was excluded had been sitting beside Miss Donaldson and Ferguson at the moment this person passed, and that their knowledge of Richardson and their capacity for observation were equal in all respects to that of Miss Donaldson and Ferguson, and that they had been called by the defense to prove that, notwithstanding these facts, not one of the four was able to identify the person passing, can it be supposed that their testimony could have been properly excluded? And, if not, is there any rational ground, either in common experience, or in the rules of evidence, upon which it should be excluded as it was offered? The testimony of Miss Donaldson and Ferguson was but their narration of the effect produced on their minds by the facts observed, but upon sound legal principles it becomes primary evidence, because the conditions producing that effect could not be reproduced in concrete form to the jury. Wharton says this is especially true in questions of identification, "where a witness is allowed to speak as to his opinion or belief" (Whart. Cr. Ev. § 459); and again, he says, in section 807, "In questions of identity we have, after all, to go back to opinion." In Com. v. Dorsey, 103 Mass. 420, Chief Justice Chapman said: "In testifying to the identity of a person, the statement often can be nothing more than belief or opinion. This is especially so when the person is seen in the night, or at a distance, or for a very short time;" and in the case before us all the elements of uncertainty and doubt mentioned by him are found. The cases show that whenever the witness has had the means of observation, and the facts and circumstances which lead his mind to a conclusion are incapable of being detailed and described so as to enable any one but the observer himself to form an intelligent conclusion from them, the witness is allowed to give his own opinion, or the conclusion of his own mind. This is the principle upon which the testimony of Miss Donaldson and Ferguson had value, and was admitted, and upon which the testimony of Unger and his companions, if they had been present also, whatever the result of their observation, whether to confirm or contradict, would have been equally admitted. But it may be said their observation was not of the same facts, but was a mere experiment, the observation of other, though analogous, facts, and therefore neither these facts nor the opinion resulting therefrom are admissible. Upon principle we can discover no sound cause for such distinction. If the brilliancy of the lamp at that point on May 2d was such as to enable Miss Donaldson and Ferguson to identify Richardson under the circumstances stated, it should have enabled Unger and his companions, on May 27th and 28th, their vision being equally good, to identify a person equally well known to them, under precisely similar conditions and circumstances. This is a proposition which ought not to require argument for its

tions were as nearly identical when the experiments of Unger were made as it was in human care and caution to have them. The seat at the railroad and the street lamp were the same, and in the same locations; the lamp was burning with the same power and brilliancy; the season of the year and the atmospheric conditions were the same; the hour about 35 minutes later only, but at that date the sun set 25 minutes later than on May 2d, and the decline of the natural light must have been about the same; no cause can be suggested for any difference in the diffusion of light from the lamp, and there was no change in any of the surroundings of the place. In Yates v. People, 32 N. Y. 509, where the question was the capacity of the traverser to identify the deceased, whom he had killed, as a police officer, by his uniform, cap, and shield, by the light of a street lamp, at 9 o'clock on the evening of October 1st, evidence was offered of an experiment, made January 21st following, at the same lamp and the same hour, and the evidence was excluded; not, however, because it was per se inadmissible. but because the seasons of the year were different, involving probable different atmospheric conditions, and because there was no offer to prove that the conditions and power of the light were the same, or that the general surroundings were the same. But in Railroad Co. v. Champion (Ind. Sup.) 32 N. E. 874, 23 L. R. A. 861, where an accident had occurred in the management of a hand car, evidence of an experiment with a similar car, with the same brakeman in charge, on the same siding, and under the same circumstances, was held, on appeal, to have been improperly excluded by the trial court. The case of Smith v. State, 2 Ohio St. 511, presents an interesting examination by Judge Thurman of the legal principles by which such evidence should be tested. Holcombe had been fired upon, at night, through the window of a tavern, while stooping to take some books from a table near the window. He testified that he saw, through the glass, a man very close, with arm extended, and a pistol in his hand, directed at him, and that he thought it was the defendant: that at the moment the pistol was discharged, and by the flash, he distinctly saw and positively recognized the defendant. The state also examined other witnesses, not present at the shooting, as to experiments and observations made by them at that window. under the same circumstances in all respects as those of the actual shooting, and as to their opinion of the results, for the purpose of proving by inference from such observations that Holcombe could have seen and recognized the defendant, as he swore he did. The defendant then offered to prove by other witnesses that shortly after the shooting, at another spot than that where it had occurred, they had made experiments as nearly as possible similar in all respects to those of the state, and that, though they could see the

