say that any opinion tendered by a witness may not have weight with a jury, no matter how utterly worthless it is, and the greatest care would consequently seem requisite before any opinions are admitted. But, unfortunately, hardly any means exist of deciding these questions of competency. If any professional connection, though of the most superficial nature, can be established between the tendered witness and the skilled evidence which he proposes to give, it is rare indeed to find him excluded, and at once the mischief may be done. Cases are recorded where the decision has been allowed to depend on the crudest opinions, volunteered by some mere quack, whose facts and conclusions were as unreal as his diploma. Fortunately such extreme cases are rare, but there is naturally a large class between the border-land of ignorance and knowledge. Sometimes a skilled witness is really beyond the Court: he may feel absolutely convinced of his conclusions, whilst unable to explain to his audience his process of deduction, and such opinions are unfortunately, if necessarily, discredited. Sometimes there will be a genius in advance of his time, pooh-poohed by those who are really wise in their way, and borne down by well-meaning prejudice. It is said that in the infancy of steam, an engineer, who ventured on a belief that this new force would some day propel a carriage along a prepared track at the rate of twelve miles in an hour, was curtly ordered down from the witness box, as clearly unable to form a reasonable opinion. Of course different minds will often draw different conclusions from similar phenomena in the fields both of science and politics, and the very habit and study which a science requires may incline its professors to wild extravagancies of theory when they are only called upon to speak to their judgment or belief. While the materiality of any scientific theory can only be ascertained by the experience of persons conversant with its subject-matter, those who are wholly untrained are apt to believe too much in the capability of its pro

fessors to pronounce a safe opinion upon it, without any enquiry into the extent of its foundation upon previous experience or usage.

From what has been said it will be seen that an expert should stand wholly outside the chain of personal connection which links together the common witnesses. An opinion which if rightly formed could only be drawn from the same premises as those from which a Court or jury are to determine the cause, is improper and irrelevant in the mouth of such a witness. Thus he cannot be asked whether, upon the evidence, he is of opinion that a party is insane; this would be to lay upon him the office of the jury. He may not state his view on matters of moral or legal obligation, nor on the manner in which others would probably have been influenced if the parties to the action had acted in any particular way. He may not give his opinion of handwriting from his knowledge of the supposed writer's character and habits; but he may, if otherwise qualified, give his opinion as a matter of judgment, whether the particular facts in issue, if established, would universally produce particular results.

He may, after examining an admitted signature, give his opinion as to the genuineness of another writing alleged to be in the same hand. He may be asked whether certain facts if proved are to him conclusive of insanity. His answers may, most usefully, be the means of admitting evidence of facts, which, although otherwise irrelevant, tend by his skill and experience to elucidate the issue, or which can be employed to confirm or disprove his opinion.

It cannot be denied that there is on the part of the Bench a strong a priori distrust of expert evidence in general. It is no doubt in the abstract the form of testimony least deserving of credit, because it speaks mainly to opinion and not to facts, and is almost necessarily inconclusive. On some subjects, of course, positive or direct testimony is often unattainable, and the cause of justice is then much indebted

to a witness who can intelligently and with reason testify to his belief or opinion, or draw inference from similar facts within his own experience. But a judge may certainly find justification for his distrust in much that too often accompanies the appearance of experts in an action. They have done not a little of late towards weakening their already limited value as witnesses. That absolute independence which we have seen should be the very foundation of their worth is generally wanting. If they are men of any eminence, the tendency at least of their opinions is already known to those who employ them. It is, indeed, often on such tendency that their eminence depends. Possibly, if they are eminent, and, probably, if they are not, their judgment is biased towards their employers: ita præcurrit amicitia judicium, tollit que experiendi potestatem. Men readily believe what they anxiously desire, and such witnesses forget their real character, and seem to consider themselves paid agents. The result may be seen in the . extraordinary consequences which arise from the careful choice by suitable agents of these deliverers of opinions to order. It is not an unusual circumstance to find them in the continuous employ of some constantly litigant body, e.g., a Gas or Water Company. If otherwise, they are seldom called in until litigation has been threatened or actually commenced, instead of appearing as assistants of the Court in determining upon what is most for the public good. The wildest theories are enunciated; science and health are insulted in the interests of costs and personal notoriety; dust is purposely thrown in those eyes which ask for light, and the unavoidable inexperience of the Court is compelled to a decision which those who really cause it know to be wrong, or, at least, do not think to be right. On some special branches of enquiry the same two eminent experts, whose views are as well-known as those of two rival village politicians, confront each other daily. And, lastly, although their evidence is given upon oath, the sanction of this need

