He alleged that after his horse became frightened the motorman continued to operate the plow after seeing the danger he was in, the plaintiff, himself, being his only witness to that fact. Upon the other hand, four witnesses, all in the employ of the defendant, and who were on the plow at the time, testified that the motorman stopped the plow as soon as the horse appeared frightened. There was a verdict for the defendant. After the trial, and accidentally, the plaintiff discovered three additional witnesses who saw the accident, and offered to testify that the snow-płow did not stop until after the accident. The plaintiff offered the discovery of this evidence as a ground for a new trial. The trial court denied the motion, from which action of the court the plaintiff appealed. In overruling the decision of the trial court, the Supreme Court of Maine held that it is not an absolute and unqualified rule that a new trial will not be granted under any circumstances upon newly discovered cumulative evidence. On this point the court said:

"It is true that this evidence is cumulative, but it is not an absolute and unqualified rule that a new trial will not be granted under any circumstances upon newly discovered cumulative testimony. Snowman v. Wardwell, 32 Me. 275. When the newly discovered evidence is additional to some already in the case in support of the same proposition, the probability that such new evidence would change the result is generally very much lessened, so that much more evidence, or evidence of much more value, will generally be required when such evidence is cumulative; but if the newly discovered testimony, although merely cumulative, is of such a character as to make it seem probable to the court that, notwithstanding the same question has already been passed upon by the jury, a different result would be reached upon another trial with the new evidence, then such new trial should be granted.”

While this decision is certainly contrary to the great weight of authority, we think it eminently just and fair. The rule or principle denying a new trial on the ground of newly discovered evidence, where such evidence is merely cumulative, does not rest upon any just or solid foundation when applied rigidly and inflexibly. As was said by the Supreme Court of New York: "It is simply the dictate of authority which has been followed without much consideration of its foundation, and is not one to be extended to cases not falling directly within its language. There is certainly no justice in subjecting a person to what is really an unfounded claim, or for preventing him from maintaining an equally well-founded defense, because the evidence discovered by him by which that can be done may be of the same quality or description as that given upon the trial in which he has been defeated." Wilcox Silver Plate Co. v. Barclay, 48 Hun (N. Y.) 54.

In many jurisdictions, however, the courts have broken away from the hard or fast rule as to

newly discovered cumulative evidence. or showing a tendency in that direction. And the more just and logical rule now being recognized is that newly discovered evidence, although cumulative, will be sufficient ground for a new trial, if it appears that such evidence would probably change the result. Keet v. Mason, 167 Mass. 154; Hart v. Brainerd, 68 Conn. 50; Kochel v. Bartlett, SS Ind. 237; Cleslie v. Frerichs, 95 Iowa, 83; Mercer v. Mercer, 87 Ky. 21; State v. Stowe, 3 Wash. 206; Smythe v. State, 17 Tex. App. 244; White v. Nafus, 84 Iowa, 350; Anderson v. State, 43 Conn. 514.

WITNESSES-RULE FOR TESTING THE COMPETENCY OF INFANTS AS WITNESSES.-Difficulty has often been encountered by lawyers and trial courts in determining when a child of tender years shows sufficient appreciation of the obligation of an oath to render the child competent as a witness. We know no clearer or more accurate expression of the rule to be followed in this class of cases than that offered by the Supreme Court of Iowa in the recent case of State v. King, 91 N. W. Rep. 768. Speaking through Chief Justice Ladd, the court said:

