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mitted that there is no possible injury. On the thing of the sort. Then it is put in another way contrary, it was contended that some possible in- in an extremely ingenious way - in Mr. Barber's jury might accrue. But when that contention is argument, to the effect that riparian proprietors in looked at closely, I think it vanishes. So long as a stream are a class of persons in the nature of a Free does that which he is doing there cannot be close borough, and that any one of them has a right possibly more injury than he is now inflicting, to object to the introduction into that class of persons which is nil. Of course, if he does something dif- who have not got property bordering on the stream. ferent, that is another matter. If by means of that | Well, where is the authoritory for that? It is an pipe he were to impede this stream, and not return ingenious suggestion, but no authority has been the water, there would be cause to complain. As cited in support of it, and I am very wary of extendlong as he is doing nothing more or less than he ing to the discussion of the rights of water any does now there is no possibility of injury at all. analogy drawn from close boroughs, or any thing of Then, failing that, a very ingenious attempt has the sort. I distrust the argument. It strikes me been made to support this case by trying to force as a false analogy altogether: It comes back howus to carry a step further the decisions as regards ever to this, that the right of these plaintiffs has non-riparian grants. I mean the Stockport Water- not been infringed, and that is the answer to the works Company v. Potter, 3 H. &. C. 300, and whole case." Ormerod v. Todmorden Joint Stock Mill Company, 11 Q. B. Div. 155. It is put in this way: It is said that a man who is not a ripariau proprietor has no right to take water from a stream at all, and that if I, a riparian proprietor, find anybody who is not a riparian proprietor taking water from the stream, I can maintain an action for an injunction, although I am not damnified. Well, that is a very startling proposition, and one would like to see some authority for it. It goes to an extent which is bordering on the absurd. According to that, if I am a riparian proprietor at the mouth of the Mississippi, and somebody a thousand miles up diverts the water, although not to my detriment, I can obtain an injunction. That is ridiculous. Let us see what the cases come to, and whether they afford any countenance for a proposition of that kind. When they are looked at they do not do any thing of the sort, The case of Stockport Waterworks Company v. Potter simply decides that the grantee of a riparian proprietor must take the water as he finds it. If it is dirty when it comes to the mouth of his pipe, he cannot complain of those who have dirtied it. He has not the rights of a riparian proprietor. The case does not decide that the licensee or grantee of a riparian proprietor cannot take some water from the stream if he hurts nobody. Such a proposition strikes me as monstrous. In Ormerod v. Todmorden Joint Stock Mill Compaay, the decision was that the grantee of a riparian proprietor could not take water and return it in a state so as to do injury to those below him. The argument there was that he could, provided he was doing that which was reasonable. The stress of the contention was that he had all the rights of a riparian proprietor. But neither of those cases decides that a licensee, or a grantee of a riparian proprietor, cannot take any water from the stream. They decided nothing of the sort, nor did they warrant any such inference. Yet unless we go that length, this argument in support of the plaintiff's case cannot be sustained. The argument cannot be maintained unless we say that a riparian proprietor cannot allow anybody to take any water out of a stream, whether anybody is injured or not. It seems to me it would be monstrous to say any

