Lowe v. Jolliffe, 2 W. Black. 365. It remains to be considered when ever the question shall directly arise whether this is not the most eligible and proper course in questions of this nature; but upon this måtter it is not now necessary to make a decision": Hamblett v. Hamblett, 6 N. H. 333, 336, 344, 349. This is a strong intimation that the doctrine of State v. Corey had not been, and was not likely to be, abandoned.

In September 1834, State v. Prescott was tried in Merrimack, before Judge RICHARDSON and Judge PARKER. George Sullivan, AttorneyGeneral, and John Whipple, Solicitor, appeared for the state; Ichabod Bartlett and Charles H. Peaslee for the defendant. The defence was insanity. A large number of non-expert witnesses testified to their opinions of the sanity or the insanity of the defendant and some of his relatives; and no objection was made to the competency of the opinions. The case was sharply and strenuously contested on each side; it was tried according to the strict rules of law as then understood; the distinguished counsel on both sides, insisted upon a rigid observance of those rules; they waived no objection that occurred to them; nothing was yielded to courtesy, convenience, or humanity; in no case tried in this state, since that time, has there been a greater display of zeal, acuteness, and power on the part of counsel. It is reasonably certain that if it had been supposed to be doubtful whether the opinions of non-experts were admissible, objection would have been made to them. Those opinions were argued by the counsel, and considered by the court and jury as evidence; and there is no reason to suspect that any one engaged in the trial, thought they were not evidence.

In addition to these precedents, we know, upon the most authentic information, that, down to the time when Judge PARKER left the bench in 1848, he did not understand that the early New Hampshire practice with which he had been familiar in State v. Corey, and State v. Prescott, and of which he had expressed his approval in Hamblett v. Hamblett, had been abolished, and the contrary Massachusetts practice established in its place. After the delivery and publication of his opinion in Hamblett v. Hamblett, it is not probable that he would assent to a silent reversal of the doctrine of State v. Corey, or allow it to be reversed without some reason for or against the innovation, being put on record. This brings us down to a recent period. Whatever uncertainty there is, has arisen since Judge PARKER presided in this court. In 1848, when he retired from the bench and removed from the state, the decision in Texas had not been made, but the Massachusetts exception had been disapproved in Hamblett v. Hamblett, and rejected in State v. Ryan, State v. Corey, and State v. Prescott. Down to 1848 there is no doubt that the doctrine of Poole v. Richardson was not the law of this state. This is a matter as to which we have dates. The doctrine of Poole v. Richardson was not brought from England with the body of the common law; it was a ruling first made in this country in the present century; it had not gained a foothold in this state twenty-one years ago, and was never recognised in our decisions until 1865.

After Judge PARKER left the state, and before the trial of Boardman v. Woodman, the question of sanity was tried in a few cases, and so far as any practice can be said to have grown up in those few cases in those seventeen years, it grew into conformity to the Massachusetts exception. So far as it amounted to anything, it was a silent, unauthentic growth,

and it is very easily explained. No judge remained on the bench who had participated in the decision of Hamblett v. Hamblett, or in the trial of the early cases. The significant observations of Judge PARKER, in Hamblett v. Hamblett, were not kept prominently before the profession by any head-note or digest. They were enveloped in a case of eighteen pages, and in a part of it not likely to be often if ever read; they were entirely overlooked or forgotten. The pamphlet reports of State v. Ryan, State v. Corey, and State v. Prescott were scarce, seldom if ever read and substantially unknown; and the surviving counsel who had been engaged in those trials were no longer on active duty at our bar, and had no occasion to remonstrate against the change of our practice. The Massachusetts exception prevailed in the territory adjoining us on the south and east. The Massachusetts reports were used more than any others except our own. The legal treatises referring to this subject, in most common use among us, were written or edited by Massachusetts men who were not aware that the doctrine of Poole v. Richardson was a peculiarity of their state, and who stated the Massachusetts exception to be the common law, as they erroneously supposed it was. Greenleaf on Evidence and Massachusetts editions of Jarman on Wills exercised a potent influence in the introduction of that great mistake: 1 Greenlf. Ev. § 440; 1 Jarman on Wills 77, Mass. ed. In the second and subsequent Massachusetts editions of Jarman, the third chapter of the first volume of the English edition was omitted, and a new chapter by the Massachusetts editor was inserted in its place. In the text of this new chapter the editor gives the peculiar local rule of Poole v. Richardson, as if it were common law. It was stated in the advertisement to the second edition that the editor had added this new chapter to the original text; but the authorship of this chapter was very likely to escape observation in the use generally made of the book.

