usefulness is recognized and enjoyed. By its wonderful power the astronomer records the aspect of the moon, and the eclipses of the sun, and secures representations of the planets and the configurations of the stars. It records the temperature and pressure of the air, the variations of terrestrial magnetism and the motions of the atmosphere. It portrays the arrangement of the clouds and enables us to study the structure of the cyclone. It fixes the enormously magnified images of the microscope and furnishes memoranda for the artist. To it the explorer commits the interesting sights of his travels to be reproduced, by another adaptation of the art, as illustrations of the printed record of his travels.

There is, however, another use of this art, one equally important with any that have been mentioned and that is its use in the administration of justice. The value of photographs to the executive officers of the law in the pursuit and detection of criminals has long been known. Their value as evidence in the court room is equally important and well-established. In less than twenty years after Daguerre first made public the important results of his experiments, the art of photography had been so far developed that the Supreme Court of the United States acknowledged its usefulness as an aid to judicial research and the fidelity with which it depicted the objects exposed to its power.1 Since then the use of photographs as means of evidence has become quite general, and has received the approval of courts of this country and of England.

Photographs are either secondary or demonstrative evidence, according to the method of their nse. As secondary evidence they are subject to all the rules applicable to such evidence. They can only be used in the absence of the originals and the inability to produce the original must be shown in the customary manner to the satisfaction of the court, before the photographic copy can be used.2

As demonstrative evidence, photographs are competent whenever it is important that the locus in quo, or any object, person or thing be described to the jury. They are, as such evidence, admissible as aids in the investigation, as much as a map or other diagram, and serve in like manner to explain or illustrate and apply the testimony. They are useful to enable courts and juries to comprehend readily the question in dispute as affected by evidence. As the value of the photograph, as evidence depends upon its accuracy, it must be shown by extrinsic evidence to be a faithful representation of the subject." 1 Luco v. U. S., 23 How. 515 (1859).

2 Duffin v. People, 107 Ill. 113 (1883); Maclearn v. Scripps, 52 Mich. 245 (1883).

3 Barker v. Town of Perry, 67 Ia. 146 (1885); Cowley v. People, 83 N. Y. 478 (1881); In re Foster's Will, 24 Mich. 21 (1876).

4 Archer v. N. Y. etc. R. Co., 106 N. Y. 589 (1887); Cowley v. People. Id; K. Cy., M. & B. R. R. Co. v. Smith, 8 South. Rep. 43 (Ala. 1890).

5 Verran v. Baird, 23 N. E. 630 (Mass. 1890); Marcy v. Barnes, 16 Gray, 163 (1860); Archer v. N. Y. etc. R. Co., Id.

6 Blair v. Pelham, 118 Mass. 420 (1879); Locke v. R.

Whether it is sufficiently verified and whether material to the issue, are preliminary questions to be decided by the judge presiding at the trial and not open to objection or revision. The photograph may be shown to be correct by the testimony of the photographer who took it, or by the testimony of any person acquainted with the subject represented.9

It has been held that the preliminary investigation should include the refractive power of the lens, the angle at which the original to be copied was held to the sensitive plate, the accuracy of the focussing, the skill of the operator, and the method of precedure,10 but such strictness of proof is rarely necessary or required. In accident or damage cases, the picture should be taken while the scene of the accident or premises damaged are in the same condition as when the accident or damage occurred, but any difference that arises from the view being taken at a different season of the year can be explained." Objections to the competency of a witness to testify to the correctness of the photograph must be made in the trial court and cannot be raised for the first time in the upper court.12

The weight to be given a photograph as evidence is a question to be determined by the jury." 13 It has been held proper to permit the jury to take the photograph to the jury-room with them and to study the picture with a magnifying glass. 15

The extent of the use of photographs and the manner and purpose of their employment is best shown by the reported cases, to a synopsis of which the remainder of this article is devoted. Photographic views of the scene

R. Co., 46 Ia. 109 (1877); Reddin v. Gates, 52 Ia. 210 (1879); Alberti v. N. Y. etc. R. Co., 118 N. Y. 77 (1889); Schaible v. Wash. L. I. Co., 9 Phila. 136 (1873); Cowley v. People, Id.