In McNamara v. Village of Clintonville, Wisconsin Supreme Court, February 3, 1885, 22 N. W. Rep. 472, an action for personal injuries caused by a fall on a defective sidewalk,it was held that no deduction should be made from the damages on account of the prolongation of the plaintiff's disability by reason of his predisposition to inflammatory_rheumatism. Cassoday, J., said, citing Oliver v. La Valle, 36 Wis. 592; Stewart v. Ripon, 38 id. 584; Brown v. Ry. Co., 54 id. 342; S. C., 41 Am. Rep. 41: "In one of these cases the plaintiff was allowed to recover increased damages by reason of an organic tendency to scrofula in his system and in each of the others by reason of a miscarriage in consequence of the injury. In the Brown case the distinction was made between actions for tort, where the wrong-doer is held liable for all injuries naturally resulting directly from the wrongful act, though unforeseen, and actions for the breach of contract, where the damages are limited to such as arise naturally from such breach of contract itself, or from such breach committed under circumstances in the contemplation of both parties at the time of the contract, as in Flick v. Wetherbee, 20 Wis. 392; Richardson v. Chynoweth, 26 id. 656; Candee v. Western Union T. Co., 34 id. 471; S, C., 17 Am. Rep. 452; Walsh v. Railway Co., 42 Wis. 23; Hill v. Chipman, 59id. 218; Hadley v. Baxendale, 9 Exch. 341; Hobbs v. London, etc., R. Co., L. R., 10 Q. B. 111; Horne v. Midland Ry. Co., L. R., 8 C. P. 131; Jones v. George, 48 Am. Rep. 280; Bagley v. Cleveland, etc., R. Co., 30 Alb. Law. J. 490. The rule applicable to contracts thus quoted is taken from the opinion of the court in the recent case of Hamilton v. Magill, L. R. 12 Ir. 202, and is there said to be a more accurate statement than is found in Hadley v. Baxendale. To the same effect are the notes to that case in Sherley's Lead. Cas. 227-230, and Harvey v. Connecticut, etc., R. Co., 124 Mass. 425; S. C., 26 Am. Rep. 673. See also the late case of McMahon v. Field, L. R., 7 Q. B. Div. 595, where the plaintiff recovered on contract for the injury to his horses, who caught cold from unnecessary exposure to the weather. In that case Hobbs v. Railway, is severely criticised and narrowly

limited, if not entirely overruled. The distinction taken in the Brown case has been recognized in several of the more recent cases, and in some of them that decision is expressly sanctioned. Baltimore, etc., R. Co. v. Kemp, 30 Alb. Law J. 92; S. C., 61 Md. 74, 619; Cincinnati, etc., R. Co. v. Eaton, 94 Ind. 474; S. C., 48 Am. Rep. 179; Ehrgott v. Mayor, 96 N. Y. 281; S. C., 48 Am. Rep. 622; Tice v. Munn, 94 N. Y. 621; Murdock v. Boston, etc., R. Co., 133 Mass. 15; S. C., 43 Am. Rep. 480; Beauchamp v. Saginaw M. Co., 50 (Mich. 163; S. C., 45 Am. Rep. 30; McMahon v. Field, L. R., 7 Q. B. Div. 591; and see Mr. Irving Browne's notes, 47 Am. Rep. 381, 387; 41 Am Rep. 53, 58. See also as bearing upon the question, Pittsburg, etc., R. Co. v. Staley, 1 Am. Law J.(Ohio) 136; S. C., 30 Alb. Law J. 110; Lewis v. Flint & P. M. Ry. Co., 19 N. W. Rep. 744. In actions on contracts of carriage it has often been held that a corporation or party could not by con. tract wholly exempt itself from all liability for injury inflicted by its own negligence. Richardson v. Chicago & N. W. Ry. Co., 56 Wis. 347; Canfield v. Baltimore, etc., R. Co., 45 Am. Rep. 268; Sager v. Portsmouth, etc., R. Co, 50 Am. Dec. 659. In such cases the damages recoverable cannot be within the contemplation of the contract; for they are recovered in spite of it. In McMahon v. Field, one of the judges went so far as to say that 'the parties never contemplated a breach, and the rule should rather be that the damage recoverable is such as is the natural and probable result of the breach of contract.' To the same effect is Ehrgott v. Mayor, 96 N.Y. 280. In this New York case the court say: 'When a party commits a tort resulting in a personal injury, he cannot foresee or contemplate the consequences of his tortious act. * ** A city may leave a street out of repair, and no one can anticipate the possible accidents which may happen or the injuries which may be caused. * * * The true rule, broadly stated, is that a wrong-doer is liable for the damages which he causes by his misconduct.' 96 N. Y. 281; S. C., 43 Am. Rep. 480."

RULES AS TO THE PRIVILEGES OF WIT

NESSES. IV.

(C.)

1. M., a stockbroker, being interrogated as to certain transactions between himself and S., refuses to answer on the ground that it might subject him to the penalties of the stock-jobbing act. M. cannot be compelled to answer. (1)

RULE. But a witness may be compelled to give evidence although it may degrade or disgrace him (2), subject to the former rule as to crimes and penalties;

(1) Short v. Mercier, 3 Mac. & G. 205 (1851); and see Cloyes v. Thayer, 3 Hill, 564 (1842); Poindexter v. Davis, 6 Gratt. 481 (1850).

