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his election and qualification as a representative be determined, in this proceeding, to which he is not a party. The appropriate form of trying his right to exercise the office of a justice is by information in behalf of the Commonwealth, or perhaps by action against him by the person injured." Sheehan's case, 122 Mass. 445, 446.

"The acts of an officer, thus having color of title, * * * are valid in respect to the rights of third persons. *** The adoption of such a rule is necessary to prevent a failure of justice, and the great public mischief which might otherwise be justly apprehended. Besides the officer's title to his office ought not to be determined in a collateral way." Bucknam v. Ruggles, 15 Mass. 180, 182.

"It is difficult to find a stronger illustration of the application of this rule than is furnished by the case of Fowler v. Bebee, 9 Mass. 231, where it was held that the acts of an officer, appointed without any authority of law, could not be invalidated or inquired into in a suit between third persons. *** The cases all recognize the rule as being founded on public policy, which does not allow the title of a person to an office to be inquired into and determined in proceedings to which he is not a party; nor the rights of third persons to be affected by illegalities or informalities in the appointment or election of public officers who are acting under color of title." Fitchburg R. Co. v. Grand Junction R. Co., 1 Allen, 552, 558.

*

"No principle is better settled than that the acts of such persons are valid when they concern the public, or the rights of third persons. * * It would be impossible to maintain the supremacy of the laws if individuals were at liberty, in this collateral manner, to question the authority of those who in fact hold public offices under color of legal title." People v. White, 24 Wend. 520, 525.

"In order to secure the peaceful and orderly government of the community, the rule has been established that the right of a de facto public officer to exercise the powers of his office cannot be investigated in a collaterel proceeding. It must be determined once for all times, in a direct proceeding to oust the officer." Moraw. Corp. (2d ed.), § 640.

In the reign of Henry VI, "the house of York asserted their dormant title; and after imbruing the kingdom in blood and confusion for seven years together, at last established it in the person of Edward IV. At his accession to the throne, after a breach of the succession that continued for three descents and above three score years, the distinction of a king de jure and a king de facto began to be first taken, in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom, by confirming all honors conferred and all acts done by those who were now called the usurpers, not tending to the disherison of the rightful heir. In statute 1 Edw. IV, ch. 1, the three Henrys are styled 'late kings of England, successively in dede, and not of ryght.' And in all the charters which I have met with of King Edward, whenever he has occasion to speak of any of the line of Lancaster, he calls them 'nuper defacto, et non de jure, reges Angliæ.'" 1 Bl. Com. 204.

"When an unjust conqueror, or any other usurper, having invaded the kingdom, on the people submitting to him, and by a voluntary homage acknowledging him for their sovereign, he is in possession of their regality. Other nations, as having no right to concern themselves in the domestic affairs of this nation, or to interfere in its government, are to abide by its judgment, and conform to the possession; therefore they may treat of a peace with the usurper, and conclude it with him. Herein they do not injure the right of the lawful sovereignty. It is not their concern to exam

ine and judge of this right. They leave it as it is, and in their transactions with this kingdom attach them. selves solely to the possession, according to their own right, and that of the State whose sovereignty is con tested." 4 Vatt. Law Nat., § 14.

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"A new State springing into existence does not require the recognition of other States to confirm its internal sovereignty. The existence of the State de facto is sufficient, in this respect, to establish its sovereignty de jure. It is a State because it exists. * *The external sovereignty of any State, on the other hand, may require recognition by other States in order to render it perfect and complete. * * * Until the revolution is consummated, while the civil war, involving a contest for the government continues, other States may remain indifferent spectators of the controversy, still continuing to treat the ancient government as sovereign, and the government de facto as a society entitled to the rights of war against its enemy." Wheat. Int. Law (8th ed.), §§ 21, 23, 27, note; Kent Com. 24, 25, 167; Kennet v. Chambers, 14 How. 38, 47; Prize cases, 2 Black, 635.

