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his election and qualification as a representative be ine and judge of this right. They leave it as it is, and
determined, in this proceeding, to which he is not a in their transactions with this kingdom attach them.
party. The appropriate form of trying his right to selves solely to the possession, according to their own
exercise the office of a justice is by information in be- right, and that of the State whose sovereignty is con
half of the Commonwealth, or perhaps by action tested." 4 Vatt. Law Nat., $ 14.
against him by the person injured." Sheehan's case, "A new State springing into existence does not re-
122 Mass. 445, 446.

quire the recognition of other States to confirm its in"The acts of an officer, thus having color of title, ternal sovereignty. The existence of the State de facto

are valid in respect to the rights of third per- is sufficient, in this respect, to establish its sovereignty sons, * The adoption of such a rule is neces- de jure. It is a State because it exists. *

* * The sary to prevent a failure of justice, and the great pub- external sovereignty of any State, on the other hand, lio mischief which might otherwise be justly appre- may require recognition by other States in order to hended. Besides the officer's title to his office ought render it perfect and complete. * * Until the not to be determined in a collateral way.Bucknam revolution is consummated, while the civil war, inv. Ruggles, 15 Mass. 180, 182.

volving a contest for the government continues, other “It is difficult to find a stronger illustration of the States may remain indifferent spectators of the conapplication of this rule than is furnished by the case troversy, still continuing to treat the ancient governof Fowler v. Bebee, 9 Mass. 231, where it was held that ment as sovereign, and the government de facto as a the acts of an officer, appointed without any authority | society entitled to the rights of war against its enemy." of law, could not be invalidated or inquired into in a Wheat. Int. Law (8th ed.), SS 21, 23, 27, note; 1 Kent suit between third persons.

* The cases all Com. 24, 25, 167; Kennet v. Chambers, 14 How. 38, 47; recognize the rule as being founded on publio policy, Prize cases, 2 Black, 635. which does not allow the title of a person to an office In Luther v. Borden, 7 How. 1, the plaintiff offered to be inquired into and determined in proceedings to to prove that the Dow government was lawfully estabwhich he is not a party; nor the rights of third per- lished in Rhode Island in May, 1842, and was the State Bons to be affected by illegalities or informalities in government de jure until May, 1843; and he contended the appointment or election of public officers who are that the charter government, which existed de facto, acting under color of title.” Fitchburg R. Co. v. having no legal existence during that year, could uot Grand Junction R. Co., 1 Allen, 552, 558.

authorize the defendants to break and enter the plain“No principle is better settled than that the acts of tiff's house in order to arrest him. “If this court," such persons are valid when they concern the public, says Taney, C. J. (p. 38), “is authorized to enter upon or the rights of third persons. * It would be this inquiry, as proposed by the plaintiff, aud it should impossible to maintain the supremacy of the laws if be decided that the charter government had no legal individuals were at liberty, in this collateral manner, existence during the period of time above mentioned, to question the authority of those who in fact hold if it had been annulled by the adoption of the oppospublic offices under color of legal title." People v. White, ing government, then the laws passed by its Legisla24 Wend. 520, 525.

ture during that time were nullities, its taxes wrong. “In order to secure the peaceful and orderly gov- fully collected, its salaries and compensation to its ernment of the community, the rule has been estab- officers illegally paid, its public accounts improperly lished that the right of a de facto public officer to ex- settled, and the judgments and sentences of its courts, ercise the powers of his office cannot be investigated in civil and criminal cases, null and void, and the offiin a collaterel proceeding. It must be determined cers who carried their decisions into operation, anonce for all times, in a direct proceeding to oust the swerable as trespassers, if not in some cases as crimiofficer.” Moraw. Corp. (2d ed.), $ 640.

In the reigu of Henry VI, “the house of York as- “Sir Matthew Hale,” says Woodbury, J. (p. 57). serted their dormant title; and after imbruing the “after much hesitation, at last consented to preside kingdom in blood and confusion for seven years on the bench in administering the laws between pritogether, at last established it in the person of Edward vate parties, under a government established, and IV. At his accession to the throne, after a breach of recognized by othor governments, and in full possesthe succession that continued for three descents sion de facto of the records and power of the kingdom, and above three

