The same rule obtains also in

in Ohio, and North Carolina.16 Vermont, and has from a very early day," and, as we infer, in Alabama, 18 where it is held, that opinions as to the capacity of the testator, are not admissible on a question of his sanity, until the facts upon which they are based are given, and can be given, only by those whose long and familiar acquaintance with the deceased qualifies them peculiarly to detect any mental aberration in him. And the same rule obtains in Missouri; 19 where it was held, that, on a plea of insanity, it is competent for a witness, who is not an expert, to give his testimony, by way of opinion, as to the state of the prisoner's mind, before and at the time of the act; but the facts upon which such opinion is based must be stated.

12. It has always seemed to us, that this question is placed upon its true ground in Maryland,20 where it is held, that mere naked opinions of other persons than the subscribing witnesses to a will, and medical experts, are inadmissible in regard to the sanity of the testator; but the impression made upon the mind of a witness, by the conduct, manner, bearing, conversation, appearance, and acts of a testator in various business transactions, is not mere opinion; it is knowledge, and strictly analogous to the cases of personal identity and handwriting. See also, the high authority of the United States Court in New Jersey.21

15 Clark v. The State, 12 Ohio, 483.

16

Clary v. Clary, 2 Ired. Law Rep. 78. In this latter case, the learned judge shows, with great ability and abundant success, in our judgment, that the rule here adopted is the only one consistent with principle, or comprehensive enough to embrace the rationale of all the decisions upon this question, which are of generally acknowledged authority.

" Lester v. Pittsford, 7 Vt. 158; Morse v. Crawford, 17 Vt. 499.

Roberts v. Trawick, 13 Ala. 68.

"Baldwin v. The State, 12 Mo. 223.

"Townshend v. Townshend, 7 Gill, 10; Dorsey v. Warfield, 7 Md. 67. "Harrison v. Rowan, 3 Wash. C. C. 580. It is clear that unprofessional witnesses can give evidence only of facts and appearances within their own

13. This presents a considerable array of authority, sufficient, we think, to allow any court to decide the question in that direction, unless it regards the true principle applicable to the case, as lying in the opposite direction.

14. Upon the other hand, there are a number of the states which hold this class of testimony as inadmissible. It is so held in New York, by a divided court,22 and in Massachusetts, by an evident departure from what has been elsewhere regarded as the real point decided by the early cases in that state.23

observation, and that when they are allowed to express an opinion of the mental soundness of any person, it must be based upon facts and appearances within their own personal knowledge and observation. But it has been held, that no precise time or character of previous acquaintance can be laid down as a fixed rule. It depends upon the kind and degree of the mental affection. Powell v. The State, 25 Ala. 21; Norris v. State, 16 id. 776.

In a late case in Pennsylvania, Eckert v. Flowry, 43 Penn. St. 46, it was decided, that conversations held with the testatrix some time after the execution of the will, do not qualify a witness, to give an opinion as to her capacity to make a will, nor is evidence admissible that the executor, against whom fraud and undue influence in procuring the will was charged, he being plaintiff in the suit, had forbidden the witness to go and see the testator, a long time after the execution of the will.

22 Dewitt v. Barley, 5 Selden, 371, which is decided by five judges against three, and reverses the decision of the supreme court in the same case at general term. 13 Barb. 550, 580.

23 Commonwealth v. Wilson, 1 Gray, 339. In Poole v. Richardson, 3 Mass. 330, it is said: "Other witnesses were allowed to testify to the appearance of the testator, and to any particular facts, from which the state of his mind might be inferred, but not to testify merely their opinion or judgment." Other cases in Massachusetts adopt similar views. Buckminster v. Perry, 4 Mass. 593; Dickinson v. Barber, 9 Mass. 225; Needham v. Ide, 5 Pick. 510. See also, Gehrke v. The State, 13 Texas, 568, where it was held, that unprofessional witnesses could not be allowed to testify to the appearance of the person, whose sanity was in question, being similar to that of others, whom they had observed, and who were confessedly insane, nor that the person looked and acted like one insane. But the New York cases, until the late decision in the Court of Appeals, seemed to point in the opposite direction. Culver v. Haslam, 7 Barb. 314; Clarke v. Sawyer, 3 Sandf. Ch. 351.

15. The same rule obtains in the courts of common law in England, as we have already stated.24

16. There seems to be no question, that the subscribing witnesses to a will may be asked the general question, how the testator appeared in regard to soundness of mind, at the time of executing his will. But in some of the states, even the subscribing witnesses are to state the conduct and appearance