person on the outside of the window, they could not distinguish nor identify him, either before the firing or by the flash at the discharge of the pistol. The trial court excluded all the facts offered in evidence, but permitted the witness, as an expert in the laws of light and vision, to state his opinion as to the effect of the sudden light made by the discharge of the pistol. The exclusion of the facts and of the resulting opinion thereon was held error by the supreme court, Judge Thurman saying: "It was certainly lawful to disprove Holcombe's statement by showing the impossibility, or the natural improbability, of its being true; but it is said this could not be done by proof of experiments. If not, how could the proof be made? No one but Holcombe was looking through the window when the crime was committed. No one but him saw the pistol fired, or the person who did it. Direct contradiction by eyewitnesses was, there. fore, impossible, and would, perhaps, be equally impossible in a large majority of the cases. Unless, then, proof of experiments is receivable, a man is very much at the mercy of another who swears against him, and perjury, or mistake, however great, instead of incurring punishment or being rectified, may answer to produce conviction. It was also argued that the state cannot come prepared to meet proof of facts that are not part of the res gestæ. But the credibility of testimony is always in issue, and the state must come prepared to maintain the credibility of hers. Finally, it is said that, notwithstanding the result of the experiments, it is possible Holcombe saw what he said he did. Granted; but what of that? It was not indispensable to the defense to prove the utter impossibility of his statement. Evidence that tended to show its improbability was competent, and such evidence, if it did not convince, might at least have raised a reasonable doubt in the minds of the jury." These observations are so sensible and just; they come from so high a source, and throw so clear a light upon the question before us,that we have felt justified in repeating them, and we are clearly of opinion that the evidence offered under the second exception was competent, whatever may be its weight, and should have gone to the jury for their consideration.

The first and third exceptions are substantially the same. The first presents the question whether one who has denied offering a bribe to a witness to prevent his giving testimony in that cause may be contradicted by the person to whom the bribe was offered. The third is whether the same witness, who has also denied offering a bribe to another witness to induce him to testify in that cause after the witness has informed him he knows nothing but hearsay, may be contradicted in like man

It was contended that he cannot, because of the well-established rule of evidence that where a witness, on cross-examination, has answered a question collateral to the issue, such answer cannot be contradicted. But this

rule leaves undeclared what is, within the cases, irrelevant or collateral for the purpose of excluding the contradicting evidence. In the leading case of Attorney General v. Hitchcock, 1 Exch. 91, Chief Baron Pollock says: "The test whether the matter is collateral is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence. If it have such a connection with the issue that you would be allowed to give it in evidence, then it is a matter on which you may contradict him." In that case it was held that a witness who had denied on cross-examination that he had said the officers of the crown had offered him a bribe to testify as he did could not be contradicted by proof that he had so said, and we have no occasion to doubt the correctness of that decision. As was said in the course of that opinion: "It is totally irrelevant to the matter in issue that some person should have thought fit to offer a bribe to the witness to give an untrue account of a transaction, and it is of no importance whatever if that bribe was not accepted. It is no disparagement to a man that a bribe is offered to him. It may be a disparagement to the person who makes the offer. Lord Stafford's Case, 7 How. St. Tr. 1400, was totally different. There the witness himself had been implicated in offering a bribe to some other person. That immediately affected him, as proving that he had acted the part of a suborner for the purpose of preventing the truth. In that case the evidence was to show that the witness had offered a bribe in the particular case, and the object was to show that he was so affected towards the party accused as to be willing to adopt any corrupt course in order to carry out his purpose." And Baron Alderson said in the same case: "The evidence is receivable as tending to show that the man who himself came to give evidence against Lord Stafford was embittered against him, and had endeavored to persuade other people to give false evidence on the same side. That had a tendency to show that his testimony could not be relied on by the jury." In Reg. v. Burke, 8 Cox, Cr. Cas. 44, the above case was reviewed by nine judges, and was held to have placed the rule of law upon reasonable ground, and all the judges agreed that the rule of exclusion does not embrace cases "where the matter inquired into is of a kind which brings a witness into special connection in some way with the subject of the issue, or with one of the parties to the issue; as, where the matter inquired into is whether the witness has not received a bribe from one of the parties, or whether the witness was not living as the mistress of one of the parties." The inquiry in the case before us is precisely that in Lord Stafford's Case, 7 How. St. Tr. 1400, and falls directly within the reasoning of Reg. v. Burke, supra, and of Moriarty v. Railroad Co., L. R. 5 Q. B. 319, where Chief Justice Cockburn said: "If you can show that a plaintiff has been suborning false testimony, it is strong