years, the distinction but without feeling satisfied, on inquiry, as a judicial of a king de jure and a king de facto began question into its legal rights. Cromwell had 'gotten to be first taken, in order to indemnify such as possession of the government,' and expressed a wilhad submitted to the late establishment, and to pro- lingness to rule according to the laws of the land.' vide for the peace of the kingdom, by confirming all * And this, Hale thought, justified him in acthouors conferred and all acts done by those who were ing as judge. Hale Hist. Com. Law, 14, Preface. For now called the usurpers, not tending to the disherison a like reason, though the power of Cromwell was soon of the rightful heir. In statute 1 Edw. IV, ch. 1, the overturned, and Charles the Second restored, the ju. three Henrys are styled 'late kings of England, succes- dicial decisions under the former remained unmosively in dede, and not of ryght.' And in all the lested on this account, and the judiciary went on as charters which I have met with of King Edward, before, still looking only to the de facto government whenever he has occasion to speak of any of the line for the time being. Grotius virtually holds the same of Lancaster, he calls them 'nuper defacto, et non de doctriue. Book 1, ch. 4, $ 20, and %, ch. 13, $ 11. Such jure, reges Angliæ.'' 1 Bl. Com. 204.

was the case likewise over most of this country, after “When an unjust conqueror, or any other usurper, the declaration of independence, till the acknowledg. having invaded the kingdom, on the people submitting ment of it by England in 1783. 3 Story Com. Const., to him, and by a voluntary homage acknowledging $8 214, 215. And such is believed to have been the him for their sovereign, he is in possession of their re- course in France under all her dynasties and regimes gality. Other nations, as having no right to concern during the last half century." themselves in the domestic affairs of this nation, or to “The Legislature of Texas," in 1862, “constituted interfere in its government, are to abide by its judg- one of the departments of a State government estabment, and conform to the possession; therefore they lished in bostility to the Constitution of the United may treat of a peace with the usurper, and conclude it States. It cannot be regarded therefore in the courts with him. Herein they do not injure the right of the of the United States as a lawful legislature, or its acts lawful sovereignty. It is not their concern to exam- as lawful acts. And yet it is a historical fact that





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the government of Texas, then in full control of the There may be de facto corporations (Moraw. Corp.,
State, was its only actual government; and certainly $$ 696a, 710, 711, 745-778, 1002, 1008, 2015, 1030), de facto
if Texas had been a separate State, and not one of the schools and school-masters (Kidder v. Chellis, 59 N. H.
United States, the new government, having displaced 473, 475, 476), and de facto school-bouses. Chapin v.
the regular authority, and having established itself in School-district, 30 N. H. 25, 31 A deed without a seal
the customary seats of power, and in the exercise of may be color of title. Farrar v. Fassenden, 39 N. H.
the ordinary functions of administration, would have 268, 280.
constituted, in the strictest sense of the words, a de “The selectmen who commit the list of taxes to the
faclo government; and its acts, during tbe period of collector may have, it is true, more knowledge of the
its existence as such, would be effectual, and in almost circumstances under which he was chosen aud came
all respects valid; and to some extent this is true of into office than individuals ordinarily have respecting
the actual government of Texas, though unlawful and the particular circumstances attending the appoint-
revolutionary as to the United States. It is not neces- ment of a sheriff or his deputy; but still it may impose
sary to attempt any exact definitions within which the quite as great a hardship to require them to judge, at
acts of such a State government must be treated as their peril of the legal validity of those proceedings,
valid or invalid. It may be said, perhaps with suffi- and make them answerable personally for irregular-
cient accuracy, that acts necessary to peace and good | ities which did not originate with them, which they
order among citizens—such for example, as acts sano- could not control, and respecting the legality of which
tioning and protecting marriage and the domestic re- they have but inadequate means of forming an opiu-
lations; governing the course of descents; regulating ion. If the town proceeds to elect, their duty requires
the conveyance and transfer of property, real and per- them to commit the list of taxes to the collector
sonal; and providing remedies for injuries to person chosen, if the election be legal; and they have not the
and estate, and other similar acts, which would be power to try the legality of the election, and to enter
valid if emanating from a lawful government, must be a judgment of ouster. If they are required to judge
regarded in general as valid, wben proceeding from an of the validity of the proceedings, they must do so
actual, though uulawful government, and that acts in without trial, and at their own peril if they mistake.
furtherance or support of rebellion against the United | Tucker v. Aiken, 7 N. H. 113, 132.
States, or intended to defeat the just rights of citizens, In that case the election of Stowell as tax collector
and other acts of like nature, must in general be re- of Derry was held to be illegal “because the office of
garded as invalid and void.” Texas v. White, 7 Wall. collector was set up at auction, and the lowest bidder
700, 732