"When a child under 14 years of age is called as a witness, the preliminary inquiry should be directed solely to ascertaining whether sufficient capacity is possessed to understand the obligation of an oath, Above that age every person is presumed, until the contrary appears, to have common discretion and understanding. No presumption prevails in favor of the competency of one under 14 years of age. Anciently, a child of less. than nine years was conclusively presumed incapable, but all modern decisions seem to declare intelligence, and not age, the proper test. See State v. Whittier, 21 Me. 341, 38 Am. Dec. 272. Under our statute, "every human being of sufficient capacity to understand the obligation of an oath is competent as a witness except as otherwise declared." Section 4601, Code. Facts which formerly caused the exclusion of testimony are now shown for the purpose of lessening credibility. Section 4602. Intelligence, then, and not belief, nor the power of moral perception, is the test. White v. Com., 96 Ky. 180, 28 S. W. Rep. 340; Com. v. Carey, 2 Brewst. 404. Treatment of knowledge of God and the elementary precepts of Christianity as controlling seems to rest, in part, at least, on the old rule exacting faith as one of the necessary qualifications to give testimony. Beason v. State, 72 Ala. 191; State v. Michael, 37 W. Va. 565, 16 S. E. Rep, 803, 19 L. R. A. 605; State v. Belton, 24 S. Car. 185, 58 Am. Rep. 245; State v. Washington, 49 La. Ann. 1602, 22 So. Rep. 841, 42 L. R. A. 553. These matters may well be considered in measuring the minor's intelligence, for religious training in early childhood is the rule, rather than the exception, in this Christian land. Evidence of the extent of their appreciation may materially aid in estimating capacity, but it is not to be regarded

as decisive. A child is to be no more rejected as a witness because of not having heard of God, the Devil, or the Saviour, than a person of maturity with such knowledge, but without belief in their existence. Ordinarily, the attention of a person of immature age is not directed to controversies calling for judicial investigation, and, when it does become necessary to use them as witnesses, instruction is essential that they may know precisely what the law exacts. It is not so material when this is given,-whether shortly before the trial or during its progress. It is material that the meaning and obligation of the oath be appreciated and comprehended. State v. Todd, 110 Iowa, 632, 82 N. W. Rep. 322. Indeed, causes have been held properly postponed for the purpose of thus instructing a witness. Com. v. Lynes, 142 Mass. 577, 8 N. E. Rep. 408, 56 Am. Rep. 709. Contra, Tayloe v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656. As capacity to understand, and not the character of the child's training, is the test, it can make little difference when instruction has been given. It is the better practice, however, to advise the proposed witness long enough before the trial to permit of reflection on the character and responsibility of of the new situation in which he is to be placed. The decision as to capacity is primarily for the judge, though the evidence adduced may be considered by the jury, in connection with the age of the witness, his understanding and sense of moral accountability, in passing upon the value of the the testimony subsequently given on the merits. The court sees the witness, notices his manner, observes the apparent degree of intelligence and maturity of mind; and, as these matters cannot be photographed in the record, its decision will not be disturbed unless clearly erroneous. Wheeler v. U. S., 159 U. S. 523, 16 Sup. Ct. Rep. 93, 40 L. Ed. 244; State v. Juneau, 88 Wis. 180, 59 N. W. Rep. 580,24 L. R. A. 857, 43 Am. St. Rep. 877;Com. v. Robinson, 165 Mass. 427, 43 N. E. Rep. 121; Davidson v. State, 39 Tex. 129; State v. Richie, 28 La. Ann. 327, 26 Am. Rep. 100; State v. Michael, 37 W. Va. 569, 16 S. E. Rep. 803, 19 L. R. A. 605, and note."

necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although alone, it might not justify a verdict in accordance with it. Therefore, facts which are apparently collateral may become relevant on proof that they are connected by some link with the matter in issue, or where there is such logical connection between the fact offered as evidence, and the issuable fact that proof of the former tends to make the latter more probable or improbable. The question has frequently arisen in the courts whether the values of lands can be shown by evidence of sales of other lands in the neighborhood. It is clear that the opinions of witnesses founded upon a knowledge of the location, productiveness, or adaptation of the land to particular uses not speculative, or of the market or selling price of the land in the vicinity, are legal evidence to prove value. 2

3

Negative Doctrine. But there is a line of authorities which hold that though the opinions of witnesses thus qualified by their knowledge of the subject are competent evidence they cannot, upon direct examination, be allowed to testify concerning particular sales of adjoining or neighboring lands, notwithstanding those transactions may constitute the source of their knowledge. These decisions are based on the theory that what one may have received for his property is a collateral fact to an issue involving what another should receive, and, if in no way connected with it, proves nothing; and also, on the reasoning that direct proof of other sales and of the prices paid gives to the agreements of such third parties the effect of evidence without

1 Greenl. on Evi. secs. 51, 52, 448; Best. Ev. sec. 251; Jones, Ev. sec. 136.

2 Jones, Ev. sec. 165; Railroad Co. v. Pearson, 35 Cal. 247, 261; Railroad Co. v. Hiester, 40 Pa. St. 53, 55; Mayor, etc., v. Smith & Schwarz Brick Co., 80 Md. 458, 31 Atl. Rep. 423.