In

evidence he knew perfectly well his cause was an unrighteous one, and it is evidence which ought to be submitted to the consideration of the tribunal which has to judge of the facts, inasmuch as it goes to show he thinks he has a bad case." Here the witness is not technically a party, but, as prosecuting witness, his position, for the purposes of this inquiry, is not distinguishable from that of a party. Wise v. Ackerman, 76 Md. 394, 25 Atl. 424, it was proposed, on cross-examination of a witness testifying for plaintiff in a damage suit, to ask whether he had not said, in urging settlement of another damage suit, that he, as a medical witness in a former trial of the then pending case, had been instrumental in getting a big verdict for the plaintiff; and the question was not allowed. Upon appeal this court reversed the judgment, Chief Justice Alvey saying: "It was clearly within the scope of proper cross-examination, and, upon the witness denying the use of the language imputed to him, it could be competent to prove what he did say, not with the view of having a direct effect upon the issue, but to show what was the state of mind of the witness, his relation to the plaintiff, and his motive and temper in the particular transaction, so as to enable the jury to determine the weight due to his testimony; and this is in no proper sense collateral to the inquiry." We think the testimony excluded under the first and third exceptions should have been admitted. Judgment reversed, and cause remanded for a new trial.

STATE, to Use of GERMAN, v. TIMMONS et al.

(Court of Appeals of Maryland. Nov. 23, 1899.) LANDLORDS-DISTRESS-VOID WARRANT

CONSTABLE'S BOND-PARTIES.

1. A warrant to distrain for rent being void where it does not have the landlord's affidavit to the annexed account, as required by Code, art. 53, §§ 8, 9, sureties on the bond of the constable who acted thereon are not liable therefor; the bond being conditioned "that he shall well and faithfully execute the office of constable."

2. A constable's bond being given to the state, suit thereon must be in its name, for the use of the party injured.

Appeal from circuit court, Wicomico county; Charles F. Holland and Henry Lloyd, Assistant Judges.

Action by the state, to use of William L. German, against Ernest B. Timmons and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Argued before MCSHERRY, C. J., and PAGE, PEARCE, FOWLER, BOYD, BOND, BRISCOE, and SCHMUCKER, JJ.

Graham & Fitch, for appellant. Thos. F. J. Rider and George W. Bell, for appellees.

BOYD, J. This is an action on a constable's bond, and the declaration alleges that a distress warrant was directed to the constable against the plaintiff, William German, but in

the service and execution of it he "did illegally and wrongfully seize, sell, and dispose of certain goods and chattels of the plaintiff," etc. The suit seems to have been brought on the theory that the constable and his sureties were liable because the former made a sale of German's property, which was illegal by reason of the fact that he had not made a levy or inventory of the goods, or given notice to the tenant, as required by the statute of 2 Wm. & M. c. 5, in force in this state; but, under our view of the case, it will be unnecessary to discuss those omissions. In the course of the trial the defendants were required to produce the distress warrant under which the constable proceeded, and the plaintiff offered it in evidence. To the account annexed to it there is no affidavit. Section 8 of article 53 of the Code provides that "every landlord or his agent who may be authorized to distrain for rent due him shall previously to making such distress make oath before some justice of the peace * that his tenant is justly and bona fide indebted to him in the sum of - dollars and - cents," etc. Section 9 provides that "to every warrant authorizing any bailiff to levy a distress for rent there shall be prefixed or annexed the account of such landlord ** together

with an affidavit thereon in substance as required by the preceding section"; and section 16, that "every distress for rent which shall be made contrary to the provisions of this article and all sales made under and by virtue of such distress, shall be absolutely illegal and void." That this warrant was wholly lacking in one of the most important requirements of the statute (the affidavit), and therefore null and void, cannot be doubted. As was said in Cross v. Tome, 14 Md. 247, the object of these provisions is "to protect the tenant from onerous and oppressive proceedings by the landlord, and to prevent the levying of excessive distress, by requiring the sum claimed as actually due and in arrears to be clearly stated, and verified by oath." The warrant being null and void, it is manifest that the landlord would not have had any remedy against the constable's bond if he had failed or refused to act under it; and the question to be determined is whether the tenant can hold the sureties responsible for any acts done under it. There can be no doubt that a constable acting under a void warrant is a trespasser, and is not protected by reason of such a warrant being issued to him, if he enforces it; for, although the law does not hold an officer responsible, as a trespasser, for acting under a warrant that is merely defective or irregular, yet, when it is void on its face, it is as if no warrant had been issued to him. That being so, how can there be any recovery against the sureties of this constable for the alleged illegal acts done by him under this so-called warrant? The case of State v. Brown, 54 Md. 318, is conclusive of the question. It is there said: "The condition of the bond is 'that he shall well and faithfully exe