elected." If the selectmen could have legally ap-
In Despatch Line v. Bellamy Co., 12 N. H. 205, 210, pointed a collector on the ground that the election be-
223, one ground on which the plaintiff contested the ing illegal, the office was vacant (act Feb. 8, 1791, $ 8),
validity of a mortgage executed by Palmer (who was a they were not bound, of their own motion, to make
director, and assumed to act as the agent of the de- an appointment. They could not judicially try, and
fendant company) was that the election of Emery as a were not bound to decide without a trial, the question
director was illegal because he was not a stockholder. of Stowell's title. Their right to treat him as a col-
The mortgage was made in pursuance of what pur- lector de facto, and to rely upon his colorable title in
ported to be a record of a vote of the directors passed committing to him the list of taxes, was pot derived
by Palmer and Emery when they met on their private from their inadequate means of forming an opinion of
business. Palmer told Emery he wanted to make a the legality of the election. Evidence that they were
mortgage of the company's property. Emery replied | learned in the law, were aware of all the facts, and
that he could not act, never having bad any stock; knew his election was illegal, would have beeu inad-
but Palmer said he was chosen a director. Emery at missible. If the judges who decided that case in 1834
last said he had “no objection to look on; "and at had been selectmen of Derry the uext year, bad been
Palmer's request, he wrote a form for a vote authoriz- present when the office of collector was again sold at
ing the mortgage. The court say, if the election of auction, and when the lowest bidder was again illeg-
Emery “had been by a municipal corporation, coming ally elected, they could have legally employed him as
into office under color of an election, he would have collector.
been an officer de facto, and his acts valid so far as In relation to a vast number of official acts in the
third persons had an interest in them; and the regu- Confederate States, the de facto rule does not discrim.
larity of the election could not in such case be in- | inate in favor of those who thought the government
quired into, except in some proceeding to which he of those States was legally established, or against those
was a party. Tucker v. Aiken, 7 N. H. 131, 135, and who entertained the contrary opinion. If A. and B.
cases cited. As a director of a private corporation, claimed the office of register of deeds, B. having color
although called in common parlance an officer of the of title, and both having knowledge that the legal
corporation he is perhaps not technically to be con- title is in A., B.'s recording a deed in which A. is
sidered an officer de fucto. He is one of the agents grantee is not invalidated by that knowledge, or by
elected by a vote of the corporation for the manage- A.'s prosecution of a suit against B. for the offico when
ment of its affairs, or some of them. But a similar he employed him to make the record. A. is protected
rule must prevail in relation to the effect of his acts, against a collateral contestation of the colorable title
80 far as the corporation have held him out as an which he directly and successfully attacks by process
agent, and third persons have confided in his acts done of law. In such a case the safety of every grantee does
within the scope of the authority he appeared to pos- not depend upon his belief in the legality of the reg-
sess.” Moraw. Corp. (2d ed.), SS 543a, 637-610.

ister's election, or upon the register's ignorance of an Irregular corporate “elections are voidable only, electoral matter of law or fact, or upon an error in the and not void. These directors at most are irregularly register's opinion on such a subject. chosen. They are in under color of an election, and The assessment and collection of an illegal tax may their acts, so long as they retain their offices, are bind- be an official duty. School-district v. Carr, 63 N. H. ing. The legality of their election cannot be brought 201, 205; Gove v. Newton, 58 id. 359; Bell v. R. Co., 4 collaterally in question, but proceedings should be in- Wall. 598. The safety of society requires the police stituted for the express purpose of trying it, and of to act with alacrity upon a merely apparent state of evicting them.” Hughes v. Parker, 20 N. H. 58, 72; things. O'Connor v. Bucklin, 59 N. H. 589, 591. The Ins. Co, v. Moore, 55 id. 48.

necessity of safe reliance on what is apparent, though

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unreal, authorizes an unofficial use of force upon an de jure, and that his authority is disproved by evidence appearance of a danger that does not exist. Aldrich v. that he is not an officer de jure (Pierce v. Richardson, Wright, 53 N. H. 398.