In Luther v. Borden, 7 How. 1, the plaintiff offered to prove that the Dow government was lawfully established in Rhode Island in May, 1842, and was the State government de jure until May, 1843; and he contended that the charter government, which existed de facto, having no legal existence during that year, could not authorize the defendants to break and enter the plaintiff's house in order to arrest him. "If this court,' says Taney, C. J. (p. 38), “is authorized to enter upon this inquiry, as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, if it had been annulled by the adoption of the opposing government, then the laws passed by its Legislature during that time were nullities, its taxes wrong. fully collected, its salaries and compensation to its officers illegally paid, its public accounts improperly settled, and the judgments and sentences of its courts, in civil and criminal cases, null and void, and the officers who carried their decisions into operation, answerable as trespassers, if not in some cases as criminals."

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"Sir Matthew Hale," says Woodbury, J. (p. 57), "after much hesitation, at last consented to preside on the bench in administering the laws between private parties, under a government established, and recognized by other governments, and in full possession de facto of the records and power of the kingdom, but without feeling satisfied, on inquiry, as a judicial question into its legal rights. Cromwell had 'gotten possession of the government,' and expressed a willingness to rule according to the laws of the land.' * * And this, Hale thought, justified him in acting as judge. Hale Hist. Com. Law, 14, Preface. For a like reason, though the power of Cromwell was soon overturned, and Charles the Second restored, the judicial decisions under the former remained unmolested on this account, and the judiciary went on as before, still looking only to the de facto government for the time being. Grotius virtually holds the same doctrine. Book 1, ch. 4, § 20, and 2, ch. 13, § 11. Such was the case likewise over most of this country, after the declaration of independence, till the acknowledg ment of it by England in 1783. 3 Story Com. Const., SS 214, 215. And such is believed to have been the course in France under all her dynasties and regimes during the last half century."

"The Legislature of Texas," in 1862, "constituted one of the departments of a State government established in hostility to the Constitution of the United States. It cannot be regarded therefore in the courts of the United States as a lawful legislature, or its acts as lawful acts. And yet it is a historical fact that

the government of Texas, then in full control of the State, was its only actual government; and certainly if Texas had been a separate State, and not one of the United States, the new government, having displaced the regular authority, and having established itself in the customary seats of power, and in the exercise of the ordinary functions of administration, would have constituted, in the strictest sense of the words, a de facto government; and its acts, during the period of its existence as such, would be effectual, and in almost all respects valid; and to some extent this is true of the actual government of Texas, though unlawful and revolutionary as to the United States. It is not necessary to attempt any exact definitions within which the acts of such a State government must be treated as valid or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens-such for example, as acts sanctioning and protecting marriage and the domestic relations; governing the course of descents; regulating the conveyance and transfer of property, real and personal; and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid, when proceeding from an actual, though unlawful government, and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must in general be regarded as invalid and void." Texas v. White, 7 Wall. 700, 732.

In Despatch Line v. Bellamy Co., 12 N. H. 205, 210, 223, one ground on which the plaintiff contested the validity of a mortgage executed by Palmer (who was a director, and assumed to act as the agent of the defendant company) was that the election of Emery as a director was illegal because he was not a stockholder. The mortgage was made in pursuance of what purported to be a record of a vote of the directors passed by Palmer and Emery when they met on their private business. Palmer told Emery he wanted to make a mortgage of the company's property Emery replied that he could not act, never having had any stock; but Palmer said he was chosen a director. Emery at last said he had "no objection to look on;" and at Palmer's request, he wrote a form for a vote authorizing the mortgage. The court say, if the election of Emery "had been by a municipal corporation, coming into office under color of an election, he would have been an officer de facto, and his acts valid so far as third persons had an interest in them; and the regu larity of the election could not in such case be inquired into, except in some proceeding to which he was a party. Tucker v. Aiken, 7 N. H. 131, 135, and cases cited. As a director of a private corporation, although called in common parlance an officer of the corporation he is perhaps not technically to be considered an officer de facto. He is one of the agents elected by a vote of the corporation for the management of its affairs, or some of them. But a similar rule must prevail in relation to the effect of his acts, so far as the corporation have held him out as an agent, and third persons have confided in his acts done within the scope of the authority he appeared to possess." Moraw. Corp. (2d ed.), §§ 543a, 637-640.

Irregular corporate "elections are voidable only, and not void. These directors at most are irregularly chosen. They are in under color of an election, and their acts, so long as they retain their offices, are binding. The legality of their election cannot be brought collaterally in question, but proceedings should be instituted for the express purpose of trying it, and of evicting them." Hughes v. Parker, 20 N. H. 58, 72; Ins. Co. v. Moore, 55 id. 48.