3 Railroad Co. v. Pearson, 35 Cal. 247; Spring Valley Waterworks Co. v. Drinkhouse, 92 Cal. 528, 28 Pac. 681; Railroad Co. v. Keith, 53 Ga. 178; Stinson v. Railway Co., 27 Minn. 284, 6 N. W. Rep. 784; Railroad Co. v. Benson, 36 N. J. Law, 557; Bradshaw v. Railroad Co.,45 Hun, 605, 1 N. Y. Supp. 691; Mayor, etc., v. McCarthy, 102 N. Y. 463, 630; Huntington v. Attril, 118 N. Y. 365, 23 N. E. Rep. 544; In re Thompson, 127 N. Y. 463, 28 N. E. Rep. 384, 14 L. R. A. 52; Railroad Co. v. Hiester, 40 Pa. St. 53; Railroad Co. v. Bunnell, 81 Pa. St. 414; Railroad Co. v. Vance, 115 Pa. St. 325, 8 Atl. Rep. 764; Railroad Co. v. Ziemer, 124 Pa. St. 560, 17 Atl. Rep. 187.

giving any opportunity for cross-examination to show that the price paid was excessive or inadequate. As was said in a proceeding to condemn a water right, where evidence of the amount paid by the city for a similar water right was sought to be introduced, "a party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken. If some evidence of value, then, prima facie, a case may be made out, so far as the question of damages is concerned, by proof of a single sale, and thus the agreement of the parties which may have been the result of necessity or caprice would be evidence of the market value of land similarly situated, and becomes a standard by which to measure the value of land in controversy. This would lead to an attempt by the opposing party to show first, the dissimilarity of the two parcels of land; and, second, the circumstances surrounding the parties which induced the conveyance,-such as a sale by one in danger of insolvency, in order to realize money to support his business, or a sale in any other emergency which forbids a grantor to wait a reasonable time for the public to be informed of the fact that his property is in the market; or, on the other hand, that the price paid was excessive, and occasioned by the fact that the grantee was not a resident of the locality, nor acquainted with real values, and was thus readily induced to pay a sum far exceeding the market value. Thus, each transaction in real estate claimed to be similarly situated might present two side issues, which could be made the subject of as vigorous contention as the main issue, and, if the transactions were numerous, it would result in unduly prolonging the trial, and unnecessarily confusing the issues, with the added disadvantage of rendering preparation for trial difficult. "4

Upon cross-examination, however, the knowledge, fairness, and honesty of the witnesses may be tested, if desired by the party in whose interest the examination is be

4 In re Thompson, 127 N. Y. 463; 28 N. E. Rep. 389; 14 L. R. A. 52.

ing conducted.5 It seems that a departure from the ordinary rule may be allowed in exceptional cases where, under the circumstances, evidence of the price paid for property similar to that in controversy is the most satisfactory evidence obtainable, and where the considerations which led to the adoption of the rule, viz., the avoidance of the introduction of collateral issues, and the protection of litigants who could not be expected to try such issues, of which they had not previously had notice, are absent. Thus, in an action against the city of New York to recover for bulkhead property, consisting chiefly in an easement for dock and wharfage purposes acquired by the plaintiff under grants from the state and city, and which had been destroyed by the city in the construction of a new bulkhead line under statutory authority, evidence of the price paid by the city for property similar to the plaintiff's was admitted. In this case the sales proven were confined to purchases by the city itself, and it had due notice by a decision of the general term that this field of inquiry would be entered upon.