cute the office of constable.' By this contract the sureties guaranty the public against official delinquency on the part of the officer. For any breach of official duty his bond is responsible. This is the extent of liability assumed by the sureties. If he commits a wrong not in the discharge of his official duty, he is personally liable, but his sureties cannot be held responsible therefor. It is not within the terms of their contract." It was held in that case that an action could not be maintained against a constable and his sureties on his official bond for a trespass committed by him in taking the goods of a stranger on an execution issued against the property of another person, and it would seem to necessarily follow that they would not be responsible for acts done by him under a void warrant, it being equivalent to his acting without any warrant. In the doing of such act he is not to be regarded as an officer. The distinction is made between wrongful acts by an officer done virtute officii, and such as are done colore officii. In Alcock v. Andrews, 2 Esp. 542, Lord Kenyon said the former are such as "when a man doing an act within the limits of his official authority exercises that authority improperly, or abuses the discretion placed in him. The latter are where the act committed is of such a nature that the office gives him no authority to do it. In the doing of that act he is not to be considered as an officer." The case of Wilson v. Fowler, 88 Md. 601, 42 Atl. 201, is an illustration of the former, and that of Vanderworker v. Brown, supra, of the latter, and this case clearly comes within the latter class. Article 20, § 10, of the Code was referred to by the appellant as adding strength to his contention. That section requires the constable to serve and execute a warrant of distress within the limits of the district for which he is appointed, and provides that his bond shall be responsible for the due performance of his duties. It also authorizes him to execute such warrants in any part of his county, although it does not require him to execute them beyond his district, and concludes, "If he executes or undertakes to execute the same his bond shall be liable." But the liability of the bond is dependent upon his proceeding under "a warrant of distress," and the statute does not mean that the bond is responsible although there is no such warrant, or, what is the same thing, when it is absolutely void.

The court below instructed the jury "that under the pleadings in this cause there is no legally sufficient evidence to entitle the plaintiff to recover." The declaration, as given in the record, shows that William German sues the defendants, and it does not show that the state of Maryland sues for the use of William German. As the bond was given to the state of Maryland, the suit must be in its name, for the use of the party injured, and William German could not recover on a bond given to the state, in a suit brought in his name; but as the docket entries are, "State

of Maryland, Use of William German," it may be that this is simply a mistake in the record; and we therefore do not base our decision on that technical ground, but decide the case on its merits, and hold that the sureties of a constable thus acting under a void distress warrant are not responsible, as their contract was to protect the public against his official delinquency, and not against acts which he was not authorized to do as constable,-that is to say, to proceed by way of distress without a valid warrant. The remedy under such circumstances is against him individually as a tort feasor, or, when the facts justified it, against the landlord, or both. The judgment will be affirmed. Judgment affirmed; the costs to be paid by the appellant.

TUCKER v. STATE, to Use of JOHNSON

et al.

(Court of Appeals of Maryland. June 22, 1899.) For majority opinion, see 43 Atl. 778.

I agree

MCSHERRY, C. J. (dissenting). with every proposition, save one, announced in the very lucid and carefully prepared opinion written by Judge BOYD; and the proposition from which I am constrained to dissent is that which relates to the burden of proof. It is presented by the instructions numbered 1 and 12. The twelfth instruction lays down this doctrine, namely: If the jury find that the defendant "fired his pistol towards Uriah Johnson, * * * and shot and killed him, then the burden is upon the defendant to satisfy the jury by preponderating proof of any justification or legal excuse for said shooting." Thus, in explicit terms and unequivocally, the burden of proving the character of the act of killing is at the outset of the case put on the defendant, to exculpate himself, while, as I read the statute and understand the rules of evidence, that specific burden is placed on the plaintiff, to inculpate the defendant, or the latter cannot be made liable at all. The question is not whether the plaintiff has furnished or complied with the burden of proof, but whether he is required to furnish it. If he is, then the court ought to have told the jury, as matter of law, that the burden was on the plaintiff. It may be true, in point of fact, that the burden was gratified by competent evidence; but, none the less, the defendant was entitled to have the jury rightly instructed on the law as to where the burden rested. What quantum of evidence meets the burden is one thing; where the burden rests, is quite another thing. One (the preponderance of fact) is for the jury, the other (a rule of law) is for the court, to determine. If wrongly determined, it is reversible error. This is a new cause of action, unknown to the common law. 8 Am. & Eng. Enc. Law (2d Ed.) 858, citing Seward v. Vera Cruz, L. R. 10 App. Cas. 59. It is the creation of a statute (Code Pub. Gen. Laws, art. 67, § 1); and the conditions