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There may be de facto corporations (Moraw. Corp., $$ 696a, 710, 711, 745-778, 1002, 1008, 1015, 1030), de facto schools and school-masters (Kidder v. Chellis, 59 N. H. 473, 475, 476), and de facto school-houses. Chapin v. School-district, 30 N. H. 25, 31 A deed without a seal may be color of title. Farrar v. Fassenden, 39 N. H. 268, 280.

"The selectmen who commit the list of taxes to the collector may have, it is true, more knowledge of the circumstances under which he was chosen and came into office than individuals ordinarily have respecting the particular circumstances attending the appointment of a sheriff or his deputy; but still it may impose quite as great a hardship to require them to judge, at their peril of the legal validity of those proceedings, and make them answerable personally for irregularities which did not originate with them, which they could not control, and respecting the legality of which they have but inadequate means of forming an opinion. If the town proceeds to elect, their duty requires them to commit the list of taxes to the collector chosen, if the election be legal; and they have not the power to try the legality of the election, and to enter a judgment of ouster. If they are required to judge of the validity of the proceedings, they must do so without trial, and at their own peril if they mistake. Tucker v. Aiken, 7 N. H. 113, 132.

In that case the election of Stowell as tax collector of Derry was held to be illegal "because the office of collector was set up at auction, and the lowest bidder elected." If the selectmen could have legally appointed a collector on the ground that the election being illegal, the office was vacant (act Feb. 8, 1791, § 8), they were not bound, of their own motion, to make an appointment. They could not judicially try, and were not bound to decide without a trial, the question of Stowell's title. Their right to treat him as a collector de facto, and to rely upon his colorable title in committing to him the list of taxes, was not derived from their inadequate means of forming an opinion of the legality of the election. Evidence that they were learned in the law, were aware of all the facts, and knew his election was illegal, would have been inadmissible. If the judges who decided that case in 1834 had been selectmen of Derry the next year, had been present when the office of collector was again sold at auction, and when the lowest bidder was again illegally elected, they could have legally employed him as collector.

In relation to a vast number of official acts in the Confederate States, the de facto rule does not discriminate in favor of those who thought the government of those States was legally established, or against those who entertained the contrary opinion. If A. and B. claimed the office of register of deeds, B. having color of title, and both having knowledge that the legal title is in A., B.'s recording a deed in which A. is grantee is not invalidated by that knowledge, or by A.'s prosecution of a suit against B. for the office when he employed him to make the record. A. is protected against a collateral contestation of the colorable title which he directly and successfully attacks by process of law. In such a case the safety of every grantee does not depend upon his belief in the legality of the register's election, or upon the register's ignorance of an electoral matter of law or fact, or upon an error in the register's opinion on such a subject.

The assessment and collection of an illegal tax may be an official duty. School-district v. Carr, 63 N. H. 201, 205; Gove v. Newton, 58 id. 359; Bell v. R. Co., 4 Wall. 598. The safety of society requires the police to act with alacrity upon a merely apparent state of things. O'Connor v. Bucklin, 59 N. H. 589, 591. The necessity of safe reliance on what is apparent, though

unreal, authorizes an unofficial use of force upon an appearance of a danger that does not exist. Aldrich v. Wright, 53 N. H. 398.

While generalization is dangerous, the judicial acceptance of the application that has been made of a broad principle to the narrow facts of particular cases, as a full exposition of it may be a repeal of a large part of a salutary provision of law, and an enactment of a contrary provision in its place. An office may be held de facto by a person whose legal incapacity to hold it is imposed upon him by a prohibitory provision of the Constitution. Sheehan's case, 122 Mass. 445; Tyler v. Flanders, 58 N. H. 371. His disability may arise from a fact that is not apparent. But the principle that forbids a collateral inquiry into the validity of an appointment or election has a broader foundation than a latent defect discoverable only in extraneous evidence. A colorable appointment may be made by a body or person whose total lack of appointing power is matter of law. An unconstitutional statute, void in its face, can give color of official title. A person called in on a single occasion to exercise a power which the void statute purports to confer upon him may be an officer de facto, whose title cannot be assailed collaterally. State v. Carroll, 38 Conn. 449.