(2, Kirschner v. State, 9 Wend. 140 (1859). The earlier English cases are somewhat contradictory. In R. v. Pitcher, 1 C. & P. 85 (1823); 11 Eng. C. L., a question whether any thing

and provided it be relevant to the case (3) (b), or although it may render him liable to a civil action (4) (C).

1. In the course of a trial a witness is asked if he ever committed adultery with a certain woman. improper had passed between a witness and the prisoner was not allowed to be put to the former. In a note to this case it is said: "The law as to what questions may be asked in cross-examination, the answers to which have a direct tendency to degrade the witness, is very obscurely laid down in the books; and if they are permitted to be asked, there is equal obscurity whether the witness shall be excused from answering. As to whether a witness is compellable to answer degrading questions, in the case of Cooke, and in the case of Sir John Freind for high treason, Treby, C. J., laid down that a witness is not bound to answer questions "that will subject him to penalties or infamy." In Layer's case the judges appear to be of the same opinion. All these cases are reported at large in the State trials. As to what questions will be allowed to be 'put, in the case of Maelride v. Maelride, 4 Esp. Rep., which was an action of assumpsit, a female, who had proved the plaintiff's demand, was cross-examined as to whether she was not in keeping of the plaintiff, and Lord Alvanley overruled the question, on the ground that a witness cannot be asked questions to degrade his character; and in Rex v. Lewis, 4 Esp. Rep., which was an indictment for an assault, Lord Ellenborough would not permit the prosecutor to be asked whether he had been in the house of correction. However, on the other hand, there are the cases of the King v. E. Edwards, 4 Term Rep. 440, and that of Doctor Watson, tried at the bar for high treason. The first was an examination of persons who were tendered as bail for the prisoner, who was charged with a larceny. The court. allowed one of them to be asked if he had ever stood in the pillory for perjury; and in the latter case Mr. Wetherell, for the prisoner, asked a witness named Cartles, all sorts of degrading questions. In practice, the asking of questions to degrade the witness is regulated by the discretion of the learned judge in each particular case; for in the case of Rex v. John Barnard (infra), an accomplice was asked (unchecked by the learned baron) whether he had ever been charged with felony? How many times? Whether he had been charged with uttering counterfeit coin? With stealing clothes? With stealing fowls? And whether he had not been in gaol at Gloucester? And flogged at Wingate? To each of which questions the witness very reluctantly gave a distinct answer, admitting nearly the whole of them. This man, it may be said, was an accomplice, and therefore was open to attack. But in Rex v. James Gilroy and Dennis English, Stafford Lent. Ass., 1823, before Bosanquet, Serjt., the counsel for the prisoners, who were indicted for highway robbery, was allowed to ask a witness, who stated that he had been a constable, whether he had not been turned out of office for misconduct toward a prisoner? Which he, very much against his inclination, admitted. A question which, if answered either way, will benefit your client, is always a question worth putting. The question in the principal case appears to be of this kind. It was "whether at the house any thing improper passed between him and the prisoner?" If he said "yes," it degraded him with the jury; if he said "no," nobody who heard the case would believe it; and it would shake his general credibility. If overruled, it induced the jury to believe that such was the fact, and that the prosecutor, if allowed, would have admitted it. In some cases it is held that it is in the discretion of the court to allow a degrading question to be put to a witness. State v.Belausky, 3 Minn. 247 (1859). In others that such questions need not be answered by the witness. Vaughan v. Perrine, 3 N. J. (L.) 534 (1811); Respublica v. Gibbs, 3 Yeates, 429 (1802); Galbreath v. Eichelberger, id. 515 (1803). By statute in Iowa a witness is not compelled to answer a question which will expose him to "public ignominy." This term is construed to mean public disgrace and dishonor, and under this statute it has been held that a woman in an action for seduction is not compellable to answer whether she has had intercourse with men other than the defendant. Brown v. Kingsley,38 Iowa,221(1874). (8) Howel v. Com., 5 Gratt. 664 (1848); State v. Patterson, 2 Ired (L.), 346 (1842); Sodusky v. McGee, 5 J. J. Marsh. 621 (1831); Wroe v. State, 20 Ohio St. 470 (1870); Marx v. Bell, 48 Ala. 497 (1872); Smith v. Castles, 1 Gray, 108) (1854); Hill v. State, 4 Ind. 112 (1853); State v. Staples, 47 N. H. 113 (1866); Harper v. Indianapolis, etc., R. Co., 47 Mo. 580 (1871); Taylor v. Jennings, 7 Robt. (N. Y.) 58 (1867).