There was one peculiarity in our practice which opened the way for the introduction of the Massachusetts exception. In 1826, when the court consisted of RICHARDSON, GREEN, and HARRIS, the case of Rochester v. Chester, 3 N. H. 349, was decided, in which Judge RICHARDSON, being an inhabitant of Chester, did not sit. It was there held that witnesses could not testify their opinions of the value of land. The decision of GREEN, J., and HARRIS, J., was reported. In Peterboro' v. Jaffrey, 6 N. H. 462, in which case Judge PARKER did not sit, the exception introduced in Rochester v. Chester was followed; it was then necessarily applied to sleds and all other property, and it continued in force (Low v. Railroad, 45 N. H. 370, 383) until its excessive inconvenience in practice could no longer be endured, and it was rescinded by the legislature: Gen. Stat. ch. 209, sect. 24. After Judge BELL came to the bench the court were never unanimous against restoring the common-law rule which admitted opinions of the value of property, but in accordance with the general usage, no dissent was publicly expressed.

The exception introduced by Judge GREEN and Judge HARRIS in Rochester v. Chester was peculiar to this state; it seems never to have prevailed anywhere else in the whole world: 1 Redfield on Wills 137, 3 c.; Crane v. Northfield, 33 Vt. 126; Clark v. Baird, 9 N. Y. 183; De Witt v. Barley, 17 Id 342, 343; Kellogg v. Krauser, 14 S. & R. 137, 142; Laney v. Bradford, 4 Rich. 1; Beaubien v. Cicotte, 12

Mich. 507. Not only was it a local peculiarity, it was a troublesome and mischievous one. Unless the jury could have a view of the property in question they could not generally have satisfactory evidence of its value, and if they could have a view of it their information would generally have been greatly increased by the opinions of persons familiar with the property and with circumstances affecting its value. It was unjust; it often resulted in excessive, often insufficient damages. It was expensive and annoying; the parties were compelled to summon a greater number of witnesses than would have been necessary if their opinions could have been taken, and the process of obtaining from them such testimony as they were allowed to give, and excluding their opinions, was difficult and tedious. It was inconsistent with itself. Before the decision of Low v. Railroad, in 1864, witnesses were allowed to testify that other similar property had been actually sold for a certain price: Hackett v. B. C. & M. Railroad, 35 N. H. 390, 392, 398; their statement of the similarity of property involved their opinion, as was suggested by Judge WILCOX in Whipple v. Walpole, 10 N. H. 131, and by Judge PARKER in Beard v. Kirk, 11 Id 401. The witness who was not permitted to say that he thought a certain horse was worth more or less than a thousand dollars, was permitted to give his opinion of the age, size, weight, form, speed, strength, endurance, health, appetite, docility, timidity, and general disposition of the horse. He was permitted to give his opinion on these points, because his statement of facts without opinion was not the best evidence; and for the same reason the common law allows him to give his opinion of the value. The great legal objection to Rochester v. Chester is, that i was a violation of the elementary rule of law which allows the best evidence to be given of which the case in its nature is susceptible Opinions are the best evidence "where language is not adapted to convey those circumstances on which the judgment must be formed :" Clark v. Baird, 9 N. Y. 183, 196. Opinions are the best evidence when "from the nature of the subject to be investigated it cannot be so described in language as to enable persons not eye-witnesses to form an accurate judgment in regard to it. No description of a sled could enable a jury to judge as accurately of its value as one who had an opportunity of examining it. Two sleds may be made of the same materials and the same dimensions, and the value of one be three times that of the other; as two horses may have legs of the same length, heads of the same size, and hair of the same color, and yet be widely different in value:" De Witt v. Barley, 17 N. Y. 342, 343.

* * *

Opinions, like other testimony, are competent in the class of cases in which they are the best evidence, as when a mere description without opinion would generally convey a very imperfect idea of the force, meaning, and inherent evidence of the things described. Like other testimony, opinions are incompetent in the class of cases in which they are not the best evidence, as when they are founded on hearsay, or on evidence from which the jury can form an opinion as well as the witA rule that opinions are or are not evidence must necessarily be in conflict with the rule which admits the best evidence. A constant observer of the trial of cases examining the testimony for the purpose of ascertaining how many opinions are received and how many rejected, will find ten of the former as often as he finds one of the latter; and if

ness.

he is very critical he will find the ratio much greater than that. Opinions are constantly given. A case can hardly be tried without them. Their number is so vast and their use so habitual that they are not noticed as opinions distinguished from other evidence.