If the appointment of Graham to the constitutional office of special deputy had been under seal, but the statutory provision under which it was made had been unconstitutional and void, he would have been a deputy de facto, and his authority could not have been questioned in this suit; and for the purposes of this suit, whatever may be the efficacy of a seal, a failure to comply with a statute requiring it would not be a greater flaw than the invalidity of the statute. If the law required a seal, the want of it is a legal and technical defect that would be no more apparent to people in general than the unconstitutionality of the law.

By the general rule, official title is not triable collaterally; a colorable title is indisputable when it ought not to be disputed; and it ought not to be attacked except in an appropriate action brought for the special purpose of establishing the legal title, in which action the officer de facto, being a party, will be bound by the judgment. The impracticability of preventing the service of this plaintiff's writ by judgment of ouster in quo warranto against Graham is no cause for trying the validity of his appointment in this suit. The sheriff is responsible for the official conduct of his deputies. He shall, by himself or his deputies, serve and execute, in his county, all writs and other precepts to him directed." Gen. Laws, ch. 216, §§ 2, 3. The sheriff signed the writing specifically purporting to authorize Graham to serve the writ; and for what was done in pursuance of that writing the sheriff was responsible, whether Graham was his agent de facto and de jure, or only de facto. Graham's official claim having begun and ended with the service of this writ there is now no need of an opportunity to contest his claim in a quo warranto. See cases cited in AttorneyGeneral v. Megin, 63 N. H. 378. If any thing he did would have been wrongful with a seal on his warrant, it was wrongful without a seal. If with a seal his attachment would have been rightful, there was no reason why the plaintiff could not safely rely upon his apparent authority to make it. Without a seal, his appointment was apparent authority within the meaning of the de facto rule. That rule being a law of justice and reason, and not an arbitrary ordinance enacted by a court, does not exclude the learned or the unlearned from its protection, and did not require the plaintiff to try Graham's appointment by the test of such authority as would be apparent to the few who enjoy the advantage of a legal education.

The theory that proof of a person's being an officer de facto is prima facie evidence of his being an officer

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de jure, and that his authority is disproved by evidence that he is not an officer de jure (Pierce v. Richardson, 37 N. H. 306, 309), may be a rule of evidence in some cases) Doe v. Young, 8 Q. B. 63; Doe v. Barnes, id. 1037; McMahon v. Lennard, 6 H. L. Cas. 970, 1000, 1011; King v. Holland, 5 Term R. 607, 623), but it is not generally applicable to cases in which such person is not a party. The de facto principle is not a mere rule of evi dence in judicial trials. It invests an act of a de fucto officer with a practical validity that is indispensable for the safe transaction of a great variety of business. The acts of an officer de facto are valid when they concern the public, or the rights of third persons." Prescott v. Hayes, 42 N. H. 56, 58. original right of this plaintiff was not to introduce either prima facie or conclusive evidence on a collateral trial of the legality of Graham's official title, but to have a valid attachment made by his exercise of his apparent authority, whether his appointment was legal or illegal. The question whether a seal was necessary to make him a deputy de jure (Gen. Laws, ch. 216, §§ 1, 2; Davis v. Clements, 2 N. H. 390; Thompson v. Fellows, 21 id. 425) need not be considered. Objection overruled.

Blodgett, J., did not sit. The others concurred.

The

EVIDENCE-OPINIONS AS TO CONDITION OF HIGHWAY.

MICHIGAN SUPREME COURT, JULY 1, 1886.

LAUGHLIN V. STREET RY. OF GRAND RAPIDS.* Opinions of persons familiar with highways and their use, concerning the safety or convenience of passage, is com. petent testimony in an action for damages for an injury caused by an obstruction of a highway. Morse, J., dis

sents.

Mitchell & McGarry and Peter Doran, for plaintiff and appellant.