(4) Judge of Probate v. (Green, 1 How. (Miss.) 148.(1834); Hays v. Richardson, 1 G. & J. 366 (1829); Taney v. Kemp, 4 H. & J. 348 (1818); Harper v. Burrow, 6 Ired. (L.) 30 (1845); Jones v. Lanier, 2 Dev. 481; Conover v. Bell, 6 T.B. Monr.157 (1827).

If adultery be a crime in that jurisdiction he is not compelled to answer; if it be not, he must answer (5). | 2. In an action of breach of promise of marriage by A. against B., C., a witness, is asked if he had ever taken improper liberties with A. He declines to answer on the ground that an answer might disgrace him. This is no excuse (6).

3. In a prosecution against K. for selling liquor without a license, a witness is asked if he had bought spirituous liquors of K. The witness cannot refuse to answer (7).

4. A witness is asked on cross-examination whether he has not been in the penitentiary, and for how long. He cannot refuse to answer (8).

5. A witness is asked whether he is not in the habit of drinking intoxicants. The question is proper (9)..

6. A witness is asked whether he saw a certain person tarred and feathered on a certain night. If the witness was one of the trespassers he is not liable to indictment, for the offense is barred by limitation. Nevertheless, he refuses to answer on the ground that an answer might disgrace him. His refusal cannot be sustained (10).

*

In case 3, Shaw, C. J., said: "What crime would the answer of the witness tend to fix on him? Not drunkenness, for non constat because he buys, he will drink to excess. The fact of buying is not made criminal by the statute. * * Suppose a murder, arson or burglary committed in a house of ill-fame, could no witness be asked respecting it, because it would lead to the question whether he was there for an improper purpose?"

In case 6 it was said: "The authorities all agree that where the question is asked respecting a matter collateral to the issue, or with a view to impair the credibility of the witness, he is not bound to give testimony that will directly tend to disgrace him. There is however much conflict of opinion on the point whether he is bound to testify concerning a matter material to the issue. Such being the case, we are at liberty to adopt the rule that may best promote the rights of parties, and subserve the ends of justice. The views of Mr. Greenleaf on this subject are so forcible and sound as to justify a quotation at some length. He says: 'On this point there has been a great diversity of opinion, and the law still remains not 'properly settled by authorities. But the conflict of opinions may be somewhat reconciled by a distinction, which has been very properly taken, between cases where the testimony is relevant and material to the issue and cases where the question is not strictly relevant, but is collateral, and is asked only under the latitute allowed in a cross-examination. In the former case there seems great absurdity in ex

(5) R. v. Castro or Orton, Trial, vol. 2 (1875); and see Tillson v. Bornley, 8 Mo. 163 (1831).

(6) Clark v. Reese, 35 Cal. 89 (1868).

(7) Com. v. Kimball, 24 Pick. 366 (1837).

(8) Real v. People, 42 N. Y. 280 (1870).
(9) Campbell v. State, 23 Ala. 82 (1853).
(10) Weldon v. Burch, 12 Ill. 375 (1851).

cluding the testimony of a witness, merely because it will tend to disgrace himself, when others have a direct interest in that testimony, and it is essential to the establishment of their rights of property, of liberty, or even of life, or to the course of public justice. Upon such a rule, one who had been convicted and punished for an offense, when called as a witness against an accomplice, would be excused from testifying in any of the transactions in which he had participated with the accused, and thus the guilty might escape, and accordingly the better opinion seems to be that where the transaction forms any part of the issue to be tried the witness will be obliged to give evidence, however strongly it may reflect on his character.' 1 Greenl. on Ev., § 454 (4). We have no hesitation in adopting the rule thus laid down. A party ought not to be deprived of the benefit of testimony material to the issue of the case, nor ought the course of public justice to be defeated, merely because a witness may subject himself to disgrace or reproach. The privilege of the witness ought not to be considered as superior to the rights of individuals, or the demands of public justice. He is required to speak of a transaction in which he voluntarily participated. If he sustains a loss of reputation in consequence of his disclosures, it is but the result of his own wrong. In the present case the testimony sought was clearly material to the issue on trial. In either point of view the witnesses were bound to testify, and the court erred in excusing them."