present no terrors to their minds. It has been said that there are three kinds of witnesses, those who always speak the truth, those who never speak the truth, and those who only speak the truth on compulsion; that the majority of mankind belong to the third class; and that an oath, with its attendant punishment for perjury, is, therefore, a most useful instrument. But although it may happen that, if a witness wilfully swears that he believes that to be true which he knows to be false, he may be indicted for perjury, the proof of his knowledge is too difficult to justify his prosecution. When the evidence is only as to a matter of opinion, the witness of course cannot be indicted for perjury, and it is clear that this will allow the assertion of anything which a skilled witness may think likely to advantage the cause of his employer, or add importance to his theories and himself. The serious mischief caused in this way, added to the frequent inability of the Court to obtain any other kind of evidence, or to arrive at a conclusion which does not depend mainly on such testimony, naturally produces great dissatisfaction with any decision in an expert action.

It will not, we trust, be imagined that we have been bringing a sweeping indictment against all skilled witnesses and their evidence: there are many honourable exceptions among the apostles of science. Our object has only been to call attention to some of the general considerations which primâ facie apply to a class of evidence of which the importance is daily increasing, and to show some of the difficulties which beset and weaken the cause of Science in the Law Courts.

G. BROKE FREEMAN.

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VIII.-SELECT CASES: SCOTTISH AND COLONIAL.

I. SCOTTISH: BY HUGH BARCLAY, LL.D.

Burgh Franchise—Alteration of Qualification.

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A person stood on the roll of voters as tenant and occupant." On an objection, the Sheriff altered the roll so as to make the qualification "joint proprietor and occupant," and continued him on the roll. On appeal: Held that the Sheriff had no power to alter and remit, made to strike the name from the roll. Per Lord Ormidale: "The Statutory provision in the Act 1856 is intended to cover a mistake from carelessness or inadvertence, but by no fair construction can it be held to cover where one title of qualification, namely, that of tenancy, has been altered into another quite different, viz., that of proprietorship." "The voter appears to have maintained alternatively either that he was tenant and occupant under a company as proprietors, or that he was a joint proprietor himself. He was not entitled so to plead. He was bound to take up his ground, and state to the Sheriff the precise ground on which he claimed." 6 Nov., 1876. Anderson v. Ireland, 4 Session Cases, 1.

County Franchise-Alteration of Register.

A voter was entered on the roll as joint tenant. He afterwards obtained a lease as sole tenant, and was so entered in the valuation roll, but by inadvertence was continued on the voters' roll under the old qualification. The Sheriff, on an objection to the vote, refused to strike out the word "joint." On an appeal: Held that it was competent and should be done. Per Lord Mure: "The question is whether the appellant is to be deprived of his vote because of a mistake committed by an official appointed to carry out the Registration Act. It is the policy of the Acts that an omission or mistake of an official shall not prejudice a party entitled to vote." 6 Nov., 1876. Nelson v. McGowan, 4 S.C., 3.

County Franchise-Defeasibility of Tenure.

A schoolmaster engaged by a company for a private school, with a separate free house, was on the roll of voters in respect of the house. On an objection that his tenure was defeasible, the Sheriff sustained the objection. But on an appeal, the Court reversed. Per Lord Mure: "I have come to the conclusion that