E. W. Withey, for defendant.

CAMPBELL, C. J. Plaintiff sued for personal injuries caused by the upsetting of a cutter while crossing defendant's track, the cause of the accident alleged being the continued existence of a hard and slippery ridge left by the defendant by the side of its track, and making the crossing dangerous. The court below directed a verdict for the defendant on account of Defendant contributory negligence. now insists, whether or not this defense is clearly made out, there is enough in the record to support the ruling, because no negligence appears in defendant, and because the injury suffered by defendant, if any, was not the same alleged in the declaration. Plaintiff alleges a good many errors in the reception and rejection of testimony, in addition to the vital question whether the case should have been taken from the jury.

We do not think it worth while to dwell on all of these points, although some of them are undoubtedly well taken. The record indicates, on both sides, an amount of objecting and debating on interlocutory questions much beyond ordinary practice, and prolonging and confusing the trial, and we can hardly suppose such a state of things will be exhibited again. The issues were not complicated, and the debates on small points take up altogether too large a part of the record of the trial for the proper disposition of the controversy.

The claim of the plaintiff is that upon the 29th of February, 1884, not far from 9 o'clock in the morning, she, with her husband, was going in a sleigh down

*S. C., 28 Northwestern Reporter, 873.

Fulton street, toward the railway station, and at the junction of Park and Monroe streets had to cross the track, which there turned upon Monroe street, with a switch at the curve. The horse was a steady one, going previously at a walk. She claims that the snow which had fallen along through the season had been thrown up beside the track, and trampled or packed down, so as to leave a depression at the track of from six to ten inches or more, with a sharp slope downward. Finding it necessary to cross the track, her husband turned the horse so as to cross as nearly as he could at right angles, but the sleigh, on making the descent, tipped over to the left, and threw her out, her husband being thrown upon her, and her left arm was dislocated. She claims that in consequence of the injury the shoulder and arm have been affected painfully ever since, and more or less weakened.

Defendant claimed that there was no negligent disposition of the snow; that the accident came from careless driving over the track, and that the alleged injuries are fictitious and the proof variant.

by the character and number of the witnesses who might be interrogated upon the subject. The admission of the evidence of the opinions of witnesses is always attended with danger, and is not tolerated by the law except in cases when such testimony is absolutely necessary in order to ascertain the truth of a fact to be determined. The truth or falsity of the opinion is necessarily concealed in the breast of the witness, and his perjury cannot be detected or punished.

This case in itself demonstrates the unreliability, and the dangerous character of expert evidence. Here we have physicians who ought to be and are men of intelligence, and of good standing as citizens in the community where they live, radically differing from the vital point of the case.

Several witnesses sworn on the behalf of the plaintiff strenuously maintain under oath, that the woman is severely and permanently injured, and a half-dozen others hold with equal pertinacity, that she is not hurt at all, but is shamming. It is difficult to see how the jury was enlightened by the learned and dogmatic opinions of these men, couched often in language uot understood by plain people, and emphatically disagreeing in almost every particular. Yet this class of evidence is admissible because it is upon a scientific subject, with which these physicians are familiar, and supposed to have a special knowledge and experience not within the reach of the ordinary citizen serving as a juror.

There is no reason for extending the rule as desired here. There is nothing about the track of this railway, the condition of the street, or the disposition of the ice and snow about and along the track, which is not within the common knowledge and experience of all who travel in the streets and highways of the cities and towns of our State; nor is there any thing about either the track, street or snow that cannot be suffi

If the testimony of the plaintiff and her husband and several other witnesses on the subject was true, the defendant's negligence was made out, and came within Bowen v. Detroit City Ry. Co., 54 Mich. 496, and Wallace v. Same (Mich.), 24 N. W. Rep. 870, cited on the argument. The court below did not allow any testimony of the condition of the road away from the immediate vicinity of the accident. As the testimony, if believed, indicated a condition of things of some duration, and not a fall of snow too near the time of the accident to relieve the defendant from fault for not removing it sooner, we do not see that any harm was done by confining the inquiry, if the same rule had been applied to both parties. But it was not. It was the duty of the defendant to see that nothing was allowed to make crossing dangerous at that point, where otherwise both Fulton and Park streets would have been rendered perilous to persons on lawful business.ciently described by an eye-witness so that a jury can There was sufficient proof of fault, and we do not gather from the record that the court below thought The cases in this State cited by the chief justice in otherwise. But we think it was error to refuse to alsupport of the proposition that this evidence of opinlow persons familiar with driving to give their opinion as to the dangerous character of this crossing is ion, as eye-witnesses, concerning the safety of the crossing. No amount of description can enable a jury to see the place as the witnesses saw it; and while witnesses must describe the place as well as they can, it is always competent for those who are familiar with highways and their use, to give their impressions received at the time concerning safety or convenience of passage, and other conditions of an analogous nature. They are not strictly scientific questions, and come within familiar principles. Evans v. People, 12 Mich. 27; Beaubien v. Cicotte, id. 459; Detroit & M. R. Co. v. Van Steinburg, 17 id. 99; Underwood v. Waldron, 33 id. 232; Elliott v. Van Buren, id. 49, and note; Pettibone V. Smith, 37 1d. 579; Huizega v. Cutler & S. L. Co., 51 id. 272.