37 N. H. 306, 309), may be a rule of evidence in some While generalization is dangerous, the judicial ac- cases) Doe v. Young, 8 Q. B. 63; Doe v. Barnes, id. 1037; ceptance of the application that has been made of a McMahon v. Lennard, 6 H. L. Cas. 970, 1000, 1011; broad principle to the narrow facts of particular cases, King v. Holland, 5 Term R. 607, 623), but it is not genas a full exposition of it may be a repeal of a large part erally applicable to cases in which such person is not a of a salutary provision of law, and an enactment of a party. The de facto principle is not a mere rule of evi. contrary provision in its place. An office may be held dence in judicial trials. It invests an act of a de de facto by a person whose legal incapacity to hold it fucto offlcer with a practical validity that is indispenis imposed upon him by a prohibitory provision of the sable for the safe transaction of a great variety of busConstitution. Sheehan's case, 122 Mass. 415; Tyler y. iness. “The acts of an officer de facto are valid when Flanders, 58 N. H. 371. His disability may arise from they concern the public, or the rights of third pera fact that is not apparent. But the principle that for- sons." Prescott v. Hayes, 42 N. H. 56, 58. The bids a collateral inquiry into the validity of an ap- original right of this plaintiff was not to introduce pointment or election has a broader foundation than a either prima facie or conclusive evidence on a collat. latent defect discoverable only in extraneous evidence. eral trial of the legality of Graham's official title, but A colorable appointment may be made by a body or to have a valid attachment made by his exercise of his person whose total lack of appointing power is matter apparent authority, whether his appointment was legal of law. An unconstitutional statute, void in its face, or illegal. The question whether a seal was necessary can give color of official title. A person called in on a to make him a deputy de jure (Gen. Laws, ch. 216, $$ 1, single occasion to exercise a power which the void 2; Davis v. Clements, 2 N. H. 390; Thompson v. Felstatute purports to confer upon him may be an officer lows, 21 id. 425) need not be considered. Objection de facto, whose title cannot be assailed collaterally. overruled. State v. Carroll, 38 Conn. 449.

Blodgett, J., did not sit. The others concurred. 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, be would have been a deputy

EVIDENCE-OPINIONS AS TO CONDITION OF de facto, and his authority could not have been ques

HIGHWAY. tioned in this suit; and for the purposes of this suit, whatever may be the efficacy of a seal, a failure to MICHIGAN SUPREME COURT, JULY 1, 1886. comply with a statute requiring it would not be a greater flaw than the invalidity of the statute. If the LAUGHLIN V. STREET RY. OF GRAND RAPIDS.* law required a seal, the want of it is a legal and tech

Opinions of persons familiar with highways and their use, pical defect that would be no more apparent to people

concerning the safety or convenience of passage, is com. in general than the unconstitutionality of the law. By the general rule, official title is not triable col

petent testimony in an action for damages for an injury

caused by an obstruction of a highway. Morse, J., dislaterally; 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 Mitchell & McGarry and Peter Doran, for plaintiff special purpose of establishing the legal title, in which

and appellant. action the officer de facto, being a party, will be bound E. W. Withey, for defendant. by the judgment. The impracticability of preventing the service of this plaintiff's writ by judgment of

CAMPBELL, C. J. Plaintiff sued for personal inju.

ries caused by the upsetting of a cutter while crossing ouster in quo warranto against Graham is no cause for

defendant's track, the cause of the accident alleged trying the validity of his appointment in this suit. The sheriff“is responsible for the official conduct of

being the continued existence of a bard and slippery his deputies. He shall, by himself or his deputies,

ridge left by the defendant by the side of its track, serve and execute, in his county, all writs and other

and making the crossing dangerous. The court below

directed a verdict for the defendant on account of precepts to him directed." Gen. Laws, ch. 216, SS2, 3. The sheriff signed the writing specifically purporting

contributory negligence. Defendant now insists, to authorize Graham to serve the writ; and for what

whether or not this defense is clearly made out, there was done in pursuance of that writing the sheriff was

is enough in the record to support the ruling, because responsible, whether Graham was his agent de facto

no negligence appears in defendant, and because the and de jure, or only de facto. Graham's official claim

injury suffered by defendant, if any, was not the same having begun and ended with the service of this writ,

alleged in the declaration. Plaintiff alleges a good there is now no need of an opportunity to contest his

many errors in the reception and rejection of testiclaim in a quo warranto. See cases cited in Attorney

mony, in addition to the vital question whether the General v. Megin, 63 N. II. 378. If any thing he did

case should bave been taken from the jury. would have been wrongful with a seal on his warrant,