1. On a prosecution for performing an abortion on B. in April, 1846, B. having testified to having had sexual intercourse with one C. before that time, is asked whether she had also before that had sexual intercourse with other persons. The question is irrelevant, and B. need not answer (11).

2. In the same case B. is asked whether she did not have a venreal disease in 1835. The question is irrelevant, and B. need not answer (12).

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3. A witness who is called as an expert as to alterations in handwriting is asked as to his occupation before he came to the country some years before. He refuses to answer because an answer might degrade him. His refusal is proper (13). When," it was said in case 1, "a party intends to coerce an answer tending to degrade a witness, he is bound to show affirmatively that the question is relevant; there is nothing to show such relevancy in this case, and the court was right in refusing to compel the witness to answer the question."

In case 2 it was said: "As the question put to the witness did not relate to any matter of fact in issue, or to any matter contained in his direct testimony, and as a truthful answer to it would tend to degrade him, he was not bound to answer."

1. In a civil action a witness objects to answering a question on the ground that it may revive an old debt against him. This is no excuse (14).

(11) People v. Lobman, 2 Barb. 216 (1848).
(12) Id.

(13) Re Lewis, 39 How. Pr. 155 (1869).
(14) Alexander v. Knox, 7 Ala. 504 (1845).

"It is a matter of singularity," said Goldthwaite, J., in case 1, "that the question whether a witness objecting to answer could excuse himself on the ground that by answering he would subject himself to a civil action or pecuniary loss, was never solemnly decided in England until the precise question was put to the judges, upon the impeachment of Lord Melville in 1806. Four of the judges there gave opinions that a witness, under such circumstances, might excuse himself, and ought not to be compelled to answer; the other eight judges held the contrary opinion. Lord Eldon and Lord Ellenborough, among the latter, seem to consider the question even as somewhat offensive, for the former observes, in no measured strain, "that although his experience was equal, not only to any individual judge on the bench, but to all the judges, with their collective practice, yet he never knew a single objection to have been taken to an interrogatory proposed, because the reply to it would render the witness responsible to a civil suit." Lord Ellenborough, too, insisted that during the entire course of a life devoted to the practice of the law, and to the duties of the bench, he did not remember a single instance where the objection had been taken. Mr. Justice Chambre puts the matter thus: "The public must not call on a witness to give evidence, or do justice between A. and B., because such evidence might prevent the witness from acting unjustly by C. or D., to whom the witness might wish to act unjustly, or from whom he should wish to withhold a just debt. (See opinions of the judges, 1 Hall's Am. Law Jour. 225.) Owing to the difference of opinion between the judges, a declaratory act of Parliament was passed. In this country the rule has been settled in most of the States, in conformity with the opinion of the majority of the English judges. (See cases collected in Cowen & Hill's Notes; 739.) As a rule of the common law, it has never, we think, admitted of serious question that a witness is bound to answer any pertinent and material interrogatory, although his answer may have the effect to render him liable to a civil suit. That there may be exceptions to this, as a general rule, is quite possible, but the case on the record certainly is not entitled to be so considered."

JOHN D. LAWSON.