7 Blair v. Pelham, 118 Mass. 420.

8 Blair v. Pelham, Id.; Reddin v. Gates, Id.; Cowley v. People, 83 N. Y. 476; K. Cy., M. & B. R. R. Co. v. Smith, Id.

9 Schaible v. Wash. L. I. Co., Id.; Locke v. R. R. Co., Id.; Howard v. Russell, 12 S. W. 525 (Tex. 1889); Church v. Milwaukee, 31 Wis. 512 (1872); Leathers v. Salvers Co., 2 Woods, 682 (1875).

10 Taylor Will Case, 10 Abb. Pr. N. S. (N. Y. 1871). 11 Dyson v. N. Y. & N. E. R. Co., 57 Conn. 9 (1889). 12 Locke v. R. R. Co., 46 Ia. 109.

13 Ruloff v. People, 45 N. Y. 213 (1871); Ayers v. Harris, 13 S. W. 768 (Tex. 1890); Reddin v. Gates, Id. 14 Barker v. Town of Perry, 67 Ia. 146.

15 Barker v. Town of Perry, Id.

of an accident are admissible in evidence as a correct representation of the place. 16 In a suit of a widow of a railroad engineer against the company to recover damages for the death of her husband in a wreck caused by a broken bridge, the plaintiff was permitted to introduce a photograph of the wreck, broken bridge and stream where the accident occurred. It was competent testimony "for the reason that the jury, if it was possible for them so to do, would have been permitted to have viewed and inspected the same for the purpose of more readily understanding and properly applying the other evidence, and that in such case there could be no more satisfactory evidence than a correct photograph."'17

Where the plaintiff was injured at a depot by being struck by a passing train, it was held proper to admit a photograph of the place of the accident, the court saying: "If a fair representation of the premises it was admissible as an aid in the investigation, as much as a map or other diagram, and served in like manner to explain or illustrate and apply the testimony. Such drawings are uniformly received and are useful, if not indispensable to enable courts and juries to comprehend readily the question in dispute as affected by the evidence.18 Photographs of a railroad crossing at which an accident occurred are admissible.19

In actions against municipal corporations for injuries received upon defective sidewalks or streets photographs of the defective walk or street are proper evidence. 20 "They are used to identify the objects to which evidence relates, and being an exact reproduction of the object or thing represented, they are much more satisfactory evidence of the appearance of the thing represented than can be conveyed to the mind by any description given by a witness."'21

Photographs of premises showing the condition in which they are left by a change of street grade, are useful and proper aids to enable the jury in a suit for damages for the change, to understand and apply the evi

16 Dyson v. N. Y. & N. E. R. Co., 57 Conn. 9; K. Cy., M. & B. R. R. Co. v. Smith, Id.

17 Locke v. R. R. Co., 46 Ia. 109.

18 Archer v. N. Y. R. Co., 106 N. Y. 589.

19 Dyson v. N. Y. & N. E. R. Co., 57 Conn. 9.

20 Blair v. Pelham, 118 Mass. 420.

21 Barker v. Town of Perry, 67 Ia. 146.

dence.22 Stereoscopic views of premises of premises injured by water, taken the day of the injury, are competent evidence to show the condition of the property after the injury, for the purpose of establishing the amount of damage done thereto.23 Photographs of dangerous premises are competent. Testimony of localities can generally be better understood by views and observation than by word of mouth, and changes can just as well be explained in the one case as in the other.24

V.

In actions for damages to real estate by trespass, photographs of the premises taken at the time they were in the condition in which they were put by defendant, are admissible.25 The fact that the photograph does not show every part of the ground does not require its exclusion.26 The case of Hollenbeck Rowley, 8 Allen, 473 (1864), is sometimes cited as opposed to the doctrine of the last cases cited, but there is in reality no conflict. The latter case was an action for damages for trespass to land within the limits of a highway by putting rocks and rubbish thereon. The defendant offered a photographic view of the premises in controversy without the testimony of the photographer who took it, but he offered to prove its correctness by persons well acquainted with the premises. The photograph was offered to be used as a "chalk representation" of the premises. The plaintiff objected, especially on the ground that it exhibited but part of the premises, and it was excluded. The supreme court said: "The rejection of the photographic view of the premises is not a ground for exception. It was not verified by the oath of the photographer, and was only offered as a "chalk representation" of the premises, as such, it was in the discretion of the presiding judge, in view of its imperfections, or want of fullness of description, as well as its immateriality in reference to the understanding of the case on trial, to admit or reject it." This decision leaves the matter entirely in the discretion of the trial judge. In this connection it may be noted as a curious fact that in all cases de

22 Church v. Milwaukee, 31 Wis. (1872).

23 The German Theo. School v. Dubuque, 64 Ia. 736 (1883).

24 Bedell v. Berkey, 43 N. W. 308 (Mich. 1889). 25 Cozzens v. Higgins, 1 Abb. Ct. App. Dec. 451 (N. Y. 1866).

26 Chestnut Hill Co. v. Piper etc. Co., 15 Weekly Notes, 55.

cided by courts of last resort on this subject the decisions have sustained the ruling of the trial judge.