We do not think it worth while to dwell on all of it was wrongful without a seal. If with a seal his at

these points, although some of them are undoubtedly tachment would have been rightful, there was no rea

well taken. The record indicates, on both sides, an son why the plaintiff could not safely rely upon his ap

amount of objecting and debating on interlocutory parent authority to make it. Without a seal, his ap

questions much beyond ordinary practice, and propointment was apparent authority within the mean

longing and confusing the trial, and we can hardly ing of the de facto rule. That rule being a law of jus

suppose such a state of things will be exhibited again. tice and reason, and not an arbitrary ordinance en:

The issues were not complicated, and the debates on acted by a court, does pot exclude the learned or the

small points take up altogether too large a part of the unlearned from its protection, and did not require the

record of the trial for the proper disposition of the plaintiff to try Graham's appointment by the test of

controversy. such authority as would be apparent to the few who

The claim of the plaintiff is that upon the 29th of enjoy the advantage of a legal education.

February, 1884, not far from 9 o'clock in the morning, The theory that proof of a person's being an officer

she, with her husband, was going in a sleigh down de facto is prima facie evidence of his being an officer

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


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Fulton street, toward the railway station, and at the by the character and number of the witnesses who
junction of Park and Monroe streets had to cross the might be interrogated upon the subject. The
track, which there turned upon Monroe street, with a admission of the evidence of the opinions of wituesses
switch at the curve. The horse was a steady one, go- is always attended with danger, and is not tolerated
ing previously at a walk. She claims that the snow by the law except in cases when such testimony
which had falleu aloug through the season bad been is absolutely vecessary in order to ascertain the truth
throwu up beside the track, and trampled or packed of a fact to be determined. The truth or falsity of
down, so as to leave a depression at the track of from the opinion is necessarily concealed in the breast of
six to ten inches or more, with a sharp slope down. the wituess, and his perjury caunot be detected or
ward. Finding it necessary to cross the track, her punished.
husband turned the horse so as to cross as nearly as This case in itself demonstrates the unreliability,
be could at right angles, but the sleigh, on making the and the dangerous character of expert evidence. Here
descent, tipped over to the left, and threw her out, her we have physicians who ought to be and are men of
busband being thrown upou her, and her left arm was intelligence, and of good standing as citizens in the
dislocated. She claims that in consequence of the in- commuvity where they live, radically differing from
jury the shoulder and arm have been affected pain- | the vital point of the case.
fully ever since, and more or less weakened.

Several witnesses sworn on the behalf of the plaintiff Defendant claimed that there was no negligent dis- strenuously maintain under oath, that the woman is position of the snow; that the accident came from severely and permanently injured, and a balf-dozen careless driving over the track, and that the alleged others hold with equal pertinacity, that she is not hurt injuries are fictitious and the proof variant.

at all, but is shaniming. It is difficult to see how the Il the testimony of the plaintiff and her husband and jury was eulightened by the learned and dogmatic several other witnesses on the subject was true, the opinions of these men, couched often in language uot defendant's negligence was made out, and came withiu understood by plain people, and emphatically disaBowen v. Detroit City Ry. Co., 54 Mich. 496, and Wal- greeing in almost every particular. Yet this class of lace v. Same (Mich.), 24 N. W. Rep. 870, cited on the evidence is admissible because it is upon a scientific argument. The court below did not allow any testi- subject, with which these physicians are familiar, and mony of the condition of the road away from the im- supposed to have a special knowledge and experience mediate vicinity of the accident. As the testimony, if not within the reach of the ordinary citizen serving as believed, indicated a condition of things of some du- a juror. ration, and not a fall of snow too near the time of the There is no reason for extending the rule as desired accident to relieve the defendant from fault for not here. There is nothing about the track of this railremoving it sooner, we do not see that any harm was way, the condition of the street, or the disposition of done by confining the inquiry, if the same rule had the ice and snow about and along the track, which is been applied to both parties. But it was not. It was not within the common kijowledge and experieuce of the duty of the defendant to see that nothing was al- all who travel in the streets and highways of the cities lowed to make crossing daugerous at that point, where and towns of our State; nor is there any thing about otherwise both Fulton and Park streets would have either the track, street or snow that cannot be suffibeen 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 get an intelligent idea of their condition. gather from the record that the co'irt below thought The cases in this State cited by the chief justice in otherwise. But we think it was error to refuse to al support of the proposition that this evidence of opinlow persons familiar with driving to give their opin-ion as to the dangerous character of this crossiug is ion, as eye-witnesses, concerning the safety of the admissible, do not seem applicable in my mind. crossiug. No amount of description can enable a jury Evans v. People, 12 Mich. 27, simply held that a perto see the place as the witnesses saw it; and while wit- son not a physician could give his opinion that there nesses must describe the place as well as they can, it was no sickness at a certain time within six miles of a is always competent for those who are familiar with certain place. highways and their use, to give their impressions re- Beaubien v. Cicotte, 12 Mich. 459, holds that ordinary ceived at the time conceruing safety or convenience of persons may give opinions as to the mental capacity passage, and other conditions of an analogous nature. of another. They are not strictly scientific questions, and come In Detroit & M. R. Co. v. Van Steinburg, it was dewithin familiar principles. Evans v. People, 12 Mich. cided that any one possessing knowledge of time and 27; Beaubien v. Cicotte, id. 459; Detroit & M. R. Co. v. distance might give au opinion coucerning the speed Van Steinburg, 17 id. 99; Underwood v. Waldron, 33 id. of a train of cars passing him. 232; Elliott v. Van Buren, id. 49, and note; Pettibone In Underwood v. Waldron, 33 Mich. 232, it was de5. Smith, 37 id. 579; Huizega v. Cutler & S. L. Co., 51 clared that in a case of injury to the foundation walls id. 272.

