The other questions in regard to damages relate principally to the subject of costs; and indeed, in the early periods of the English jurisprudence, damages and costs, damna et custagia were convertible terms;* but the questions which regard the relation of damages to costs, though extremely important in practice, are so local in their character, and depend so much on statutes, that it would be inexpedient here to do more than advert to them. In England, a petition of right is said to be maintainable for no other objects than land or specific chattels, certainly not for a sum of money claimed either as debt or by way of damages.t * Zink vs. Langton, Doug., 751. + Baron De Bode's Case, 8 Q. B., 208; where the authorities are stated at large. If a demurrer to a declaration in a suit by drawer against acceptor be overruled, the court may, in Indiana, assess the damages so far as the amount due on the bill is concerned; but as to the costs of the protest, if chargeable at all, there must be a jury. Phipps vs. Addison, 7 Blackf., 375. In the same State, in debt on a sheriff's bond upon the execution of a writ of inquiry, after a demurrer to the replication assigning breaches has been overruled, the quantum of the relator's damages is the only subject of inquiry. Clark et al. vs. The State, 7 Blackf., 570. CHAPTER XXV. OF DAMAGES WITH REGARD TO EVIDENCE. As a general rule the plaintiff is not allowed to testify-Exceptions in which he is admitted to give evidence. The witness is to testify only as to facts, and not as to opinions-Exception in case of experts-in case of value. Doctrine of Presumptions. Frequent necessity of being content with imperfect and unsatisfactory proof. We have now to consider the mode of proof by which claims to damage are substantiated. The rules which govern evidence as applied to fix the measure of relief, are neither numerous nor complex, but they deserve very careful attention. We have seen that in the early stages of the civil law, the plaintiff was allowed to fix the amount of the compensation to which he conceived himself entitled, subject only to the restraining hand of the judex. With us, the rule is carried to the other extreme, and as a general principle of the common law, neither party to the record is allowed to give testimony in any branch of the case.† But to this general rule certain exceptions have been introduced. The oath of the party is admitted in respect of a lost deed, or other paper preparatory to the introduction of secondary evidence to prove its contents. So, too, in complaints under the bastardy acts, the oath of the female is admitted to charge the defendant with the paternity of the offspring. So, again, the rule has been relaxed in order to prove the amount of compensation to which a party is entitled; thus the oath of the * Supra, 80. † In England, in an action of tort, where one defendant joins issue and the other lets judgment go by default, the party who has suffered judgment may give evidence for the plaintiff if he has no other interest than can be inferred from the fact of his being a party to the record. Haddrick vs. Heslop, et al., 12 Q. B., 267. A party to the record as such is no longer, in England, incompetent to testify. Worrall vs. Jones, 7 Bing., 895. plaintiff is admitted in many States of the Union to prove the truth of entries in his books, of goods delivered in small amounts, or of daily labor performed, when the party, from his situation, has no evidence but the accounts kept by himself, and where, as a general thing, from the nature of the traffic or service he cannot have. So, too, where robberies or larcenies have been committed, and no evidence exists but that of the party robbed or plundered, he has been admitted as a witness to prove his loss; for it is said that in these cases the party injured shall have an extraordinary remedy, in odium spoliatoris. On this ground in an action against the Hundred under the English statute of Winton, the person robbed was admitted as á witness to prove his loss and the amount of it.* So, too, in Pennsylvania, in an action against the county for the destruction of property by a mob, the plaintiff may prove her ownership and the value of wearing apparel destroyed.,† but not the destruction of household furniture, because there the argument ex necessitate does not apply. So, also, in equity, where a man ran away with a casket of jewels, the party injured was admitted as a witness.§ So, too, when the defendant, a shipmaster, broke open and plundered the plaintiff's trunk, the latter was allowed to testify to the contents of the trunk. An effort has been made in Pennsylvania to extend this exception to all cases of passengers by public conveyances, where there is no criminal nor even any tortious act committed by the defendant beyond mere negligence; and it has been said that in such cases the plaintiff may testify from necessity.¶ But in Massachusetts this has been denied ; the old and salutary principle has been adhered to, and in a case of mere negligence, it has been decided that the plaintiff is not competent, even though he has no other testimony as to the amount of his loss.