In a later case decided by the Supreme Court of Massachusetts, where the action was for damages caused to real estate by the breaking of a dam, a photograph of a gorge about half-way between the dam and plaintiff's property, was offered to show the force and effect of the water escaping from the dam, but was rejected by the trial judge. His ruling was sustained because no proof had been offered to show how much of the gorge represented was caused by the flood, and how much was there before nor of other facts necessary to make the gorge a measure of the volume and force of the water which escaped from the dam. "The photograph was not necessarily instructive, and if not practically instructive not competent." Here the chief ground of rejection seems to have been the failure of preliminary proof.27

Where plaintiff was injured upon a street car, a photograph of another street car is not competent evidence, even though it can be shown that the two cars are exactly alike.28 In an action for personal injuries, it is competent to introduce a photograph showing the manner in which plaintiff's limbs had been contracted.29 And in an action for an assault and battery the plaintiff may introduce a photograph taken shortly after the battery and showing the extent of his injuries.20 The photographer's art is of great value in cases of disputed signatures or where the genuineness of documents or the identification of handwriting is at issue.

Photographic copies, either enlarged or of the natural size, of the disputed signature and of those admitted to be genuine, may be of great assistance to a jury in comparing and examining the different specimens of one handwriting. Characteristics of it may be brought out and made clear by the aid of a photograph or magnifying glass, which would not be discernible by the naked eye.3 But photographic copies of a signature are not admissible to aid an expert as a basis of opinion as to the genuineness of the original

27 Verran v. Baird, 23 N. E. 630.

25 R. R. Co. v. Green, 56 Md. 84 (1880).

29 Alberti v. N. Y. etc. R. Co., 118 N. Y. 77.

30 Reddin v. Gates, 52 Ia. 210.

31 Rowell v. Fuller, 59 Vt. 695 (1887); Marcy v. Barnes, 16 Gray, 163.

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signature. Opinions of those acquainted with the handwriting in question formed from an examination of photographic copies of the signature or writing are entitled to but little weight.32 Nor will an expert be allowed to testify as to the genuineness of a signature, from comparison with photographic copies when the originals are not in court.3 And a disputed signature cannot be compared with photographic copies of other signatures admitted to be genuine, for the purpose of proving forgery. The witness should exercise his acumen upon the thing itself which is to be the basis of his judgment. 35 Where the originals are in court it is not proper to introduce photographic copies. In such case they would be additional and supplemental proof, neither necessary nor admissible before, and at best merely convenient aids to enable the jury to dispensed with the use of the originals.36 But the camera may be employed as a magnifying glass as, where in a dispute as to a figure in a note, enlarged photographic copies of the note were introduced to help the jury to decide whether the figure was a one or not.37 And in a case in New York, where the issue was whether the certification of a check purporting to have been made by the teller of the bank on which it was drawn, was genuine or not, the judge permitted the court room to be darkened and an expert with the aid of a calcium magic lantern threw an image from a photographic negative of the check in question upon the wall, to show that the writing was free and flowing and not the labored and re-touched signature usual in forgeries, and which some of the experts insisted appeared in this case. The exhibit seems to have had the desired effect, as the jury found that the signature was genuine.38

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In the celebrated Tichborne case in En

gland some years ago, photographs of letters and documents were used to facilitate the comparison of handwriting and for the purpose of identifying the writing.