24 See ante, n. 6.

Needham v. Ide, 5 Pick. 510; Gibson v. Gibson, 9 Yerger, 329; Townshend v. Townshend, 7 Gill, 10. It may not be out of place here, to suggest, that the distinction in regard to allowing the subscribing witnesses to the will, a peculiar privilege in giving their opinion in relation to the sanity of the testator at the time of its execution, and denying that privilege to others, is, practically, wholly groundless, and an absurd one in itself. For in nine cases out of ten, at the present day, certainly, they are not selected by the testator, or from the number of his intimate friends and acquaintances; but more commonly are called by the scrivener, or solicitor, because they happen to be most convenient. And where such is the fact, it cannot be regarded as any thing less than an inconsistency, to allow such casual comer, who may never have met the testator in his life before, to express an opinion, whether based upon facts and appearances stated by him or not, in regard to the sanity of the testator, and his general testamentary capacity; and at the same time to reject similar evidence coming from his life-long, intimate, and familiar friends, and acquaintances, whose single narratives would often prove more satisfactory to the mind of the court and jury, than all the other testimony attainable, whether coming from the subscribing witnesses or from professional experts. It is some consolation to reflect, that where the refinements of the law attempt to enforce any such rules, not based upon reason, or principle, or the common experience of mankind, it is usually found impracticable, in its application to the detail of a trial. For how much soever courts, jurors, and counsel, may labor to obtain the testimony of one long and familiarly acquainted with the life and history of the testator, without allowing the opinion of the witness in regard to the state and condition of the testator's mind to transpire, it will be found never to succeed. It is impossible for any such witness to give his testimony, in regard to facts affecting the state of mind of the testator, without incidentally intimating, with sufficient distinctness, how his own mind has been affected by these facts, as they were passing. In Logan v. M'Ginnis, 12 Penn. St. 27, it is held, that subscribing witnesses may state their opinion without having previously stated the facts upon which it is based.

of the testator, in connection with the opinion they give in regard to his mental condition.26 But we cannot conceive, that the testimony of any witness upon this point could gain much credit, or have much influence upon the mind of the jury, except in connection with the facts, disclosing his conduct and appearance at the time, and we understand this is the general, not to say universal, practice in all courts, even in regard to professional experts, who have the opportunity of personal

observation.

17. It is important to have definite views of the character and extent of evidence coming from medical experts, and the form in which it may be received. A preliminary question is made by some writers, in regard to allowing general treatises upon scientific and professional subjects, to be read before the jury. This has been allowed by many courts, either as part of the testimony, or of the argument of counsel. But when objected to, they have not generally been allowed to be read, either to court or jury.27

18. The rule in England, seems to be settled in the same way.28 In the latter case, Tindal, Ch. J., said, "Physic depends

26

Cilley v. Cilley, 34 Me. 162. The inquiry as to sanity, extends over a considerable space of time, both before and after the fact. Jerry v. Townshend, 9 Md. 145.

27 Commonwealth v. Wilson, 1 Gray, 337; Washburn v. Cuddihy, 8 Gray, 430; Ashworth v. Kittridge, 12 Cush. 193. Such books were allowed to be read in Bowman v. Woods, 1 Iowa, 441.

28 Cocks v. Purday, 2 Car. & K. 270; Collier v. Simpson, 5 Car. & P. 74. In some English cases, medical books have been read without objection. Reg. v. Oxford, 9 Car. & P. 525; M'Naughten's case, 1 Townshend, St. Trials, 357, 358; Roger's Trial, 48, 76, 79, 80. The American cases follow the lead of the English cases. Melvin v. Easley, 1 Jones, Law, 386; Lunning v. The State, 1 Chandler (Wis.), 264, where it was held to be a matter in the discretion of the court. And in State v. Terrell, 12 Rich. Law Rep. 321, it was held, that experts' in giving their opinions, were not confined to the results of their own observation and experience, but may give opinions based upon information derived from books. So an expert may refer to other cases, in his own experience, as illus

more on practice than law. I think you may ask the witness, whether in the course of his reading he has found this rule laid down." "I do not think the books themselves can be read, but I do not see any objection to your asking Sir Henry Halford his judgment and the grounds of it, which may be in some degree founded on books as part of his general knowledge." This rule seems now to have obtained general currency, both in this country and in England.29

19. If there is any good reason why, when we are looking after a rule of law in the medical profession, we may not resort to the same mode of proof which we admit, in proof of the rules of municipal law, it must be found in the fact that the proof is not addressed to a tribunal supposed to be experienced in that law. If we were attempting to prove the law of the medical profession upon any given point, before a committee of learned doctors of medicine, we suppose no one could question the propriety of reading approved treatises. But the same has been held not to apply, where the evidence is adduced before a tribunal wholly inexperienced in the principles involved in, or the credit due to, the authorities offered.

20. It has been made a serious question in the English

trative of the case before the court. Parker v. Johnson, 25 Ga. 576. But he cannot give his opinion upon the opinions previously given by other experts. Walker v. Fields, 28 Ga. 237. Books not allowed to be read in Indiana. Carter v. State, 2 Carter, 617.

There is a valuable paper upon this subject in the late edition of Beck, Med. Jur. 948 (1863), where the remonstrances of the profession are given against the exclusion of medical books, as if it tended to throw disrespect upon the learning of the profession, which the reason formerly assigned for their exclusion seemed to imply, namely, that they could not be received as evidence in the cause, because the authors were not sworn! But when the true ground of exclusion is considered, that the court are not so far instructed upon the subject as to be able to understand and apply them properly, the disrespect, if any, falls upon the legal profession.

"2 Beck, Med. Jur. 972; Elwell on Med. Ev. 331.