6

Affirmative Doctrine. An entirely different rule is maintained in other states. Many decisions-doubtless the greater weight of authority-hold that it is proper to consider the sales of similar property, in the same neighborhood, at about the same time. The Supreme Court of Missouri in a recent case, say: "We think the evidence of sales of similar property to that in question, made in the neighborhood, about the same time, was admissible to aid the jury in determining the damage to which the owner was entitled. The value of property is ascertained largely from such sales, and the opinions of witnesses as to values are largely predicated upon them. It is best, when it can be done, to put the jurors in possession of all the facts from which values are ascertained, and allow them to draw the conclusion therefrom. Witnesses basing their opinions upon recent sales of like property, are liable to exaggerate or underestimate values. In any consideration they are no more capable of deducing fair conclusions

5 Greenl. Ev. sec. 448; Railroad Co. v. Pearson, 35 Cal. 247; Spring Valley Waterworks Co. v. Drinkhouse, 92 Cal. 528, 28 Pac. Rep. 681; Railroad Co. v. Stewart, 47 Kan. 704.

6 Langdon v. Mayor, etc., of City of New York, 133 N. Y. 628, 31 N. E. Rep. 98.

from the known facts than the jury. The object is to ascertain the general market value, and if particular sales are made under exceptional circumstances the fact can be shown, and the jury can determine its probative force. Certainly, no more reliable method of determining the fair market values of lands can be reached than that derived from bona fide sales of similar lands in the vicinity. The objection that such evidence raises collateral issues, as to the character of the land sold, and the circumstances of such sales, is more than compensated for by its value in aiding the jury to a correct conclusion.

997

Similarity in Character.-In those jurisdictions where such evidence is admitted, it is agreed that the proof of other sales must be limited to those of properties similar in character. Thus, it would be clearly incompetent, on the question of the values of farming lands, to prove the prices for which city property had been sold, or to consider sales of

7 Railway Co. v. Clark, 121 Mo. 169, 25 S. W. Rep. 192, 57 Am. & Eng. R. Cas. 542. See, also, 10 Am. & Eng. Ency., of Law, (sec. ed.) 1155; Laflin v. Railway Co., 33 Fed. Rep. 415; Patterson v. Boom Co., 3 Dill. (U. S.) 465; White v. Hermann, 51 Ill. 243; Railroad Co. v. Haller, 82 Ill. 208; Railroad Co. v. Marony, 95 Ill. 179; Provision Co. v. City of Chicago, 111 Ill. 651; Cemetery Association v. Railroad Co., 121 Ill. 199, 12 N. E. Rep. 536; Sherlock v. Railroad Co., 130 Ill. 403; O'Hare v. Railroad Co., 139 Ill. 151; Town of Cherokee v. Sioux City, etc. Land Co., 52 Iowa, 279, 3 N. W. Rep. 42; City of Paducah v. Allen, 63 S. W. Rep. (Ky.) 981; Norton v. Willis, 73 Me. 580; Moale v. Mayor, etc., 5 Md. 324; Mayor, etc., of Baltimore v. Smith & Schwarz Brick Co., 80 Md. 458, 31 Atl. Rep. 423; Gardner v. Brookline, 127 Mass. 358; Wyman v. Railroad Co., 13 Metc. (54 Mass.) 316; Paine v. City of Boston, 4 Allen 168; Shattuck v. Railroad Co., 6 Allen 115; Hunt v. City of Boston, 152 Mass. 168, 25 N. E. Rep. 82; Roberts v. City of Boston, 149 Mass. 347, 21 N. E. Rep. 668; Benham v. Dunbar, 103 Mass. 365; Stevens v. Springer, 23 Mo. App. 375; Markowitz v. Kansas City, 125 Mo. 485, 28 S. W. Rep. 642, 46 Am. St. Rep. 498; In re Forsyth Boulevard, 127 Mo. 417, 30 S. W. Rep. 188; Thornton v. Campton, 18 N. H. 20; Railroad Co. v. Greely, 23 N. H. 242; White v. Railroad Co., 30 N. H. (10 Fost.) 188; Hoit v. Russell, 56 N. H. 242; Laing v. Railroad & Canal Co., 54 N. J. Law, 576; 25 Atl. Rep. 409, 33 Am. St. Rep. 682; Sullivan v. Railway Co., 68 S. W. Rep. (Tex) 745; Watson v. Railroad Co., 67 Wis. 332, 15 N. W. Rep. 468; Washburn v. Railroad Co., 59 Wis. 364, 18 N. W. Rep. 328, 20 Am. & Eng. R. Cas. 225.