EARL, J. On the 17th day of May, 1880, and for a long time prior thereto, the plaintiff owned a certain lot of land numbered 104 in the county of Warren, in this State, and the defendant owned lot 116, situated north of 104, and lot 105, situated west of 104. The de

fendant had leased lot 105 to Charles Hammond to work upon shares, under an agreement by which each party was to furnish half the seed and have half the crops, and the defendant was to pay Hammond $10 per acre for clearing so much of the lot as he should choose to clear. On Thursday, the 13th day of May, Hammond, for the purpose of clearing up a portion of his lot, set fire to some wood and brush thereon. That fire burned moderately, and smouldered Friday, Saturday, Sunday and until Monday, when the wind begau to blow, and the fire started up and passed out of that lot upon lot 116 and 104. On Monday, the 17th, in the forenoon, the defendant, for the purpose of clearing up a portion of lot 116, set a fire upon that lot, and either at the time he set fire or shortly after, the wind began to blow a sharp gale. One or both of the fires thus set upon these two lots passed lot 104 and set fire to and burned down a house and barn upon that lot belonging to the plaintiff; and this action was brought by him to recover his damages thus sustained. [Omitting minor matters.]

There was evidence tending to show that the fire was set upon lot 116 by the defendant at a time when the land was very dry, and when the wind was blowing a strong gale in the direction of the plaintiff's lot. The defendant's witnesses gave evidence as to the condition of the land, the state of the weather, aud of the wind and various other circumstances surrounding the fire. As a witness in his own behalf he testified that he was a farmer, and that he had cleared and seen others clear land, and then he was asked this question: "What do you say as to whether or not as to that time the fires were set there at that place, it was a proper time in your judgment for burning log heaps or a fallow that had been burned over?" The question was objected to on the part of the plaintiff as calling for a conclusion of the witness on a subject not proper to give an opinion; that the witness could only state facts, and the jury must draw the conclusions. The trial judge remarked that the evidence would be received from the principle that the witness was shown to have superior knowledge upon that subject. The plaintiff excepted to the ruling, and the witness answered, "I thought it was." Another witness, who was shown to have had experience in clearing land, was asked this question: "How was it at that time as to being dry enough for a proper time to burn a fallow?" which was objected to on the part of the plaintiff as calling for a conclusion. The objection was overruled, and the witness all. swered: "It was dry enough." Another witness, who was also shown to have had experience in clearing land, was asked this question: "What do you say as to whether it was a proper time or not to burn a fallow?" to which there was the same objection and rul

EVIDENCE-OPINION OF EXPERTS -- WHEN IN- ing, and he answered: "I should say it was a proper

COMPETENT.

NEW YORK COURT OF APPEALS, DEC. 16, 1884.

FERGUSON v. HUBBELL.*

The proper time to burn a fallow is not a proper subject of expert opinion.

time to burn it, and advised him that way that day."

We think there was some evidence from which a jury could have found that the fire which destroyed plaintiff's buildings came from lot 116, and the jury may have found from the answers to these questions that the fire was set at a proper time, and thus may have been influenced to find their verdict in favor of

APPEAL from judgment of the General Term in the defendant.

the Third Department. The opinion states the points.

N. P. Hinman, for appellant.

S. Brown, for respondent.

*To appear in 97 N. Y.

It is contended on behalf of the plaintiff that the questions objected to were improper, and that the subject of the inquiry was not one proper for expert evidence. The questions related to a vital point in the case. The principal claim on the part of the plaintiff was that in consequence of the wind and the dryness

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of the ground, and the wood, brush and timber, it was an improper time to set fire; and whether it was or not, was the main question to be determined by the jury if they reached the conclusion that the fire came from lot 116. These witnesses were therefore asked their opinions upon a controlling issue which was to be determined by the jury. In answering the questions they did not testify to facts, and they did not tell what they knew as matter of knowledge. They simply expressed opinions which were based upon the facts ns they existed. The general rule of law is that witnesses must state facts within their knowledge, and not give their opinions or their inferences.

To this rule there are some exceptions, among which is expert evidence. Witnesses who are skilled in any science, art, trade or occupation may not only testify to facts, but are sometimes permitted to give their opinions as experts. This is permitted because such witnesses are supposed from their experience and study to have peculiar knowledge upon the subject of inquiry which jurors generally have not, and are thus supposed to be more capable of drawing conclusions from facts, and to base opinions upon them, than jurors generally are presumed to be. Opinions are also allowed in some cases where from the nature of the matter under investigation, the facts cannot be adequately placed before the jury so as to impress their minds as they impress the minds of a competent, skilled observer, and where the facts cannot be stated or described in such language as will enable persons, not eye witnesses, to form an accurate judgment in regard to them, and no better evidence than such opinions is attainable. But the opinions of experts cannot be received where the inquiry is into a subject the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.