of a building by the disintegration of mortar caused [Omitting other questions.)

by water, aud when the question to be decided was The judgment must be reversed, with costs, and a whether such water came from inside or outside the new trial granted.

walls, a witness might give his opinion in the matter, Sherwood, J., concurred. Champlin, J., concurred if in addition to bis personal view of the disintegrated in the result.

plaster of the wall, he saw other facts indicating that Morse, J. In this case I fully conçur with the opin- | the water came from any particular direction, which ion filed by the chief justice, except in relation to the facts and indications be must state to the jury. But admissibility of evidence of the opinions of persons fa- if he only saw the plaster of the wall disintegrated and miliar with driving, and eye-witnesses of the condi- destroyed by water, with nothing but this to indicate tiou of the track at or about the time of the alleged whence the water came, he could give no opinion of injury to plaintiff as to the safety of the crossing. The its source. reception of such testimony would, in diy opinion, In the very extensive note to the case of Elliott v. open up a field of boundless speculation, which would Van Buren (Ann, ed.), 33 Mich. 49, where a large num: tend to confuse and obscure rather that to throw light ber of cases are cited, bearing upon many questions to the jury upon the question of the true where opinions have been admitted by this and other dition of the street.

It would also afford oc- courts, there is not one where the dangerous or safe casion and opportuuity for perjury, limited only character of a highway, street or any other thing bas

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been permitted to be proven by the opinion of a wit- If upon the next trial of this case a witness for the

plaintiff should swear that the ridges of snow were In Pettibone v. Smith, 37 Mich. 579, a witness was al-five or ten feet high, or a witness for the defendant lowed to testify as to the comparative flow of water in should testify that there was no suow at all along the a stream, with wbich he was acquainted, in different track, such testimony could easily be disproved by years, and the supervisor was permitted to state the plenty of persons, and the falsity of the witness in effect of dry seasons upon such streams in his town- either case satisfactorily established. But the false ship.