8 Jones, Ev. sec. 165; Concordia Cemetery Association v. Railroad Co., 121 Ill. 199, 12 N. E. Rep. 536; Cummins v. Railroad Co., 63 Iowa, 397, 19 N. W. Rep. 268; Hollingsworth v. Railroad Co., 63 Iowa, 443; 19 N. W. Rep. 325; Lyman v. Boston, 164 Mass. 99, 41 N. E. Rep. 127; Laing v. Railroad Co., 54 N. J. Law, 576, 25 Atl. Rep. 409, 33 Am. St. Rep. 682; Daigneault v. Woonsocket, 18 R. I. 378, 28 Atl. Rep. 346; Washburn v. Railroad Co., 59 Wis. 364, 18 N. W. Rep. 328.

upland where the value of wharf property was in issue. 9 Hence, where cemetery land sought to be condemned is not laid out into lots and improved as cemetery property, proof of sales of lots in other cemeteries is not competent on the assessment; 10 and where a lot was similar to the land taken for public use only in being low and traversed by a brook, and was dissimilar in access from streets, nearness to houses, and likelihood of coming into the market, such evidence was considered inadmissible.11 On the same principle, evidence of what a lot on the opposite side of the street sold for is incompetent, where there is no proof of similarity in condition or improvement, or any association except proximity of locality. 12 However, the lots or tracts need not be of the same size to render such evidence admissible, 13 and testimony may be competent, though one piece of land has buildings on it, and the other has not;14 or, though, where there are buildings on both lots, they are not the same kind. 15 Thus, the fact that one tract is bounded by a pond, while the other is not, will not, of itself, render such evidence incompetent.16

Similarity in Location.—It is another condition of the reception of such testimony that the proof of other sales must be limited to those in the same locality. "In determining this question, however, the nature of the land must be taken into consideration. If the

9 Boston & W. Railroad v. Only Colony Railroad, 3 Allen, 142.

10 Concordia Cemetery Association v. Railroad Co. 121 Ill. 199, 12 N. E. Rep. 536.

11 Chandler v. Jamaica Pond Aqueduct Corporation, 122 Mass. 305.

12 Bruner v. Threadgill, 88 N. Car. 361.

13 Sawyer v. Boston, 144 Mass. 471, 11 N. E. Rep. 711. 14 Patch v. Boston, 146 Mass. 52, 14 N. E. Rep. 770. 15 Pierce v. Boston, 164 Mass. 92, 41 N. E. Rep. 227. 16 Pierce v. Boston, supra. "From the nature of the case, no two estates can be exactly alike. The question in each case is whether the similarity is sufficient to afford material assistance to the jury in determining the value of the estate in controversy, or whether the dissimilarity is such that the jury will be liable to be misled and prejudiced by the evidence. It is evident that there may be considerable difference in the size, shape, situation, use, and immediate surroundings of two estates, and perhaps in other respects, and yet the price which one brought may be of substantial assistance in determining the value of the other. There may be general consideration, applicable to both alike, which largely affect their value, and render it proper that the price paid for one should be considered in arriving at the value of the other, notwithstanding the differences between them." Lyman v. Boston, 164 Mass. 99, 41 N. E. Rep. 127.

lands are thinly settled, or are used for agricultural purposes, it might be proper to receive evidence of the sales of other lands several miles away; while if the lands were city lots, a distance of several blocks might render the evidence improper."'17 Thus, evidence of sales of prairie land used for farming purposes one mile distant from similar land was received;18 and on an issue of the value of a quantity of lowland and flats in a harbor, testimony was admitted regarding the price obtained for lands and islands and headlands in the harbor from one-half mile to six miles distant,19 but evidence as to the sale of an ice privilege seven or eight miles distant was held too remote, the issue being the value of a similar privilege.20 Evidence of sales of city lots on the same street and within one hundred and seventy-six feet was admitted,21 but where the lot was one thousand feet away, and in another town, the testimony was considered incompetent." 22 The same view was taken where the lots were on the opposite side of the same street, but eight hundred feet distant. 23 When the land is of rare quality, and is adapted to a particular use, a more liberal rule applies, and if the land sold is in the same general locality and of the same peculiar quality, the price obtained may afford a just measure of the value of the land in controversy; accordingly, where land condemned was adapted to the cultivation of cranberries, the price paid for similar land across a river and in another town was considered, 24 and where island property peculiarly suited for logging booms by reason of its position in the river, and its shape and size, was sought to be taken for public use, a more liberal inquiry was permitted.2