It is not sufficient to warrant the introduction of expert evidence that the witness may know more of the subject of inquiry, and may better comprehend and appreciate it than the jury; but to warrant its introduction the subject of the inquiry must be one relating to some trade, profession, science or art in which persons instructed therein, by study or experience, may be supposed to have more skill and knowledge than jurors of average intelligence may be presumed generally to have. The jurors may have less skill and experience than the witnesses, and yet have enough to draw their own conclusions and do justice between the parties. Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence, it is not needed that the jurors should be able to see the facts as they appear to eye-witnesses, or to be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be presented in such a manner that jurors of ordidary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them, and comprehend them sufficiently for the ordinary administration of justice.

A long

ions of hired and generally biased experts. time ago in Tracy Peerage, 10 Cl. & Fin. 154, 191, Lord Campbell said that skilled witnesses came with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence. Without indorsing this strong lauguage, which is however countenanced by the utterance of other judges and of some text-writers, and believing that opinion evidence is in many cases absolutely essential in the administration of justice, yet we think it should not be much encouraged and should be received only in cases of necessity. Better results will be reached by taking the impartial, unbiased judgments of twelve jurors of common sense and common experience thau cau be obtained by taking the opinions of experts, if not generally hired, at least friendly, whose opinions cannot fail generally to be warped by a desire to promote the cause in which they are enlisted.

From a careful examination of many cases in this and other States, we are satisfied that the questions objected to in this case should have been exoluded.

In Fraser v. Tupper, 29 Vt. 409, in an action like this, a question entirely similar to this was held to be inadmissible. There the defendant offered to prove by farmers who were acquainted with the clearing of land by burning the same, and who were upon the land the day the fires were set, and who described to the jury as well as they could the position of the fires and the force and direction of the wind; that in their opinions it was a suitable and proper and safe day for setting the piles on fire with reference to the position of the piles in respect to the plaintiff's coal, and the force and direction of the wind. To this evidence the plaintiff objected, and it was excluded by the court, and to its exclusion the defendant excepted, and it was held that the ruling was proper. In the opinion of the court it is said: "There could be no difficulty in this case in the witnesses stating to the jury the position of the fires which were set by the defendant, their number and magnitude, the direction and course of the wind, the position, distance and character of plaintiff's property, and its exposure to injury from that source. The jurors, upon the question whether the defendant exercised proper care, could form as definite opinion from the facts stated by the witnesses as the witnesses themselves. The subject-matter is not one of science or skill, but is susceptible of direct proof, and in most cases the triers themselves are qualified from experience in the ordinary affairs of life, duly to appreciate the material facts when found. If there is any materiality attached to the force of the wind on that day we do not see any difficulty in conveying a true idea of it, sufficient at least for all practical purposes.

Iu Higgins v. Dewey, 107 Mass. 494, the action was also like this, and the defendant offered to prove by a surveyor and civil engineer of many years' experience in clearing land by fire, who had observed the effects of wind on fires in different localities, and had been upon the land where the defendant set his fire and made a plan of it, and was acquainted with the surrounding country, that there was no probability that a fire set under the circumstances in the case as described The rules admitting the opinions of experts should by the witnesses would be communicated to the not be unnecessarily extended. Experience has showu plaintiff's land; but the judge excluded the evidence, that it is much safer to confine the testimony of wit- and his ruling was held to be proper on the ground nesses to facts in all cases where that is practicable, that the evidence offered related to a subject within and leave the jury to exercise their judgment and ex- the common knowledge of the jury. S.C.,9 Am. Rep.63. perience upon the facts proved. Where witnesses tes- In Luce v. Dorchester Mutual Fire Ins. Co., 105 tify to facts they may be specifically contradicted, and Mass. 297, the action was to recover for a loss on a polif they testify falsely are liable to punishment for per- icy of insurance against fire upon a dwelling house jury. But they may give false opinions without the which the plaintiff had left unoccupied at the time of fear of punishment. It is generally safer to the loss, and for some time before; and the opinions take the judgments of unskilled jurors than the opin- of witnesses that leaving a dwelling house unoccupied

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