and fraudulent opinion of a witness cannot be thus The case nearest in point is that of Huizega v. Cut- reached. Other circumstances may show his belief a ler & 8. L. Co., 51 Mich. 272. The following questions mistaken one, but his deliberate intention to swear were there sustained: “Question. State whether in falsely cannot be proven. Therefore such evidence is your opinion the gearing that turns the slab-rollers in dangerous, and liable to defeat the end of justice. an uncovered condition wonld be dangerous. Q. It is a general rule that witnesses must give evi. What would be the effect of a person coming in con- dence of facts, and not of opinions. The exceptions tact, or his clothing coming in contact, with that gear- to the rule do not include, as I can find, such opinions ing--those cogwheels?" It appears from the opinion as were offered and rejected in the court below. In that the objection was that of immateriality. Sher- Stephen's Digest of Law of Evidence, which notes the wood, J., in his opinion says: “We can see no objec- exceptions to the general rule, and cites a large numtions to these questions. Certainly the dangerous ber of cases illustrating the variety of such exceptions, character of the machinery was one of the questions there is no case reported where the dangerous characinvolved in the case, and the opinion of competent ter of such a place as this crossing has been permitted witnesses was admissible to show it, as well as what to be established by the opinions of eye-witnesses, por consequences might be expected if a person were to is any case cited bearing any analogy to such ruling. come in coutact with it.” It does not appear from In some of the New England States the question has this opinion that the competency of this evidence was arisen in the courts whether the opinions of eye-witraised before the court, and if it was, the opinion does nesses were competent as evidence of the safety of not declare upon what principle it was admitted. It highways and bridges, or as to the dangerous character certainly could not come within the principle con- of certain places or defects in the road and streets. tended for in the case at bar. This machinery and Such inquiries are analogous to, and should be gove its character, and its operation, covered or uncovered, erued by, the same priuciples as the inquiry into the was not a matter of common observation or knowl- character of the crossing in this case. I have been able edge, open to all who witnessed it, as was the condi- to find but one case where the opinion of the witness tion and character of this railway track and its ap- was allowed to be given in evidence, and in that case proaches. Indeed the plaintiff recovered upon the it was permitted upon the express finding that the express ground that he was ignorant of the danger, answers were statements of fact, and not opinions. In aud not warned of it, when he was working in the an action against a towu for injuries received in conmill, and in plain sight of it every hour of the day. It sequence of a defect in a highway, witnesses were was not therefore a matter of common knowledge, but asked the condition of the read, and answered: required experience in the use and knowledge of such There was a bad place at the side of the road." "The machinery. It seems to me tbat it must have been ad. condition of it was bad." "At the mouth of the culmitted in the court below and sustained here upon the very it was a steep-right downl; & culvert that I theory that it was a matter of expert knowledge and thought a dangerous place." Upon the claim that observation. An examination of the record of the these answers were improperly admitted because they case confirms me in this opinion. One of the wit- | merely expressed the opinion of the witnesses, who nesses permitted to answer these questions was a head were not experts, and were not statements of any sawyer of seven years' experience with such machin- fact, the court said: “But the court do not so underery, and the two others were, one a sawyer, and the stand the testimony. The witnesses are not asked other a mill carpenter, working in this identical mill, their opinion as to the sufficiency or insufficiency of and having more than ordinary knowledge of the ma- the road, but the inquiry was as to the actual condi chinery and its use. The brief of the appellee filed in tion of the road in point of fact, and as to what the the case in this court justifies the reception of this tes- witnesses knew, not what was their opinion on the timony on the ground that it was expert evidence. As subject. The answers of the witnesses described the expert testimony it was admissible. But I do not actual condition of the road as within their personal think that persons not experts would have been per- kuowledge, and are not expressions of opinion.” Lund mitted to answer these qnestions, nor in the case of v. Inhabitants of Tyngsborough, 9 Cush. 36. this machinery could an ordinary jury, not familiar Iu the case of Crane v. Town of Northfield, 33 Vt. 124, with mills and mill machinery, gather from a mere the question was as to the sufficiency of a bridge or description of it the knowledge necessary to determine culvert while covered with dirt. A witness, who was its character as to being dangerous in the condition it present at the time of the accident, was not allowed to

This is not however the case with snow or ice make the statement that if the dirt had not been piled along a railway track, constantly open to the ob- washed from the bridge the injury would not have servation of everybody.

happened. It was claimed that as he was present when If this kind of evidence be declared competent, we the accident happened, and examined the bridge, he shall have no doubt as many witnesses upon a side as was entitled to give his opinion. But the court, after the court below will permit, swearing, one set that citing the general rule, and giving the exceptions and the crossing was dangerous, and the other that it was the reasons therefor, say: “The substance of the wit. perfectly safe. How this can help the jury passes my ness' opinion that was asked for was whether it (the comprehension; and if any witness commits perjury, bridge] was then safe and sufficient. This was the very as before said, it cannot be detected or punished, question that the jury was to try and decide, and it nor is there any criterion within this kind of testi- does not appear to us that there could be any difficulty mony itself to determine the reliability or worth in having the condition of the culvert so described to of this or that man's belief about the safety of the the jury by the witness that they would be just as cacrossing. It opens the door to opportunities for pable of exercising their judgments, and forming a fraud, and to uncertainties in legal investigation, correct opinion, as the witness himself. which I for one canuot thus encourage.

The following cases hold the same doctrine: Lester

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