Field notes of a survey in the general land office were attached to the depositions of clerks in the land office and admitted in evidence as part of the depositions to show what the notes were. The Supreme Court of the United States at an early date expressed its approval of the use of photographic copies for the comparison of handwriting. 43

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Papers and documents on file in court have been permitted to be removed and their places supplied, under the direction of the clerk by photographic copies.46 Pictures of the putative father and of the illegitimate child, are admissible in evidence for the purpose of showing resemblance between the two, but since great dissimilarity between kindred and strong resemblance between strangers are so common, photographs so used are entitled to but little weight.47

In an action for dower where the marriage was denied, witnesses who were present at the wedding of plaintiff, were shown photographs of the alleged husband and permitted

40 Howard v. Russell, 12 S. W. 525 (Tex. 1889).

41 Eborr v. Zimpleman, 47 Tex. 502.

42 Ayers v. Harris, 13 S. W. 768 (Tex. 1890).

43 Luco v. U. S., 23 How. 515.

44 U. S. v. Messman, U. S. D. C. So. D. N. Y..

45 Duffin v. People, 107 Ill. 113.

46 Daly v. McGuire, 6 Blatch. 137 (1868).

47 Re Jessup Estate, 81 Cal. 408 (1889).

to testify that the photographs represented the man to whom plaintiff was married in their presence.48 The apparent bodily health or condition of a person at the time of effecting insurance may, in a suit on the policy, be shown to the jury by means of photographs taken about the time insurance was effected.49

The use of photographs as evidence extends to criminal cases as well as civil. In a recent case of manslaughter tried in New York, the defendant was charged with criminal negligence in the erection of a building which had fallen and killed several persons. To prove the unsafe and negligent construction of the building, the State was permitted to introduce a photograph of the premises showing the condition of the walls as they were as soon as the structure fell. "It exhibited the surface condition of the walls and, no doubt, carried to the minds of the jurors a better image of the subject-matter concerning which negligence was charged, than any oral description by eye-witnesses could have done.50

In homicide cases, a photograph of the deceased is admissible in evidence to aid in identifying the deceased as the person seen with the defendant at a certain time and as the person testified to by various witnesses,51 or to prove the identity of the murdered man with a person who had disappeared,52 or to prove the identity of a certain person with the murdered man.53

In a case tried some years ago in New York, three persons had attempted to burglarize a store. They were discovered, and in the effort to capture them a clerk was killed by one of the burglars. A day or two afterwards the bodies of two men were taken from the river near by and the defendant was arrested in the neighborhood. On his trial for the murder of the clerk; it was alleged that the defendant and the dead men comprised the party of burglars and had been associated together. To assist in identifying the bodies and connecting the defendant with them when alive, photographs of the dead men taken after death, were submitted to the jury, and witnesses, relatives and ac

48 Wilcox v. Wilcox, 46 Hun, 32 (N. Y. 1887). 49 Schaible v. Wash. L. I. Co., 9 Phila. 136.

50 People v. Buddenseick, 103 N. Y. 500.

51 Marion v. State, 20 Neb. 233 (1886).

52 Udderzook Case, 76 Pa. St. 340.

53 Luke v. Calhoun Co., 52 Ala. 115.

quaintances of the dead men were permitted to give their opinion as to their identity.54Where a witness who had seen the body of the deceased, testified that he had seen the same man the previous evening at a certain place, and selected a photograph of the deceased's brother, as resembling the deceased, it was held competent for the State, in rebuttal, to introduce a correct photograph of the deceased, as the resemblance between the two brothers would have a material bearing upon the weight to be given to the testimony of the witness. 5

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On the trial of a person indicted for willfully neglecting to provide a child in his care and custody with proper and sufficient food, clothing and medicine, picture of the child before he went into the care of defendant, and also pictures taken shortly after he was taken from defendant's custody, are proper for the purpose of showing the emaciation of the child. Photographs of the place where a homicide was committed are admissible if taken before any material change has occnrred. A photograph of the locality where a murder occurred, taken before the trial with persons placed where defendant and his accomplices were said to have stood, has been held not incompetent as tending to influence the jury. The court seems to have questioned the propriety of this use however, and as the case was reversed on other grounds, recommended the State to support the photograph by evidence showing that the defendant occupied the position as shown in the photograph.58 Where the offense charged is selling obscene photographs, the photographs themselves may be submitted to the jury, 59

Lincoln, Nebraska.

H. J. WHITMORE.

54 Ruloff v. People, 45 N. Y. 213.

55 State v. Holden, 44 N. W. Rep. 123 (Minn. 1890). 56 Cowley v. People, 83 N. Y. 476.

57 Keyes v. State, 23 N. E. Rep. 1097 (Ind. 1890). 58 Shaw v. State, 9 S. E. Rep. 768 (Ga. 1889). 59 People v. Muller, 32 Hun, 209 (884).

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