25

Similarity in Time. Evidence of other sales should not be received if it appears that they were too remote in point of time. The lapse of time will affect the competency of the testimony to the degree that the change in land values, in the vicinity, if any, renders the

17 Jones, Ev. sec. 165.

18 Concordia Cemetery Association v. Railroad Co., 121 Ill. 199.

19 Benham v. Dunbar, 103 Mass. 365.

20 Ham v. Salem, 100 Mass. 350.

21 Paine v. Boston, 4 Allen, 168.

22 Chandler v. Jamaica Pond Aqueduct Corporation, 122 Mass. 305.

23 Hunt v. Boston, 152 Mass. 168, 25 N. E. Rep. 82.

24 Gardner v. Brookline, 127 Mass. 358.

25 Patterson v. Boom Co., 3 Dill (U. S.), 465.

evidence misleading, and in determining the question the court will consider whether or not the land is so situated that rapid changes have taken place in the value. A sale of ten or twelve years before is too remote in nearly every case, 26 and a year may be too long a time.27 Evidence of sales from a few months to two or three years before or after is generally admissible, though the property may have risen in value somewhat since those sales, 28 or though such municipal improvements as electric cars have since been introduced, if the general rise in value resulting therefrom has not been so great as to render it misleading as a standard of comparison. 29 Sales of four or five years,30 and, where there was litttle change in the adaptability of value of the land, of even eight years, have been considered. 31

Discretion of Court. - It is evident that while the conditions surrounding the different sales should be similar they need not be exactly the same, to justify the admission of testimony of this character. The question whether other lands, the sales of which are sought to be shown to prove value, are sufficiently like the land whose value is sought to be proven, and are sufficiently near in point of time and location, to make the evidence competent, is largely within the discretion of the judge or officer presiding at the trial.32 And the court in its discretion may so limit such testimony as to prevent the trial of too many collateral issues. 33 But the court's discretion is not unlimited. If he excludes sales of land lying very near the land in question, upon the ground that they are too remote,&

34

26 Everitt v. Railroad Co., 59 Iowa, 243; Sullivan v. Railway Co., 68 S. W. Rep. (Tex.) 745.

27 Green v. Fall River, 113 Mass. 262.

28 Patch v. Boston, 146 Mass. 55; 14 N. E. Rep. 772; Roberts v. Boston, 149 Mass. 346; 21 N. E. Rep. 668; Pierce v. Boston, 164 Mass. 92, 41 N. E. Rep. 227. But see, May v. Boston, 158 Mass. 21, 32 N. E. Rep. 902. 29 Bowditch v. Boston, 164 Mass. 107, 41 N. E. Rep. 132.

30 Thornton v. Campton, 18 N. H. 20; Gardner v. Brookline, 127 Mass. 358; Watson v. Railroad Co., 57 Wis. 364, 18 N. W. Rep. 328; contra, Huut v. Boston, 152 Mass. 168, 25 N. E. Rep. 82.

31 Benham v. Dunbar, 103 Mass. 365.

32 Chandler v. Jamaica Pond Aqueduct Corporation, 122 Mass. 305; Paine v. Boston, 4 Allen, 168; Shattuck v. Bailroad, 6 Allen, 115; Presbrey v. Railroad Co., 103 Mass. 1; Benham v. Dunbar, 103 Mass. 365; Sawyer v. Boston, 144 Mass. 471; Green v. Fall River, 113 Mass. 262; Railroad Co. v. Marony, $5 Ill. 179.

33 Amoskeag Co. v. Head, 59 N. H. 332.

34 Paine v. Boston, 4 Allen, 168.