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MORSE, J. In this case I fully concur with the opinion filed by the chief justice, except in relation to the admissibility of evidence of the opinions of persons familiar with driving, and eye-witnesses of the condition of the track at or about the time of t he alleged injury to plaintiff as to the safety of the crossing. The reception of such testimony would, in my opinion, open up a field of boundless speculation, which would tend to confuse and obscure rather that to throw light to the jury upon the question of the true condition of the street. It would also afford occasion and opportunity for perjury, limited only

get an intelligent idea of their condition.

admissible, do not seem applicable in my mind.

Evans v. People, 12 Mich. 27, simply held that a person not a physician could give his opinion that there was no sickness at a certain time within six miles of a certain place.

Beaubien v. Cicotte, 12 Mich. 459, holds that ordinary persons may give opinious as to the mental capacity

of another.

In Detroit & M. R. Co. v. Van Steinburg, it was decided that any one possessing knowledge of time and distance might give an opinion concerning the speed of a train of cars passing him.

In Underwood v. Waldron, 33 Mich. 232, it was declared that in a case of injury to the foundation walls of a building by the disintegration of mortar caused by water, and when the question to be decided was whether such water came from inside or outside the walls, a witness might give his opinion in the matter, if in addition to his personal view of the disintegrated plaster of the wall, he saw other facts indicating that the water came from any particular direction, which facts and indications he must state to the jury. But if he only saw the plaster of the wall disintegrated and destroyed by water, with nothing but this to indicate whence the water came, he could give no opinion of its source.

In the very extensive note to the case of Elliott v. Van Buren (Ann. ed.), 33 Mich. 49, where a large num ber of cases are cited, bearing upon many questions where opinions have been admitted by this and other courts, there is not one where the dangerous or safe character of a highway, street or any other thing bas

been permitted to be proven by the opinion of a wit

ness.

In Pettibone v. Smith, 37 Mich. 579, a witness was allowed to testify as to the comparative flow of water in a stream, with which he was acquainted, in different years, and the supervisor was permitted to state the effect of dry seasons upon such streams in his township.

The case nearest in point is that of Huizega v. Cutler & S. L. Co., 51 Mich. 272. The following questions were there sustained: "Question. State whether in your opinion the gearing that turns the slab-rollers in an uncovered condition would be dangerous. Q. What would be the effect of a person coming in contact, or his clothing coming in contact, with that gearing-those cogwheels?" It appears from the opinion that the objection was that of immateriality. Sherwood, J., in his opinion says: "We can see no objections to these questions. Certainly the dangerous character of the machinery was one of the questions involved in the case, and the opinion of competent witnesses was admissible to show it, as well as what consequences might be expected if a person were to come in contact with it." It does not appear from this opinion that the competency of this evidence was raised before the court, and if it was, the opinion does not declare upon what principle it was admitted. It certainly could not come within the principle contended for in the case at bar. This machinery and its character, and its operation, covered or uncovered, was not a matter of common observation or knowledge, open to all who witnessed it, as was the condition and character of this railway track and its approaches. Indeed the plaintiff recovered upon the express ground that he was ignorant of the danger, and not warned of it, when he was working in the mill, and in plain sight of it every hour of the day. It was not therefore a matter of common knowledge, but required experience in the use and knowledge of such machinery. It seems to me that it must have been admitted in the court below and sustained here upon the theory that it was a matter of expert knowledge and observation. An examination of the record of the case confirms me in this opinion. One of the witnesses permitted to answer these questions was a head sawyer of seven years' experience with such machinery, and the two others were, one a sawyer, and the other a mill carpenter, working in this identical mill, and having more than ordinary knowledge of the machinery and its use. The brief of the appellee filed in the case in this court justifies the reception of this testimony on the ground that it was expert evidence. As expert testimony it was admissible. But I do not think that persons not experts would have been permitted to answer these questions, nor in the case of this machinery could an ordinary jury, not familiar with mills and mill machinery, gather from a mere description of it the knowledge necessary to determine its character as to being dangerous in the condition it was. This is not however the case with snow or ice piled along a railway track, constantly open to the observation of everybody.

