M'Kee v. Nelson

4 Cow. 355

• Court: New York Supreme Court
• Decided: May 15, 1825
• Status: Published

Opinion

Curia.

We think the Judge’s decision founded in good sense, and-in the nature of tilings. We do not see how the various facts upon which an opinion of the plaintiff’s attach- • ment 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 nameless things, indicating the existence and degree of the tender passion, which language cannot specify. The opinion 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. Were there nothing more in the case, therefore, vve think there is no ground for the bill.

But we are not left to this ground; The objection came too late. It was certainly waived. The same opinion had been repeatedly expressed, in the same manner, in the course of the trial, by different witnesses, without any sort of objection. Just as the trial is drawing to a close, on these questions being put, the objection is made for the first time. The answer would have been a mere iteration of what had passed without objection, at intervals, during the whole previous course of the trial. At least, under the circumstances, it was altogether immaterial. It could not change the complexion of the case.

"The answer of the father aS to particular facts was also clearly inadmissible. Want of chastity, or immoral conduct, may be shown; but it is matter of proof. . The' effect of allowing the father to answer as to particulars might have been, by a side wind, to get that in which was untrue, resting merely in conjecture; and thus to work a prejudice in the mind of the jury. This cannot be tolerated. A new trial must be denied.

Rule accordingly.