"It has been said that a witness must not be examined in chief as to his belief or persuasion, but only as to his knowledge of the fact, since judgment must be given secundum allegata et probata; and a man cannot be indicted for perjury who falsely swears as to his persuasion or belief. As far as regards mere belief or persuasion which does not rest upon a sufficient and legal foundation, this position is correct; as where a man believes a fact to be true merely because he has heard it said to be so; but with respect to persuasion or belief, as founded on facts within the actual knowledge of the witness, the position is not true. On questions of identity of persons and of handwriting it is every day's practice for witnesses to swear that they believe the person to be the same, or the handwriting to be that of a particular individual, although they will not swear positively; and the degree of credit to be attached to the evidence is a question for the jury. With regard to the second objection it has been decided that a man who falsely swears that he thinks or believes, may be indicted for perjury:" 1 Stark. Ev. 153. The cases of identity of persons and things apd of handwriting having been named in the English books, as illustrations of the competency of opinions, those cases were supposed to be peculiar exceptions to the general rule, whereas they are mere instances of the application of the general rule which admits the best evidence. This general, natural, fundamental, comprehensive, and chief rule of evidence was gradually ignored, and special and artificial rules were substituted; or if there was not an absolute substitution, there was such a removal of emphasis from the general rule to the special ones that the former lost the overshadowing influence and control which belong to it. systems of law, theology, medicine, and philosophy are easily changed by a transfer of emphasis from one point to another. To say the least, the emphasis which belongs to the general rule admitting the best evidence was gradually taken from it and placed upon the fact that there are some opinions which, not being the best evidence, are not evidence; and this fact was gradually transformed into a so-called general rule that opinions are not evidence, and this artificial rule was treated as a rule of law. The objection to this supposed rule against opinions is, that it has usurped the place of the supreme rule admitting the best evidence; that it is a mere statement of the supposed fact that opinions are not admitted under the rule of the best evidence, and that as a statement of that kind it is not true.

Entire

The local peculiarity of Rochester v. Chester tended strongly to build up and give unlimited emphasis to the supposed rule against opinions. If a farmer could not give his opinion of the value of his neighbor's farm, horse, or sled, of a ton of hay or bushel of potatoes, there was a difficulty in showing on what ground he could give his opinion of his neighbor's sanity. The legislature restored the common law in reference to opinions of values; the court ought to restore the common law in reference to opinions of sanity.

The anomaly of our present practice is easily traced to its source The innovation and error of Poole v. Richardson crept into this state

surreptitiously between 1848 and 1865, after it had been kept out more than forty years, and after the formal attempt to introduce it in State v. Corey had signally failed. Being open to all, and more than all, the objections made against Rochester v. Chester, and having lost its sole support when that innovation and error was swept away, it should be allowed to disappear.

When the fact that some opinions are not the best evidence had been magnified and turned into the so-called general rule of law that opinions are not evidence, and the rule admitting the best evidence was supplanted by it, it was thought necessary to find a special precedent for every opinion before it could be admitted. The judgments of Westminster Hall were searched to find a decision that an opinion as to value of property was competent; and to find another decision that an opinion as to sanity was competent. No such decisions could be found. None had ever been made because such opinions had always been received as unquestionably competent. The reason of the failure to find the decisions was not understood here. The failure was taken as conclusive proof that in England the opinions were not admitted. When an American mistake of this magnitude is discovered it is fit to be corrected at once. To return to the true principle, is not to change the law but to cease violating the law; or, putting it in a milder form, to allow that which is the law de facto to yield to that which is the law de jure.

In criminal cases, it is often a question how nearly a footprint in earth or snow, corresponded to the form of a shoe of the prisoner. A witness who has seen the footprint and the shoe, is allowed to give his opinion on the subject, because a mere description of forms would not be the best evidence. If a plaster cast of the track, or the original impression itself preserved by freezing, could be produced, this evidence of its form would be more satisfactory than any verbal description. So it is when an impression has been made upon the mind of a witness by the appearance and conduct of the prisoner, indicating sanity or insanity; that impression is the best evidence the witness can give on the subject. His description of the appearance and conduct is, in fact, but indirect and imperfect evidence of the impression; when he gives the original impression itself, it is as if a footprint were brought into court.

In 1795, Sir A. G. Kinloch was tried for the murder of his brother Sir Francis Kinloch: 25 St. Tr. 891, 985. Sir Francis, in making an attempt to seize and confine the defendant, had been killed by him. The defence was insanity. In the argument of Mr. Hope for the defendant, the weight of opinions of insanity was presented in this manner: "And now, gentlemen, in the face of all this evidence, in opposition to the opinion of every friend who saw him, in opposition to the advice of every professional person consulted on the occasion; in opposition to the impression of the family; to the attempt of Sir Francis: you, sitting here, wanting the strong evidence which they had, his eyes, his looks, his gestures, his tones, his whole demeanor; you, sitting here, I say, are desired presumptuously to determine that all, all were mistaken; that the prisoner was not mad, and coercion not necessary; and this you are desired to do;-Why? Because he killed his brother! Wonderful conclusion! If anything was wanting to confirm the evidence arising from the opinion of the family, that fatal event puts it beyond doubt. If it could be doubted whether Sir Francis too thought him totally