If this kind of evidence be declared competent, we shall have no doubt as many witnesses upon a side as the court below will permit, swearing, one set that the crossing was dangerous, and the other that it was perfectly safe. How this can help the jury passes my comprehension; and if any witness commits perjury, as before said, it cannot be detected or punished, nor is there any criterion within this kind of testimony itself to determine the reliability or worth of this or that man's belief about the safety of the crossing. It opens the door to opportunities for fraud, and to uncertainties in legal investigation, which I for one cannot thus encourage.

If upon the next trial of this case a witness for the plaintiff should swear that the ridges of snow were five or ten feet high, or a witness for the defendant should testify that there was no suow at all along the track, such testimony could easily be disproved by plenty of persons, and the falsity of the witness in either case satisfactorily established. But the false and fraudulent opinion of a witness cannot be thus reached. Other circumstances may show his belief a mistaken one, but his deliberate intention to swear falsely cannot be proven. Therefore such evidence is dangerous, and liable to defeat the end of justice.

It is a general rule that witnesses must give evidence of facts, and not of opinions. The exceptions to the rule do not include, as I can find, such opinions as were offered and rejected in the court below. In Stephen's Digest of Law of Evidence, which notes the exceptions to the general rule, and cites a large number of cases illustrating the variety of such exceptions, there is no case reported where the dangerous character of such a place as this crossing has been permitted to be established by the opinions of eye-witnesses, nor is any case cited bearing any analogy to such ruling.

In some of the New England States the question has arisen in the courts whether the opinions of eye-witnesses were competent as evidence of the safety of highways and bridges, or as to the dangerous character of certain places or defects in the road and streets. Such inquiries are analogous to, and should be governed by, the same principles as the inquiry into the character of the crossing in this case. I have been able to find but one case where the opinion of the witness was allowed to be given in evidence, and in that case it was permitted upon the express finding that the answers were statements of fact, and not opinions. In an action against a town for injuries received in consequence of a defect in a highway, witnesses were asked the condition of the read, and answered: “There was a bad place at the side of the road." "The condition of it was bad." "At the mouth of the culvery it was a steep-right down; a culvert that 1 thought a dangerous place." Upon the claim that these answers were improperly admitted because they merely expressed the opinion of the witnesses, who were not experts, and were not statements of any fact, the court said: "But the court do not so understand the testimony. The witnesses are not asked their opinion as to the sufficiency or insufficiency of the road, but the inquiry was as to the actual condi tion of the road in point of fact, and as to what the witnesses knew, not what was their opinion on the subject. The answers of the witnesses described the actual condition of the road as within their personal knowledge, and are not expressions of opinion." Lund v. Inhabitants of Tyngsborough, 9 Cush. 36.

In the case of Crane v. Town of Northfield, 33 Vt. 124, the question was as to the sufficiency of a bridge or culvert while covered with dirt. A witness, who was present at the time of the accident, was not allowed to make the statement that if the dirt had not been washed from the bridge the injury would not have happened. It was claimed that as he was present when the accident happened, and examined the bridge, he was entitled to give his opinion. But the court, after citing the general rule, and giving the exceptions and the reasons therefor, say: "The substance of the wit. ness' opinion that was asked for was whether it [the bridge] was then safe and sufficient. This was the very question that the jury was to try and decide, and it does not appear to us that there could be any difficulty in having the condition of the culvert so described to the jury by the witness that they would be just as capable of exercising their judgments, and forming a correct opinion, as the witness himself.

The following cases hold the same doctrine: Lester

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