** Another general rule which pervades all our law, is that * Bul. N. P., 187. Porter vs. Hundred of Reyland, Peake's Add. Cases, 203. Snow vs. Eastern Railroad Co., 12 Met., 44. + County vs. Leidy, 10 Barr., 45; see, also, Clark vs. Spence, 10 W., 585. McGill 28. Rowand, 3 Barr, 451. ↑ Ibid. § East India Co. vs. Evans, 1 Verm., 308. Herrman vs. Drinkwater, 1 Greenl., 27. Whitesell vs. Crane, 8 Watts & Serg., 369. ** Snow vs. Eastern R. R. Co., 12 Met., 44. the witness is to testify only to facts. He is to speak as to the facts which he has heard or seen. His opinion is not to be given, for it is the opinion of the jury on the testimony which forms the verdict and decides the case. But to this rule again there are many important exceptions. So pedigree is often proved by the hearsay of the family. So handwriting is proved by the opinions of those familiar with the signature of the party. So too, the witness has been allowed to state his opinion in cases of criminal conversation, to show the state of the affections of the parties.* And on similar grounds in cases of breach of promise of marriage. In an action of the latter description, the Supreme Court of New York said: "We do not see how the various facts upon which an opinion of the plaintiff's attachment must be grounded, are capable of specification, so as to leave it like ordinary facts as a matter of inference to the jury. It is true as a general rule, that witnesses are not allowed to give their opinions to a jury; but there are exceptions, and we think this one of them. There are a thousand things indicating the existence of degrees of the tender passion which language cannot specify. The opinions of witnesses on this subject must be derived from a series of instances passing under their observation, which yet they never could detail to a jury." So, too, evidence of this kind has been admitted in cases of insanity, but it has been pronounced by a very able judge "the most unsatisfactory and the least to be depended on."+ The general rule which requires a witness to speak to facts within his knowledge, is applied to the subject of compensation; the damage must be proved like any other fact in the cause, and no testimony amounting to mere opinion is competent. So in New York, a witness cannot be allowed to give his opinion as to the amount of damages sustained by a party in consequence of a mill lying still.§ So, the opinions of witnesses as to the amount of damages caused by the deprivation or withdrawal of water from a tavern, are inadmissible. So, too, on * Trelawney vs. Coleman, 2 Starkie, 168, 191. + McKee vs. Nelson, 4 Cow., 855. Clark vs. Fisher, 1 Paige, 171. Doolittle vs. Eddy, 7 Barb. S. C. R., 75. Harger vs. Edmonds, 4 Barb. S. C. R., 256. Giles vs. O'Toole, 4 Barb. S. C. R., 261. ascertaining the injury caused by an alleged nuisance, a witness cannot give his opinion as to the amount of damage.* So in an action for the breach of a covenant contained in a lease, that the defendant would not let any other mill site on the same stream, it was held not proper to admit witnesses to testify their opinion as to the amount of damage which the plaintiffs had sustained by the erection of the rival site, and a new trial was ordered.† And the correctness of the principle laid down in this case has been very recently affirmed.‡ On the same ground, and with still stronger reason, it has been decided in Ohio, that a person who is present during the trial of a cause, and has heard witnesses describe the manner in which a ford is injured by the erection of a dam across a stream of water below it, is not competent to give his opinion of the damages sustained by the party injured.§ So, intelligent merchants, well acquainted with the plaintiff and his business, were held not competent to give an opinion as to the damage of the plaintiff in being deprived of the advantage of his own care and oversight.|| To the general rule that the witness' opinion cannot be received as to the amount or character of injury sustained, there are, however, some considerable exceptions. Of these, perhaps the most comprehensive and important is that which admits persons of science, or experts in any profession, to testify as to their opinion on a given state of facts relating to matters in regard to which their education gives them peculiar capacity for forming a correct judgment.T So in Massachusetts, on the trial of an action to recover damages for injury done to the plaintiff's garden and nursery by smoke, heat, and gas proceeding from the defendant's brick kiln, two gardeners who had had much experience in raising and cultivating fruit trees, shrubs, and plants, and who had testified to the particulars of the plaintiff's injury, were allowed to give their opinion as to the amount of damage. And the Court say: "It seems to us that it would be impracticable to dispense with *Fish vs. Dodge, 4 Denio, 811. + Norman vs. Wells, 17 Wend., 187, 161, Fish vs. Dodge, 4 Denio, 811, 818. § Shepherd vs. Willis, 19 Ohio, 142. 28 Wend., 481; 17 Wend., 161; 24 Wend., 668; 21 Wend., 842. Folks vs. Chad, 3 Doug., 157. |