Brown v. Doubleday. JOSEPH H. BROWN v. H. M. DOUBLEDAY, APT. Evidence. Experts. Expert testimony is not admissible to show the shrinkage in measurement. of hemlock bark as measured in the pile, and afterwards in the car, that being a matter of which the jury can judge from a description of the facts. This was an action of general assumpsit; plea, the general issue,. and trial by jury at the May Term, 1888, Ross, J., presiding. The plaintiff sought to recover the amount due for a quantity of hemlock bark, sold to the defendant at an agreed price per cord, to be measured upon the cars and shrunk according to a certain rule. The question was as to the quantity of bark. The bark had been delivered in the yard, and had there become mingled with other bark. In order to show the quantity of bark the plaintiff introduced evidence of what the quantity delivered measured in the pile, which was more than that accounted for by the car measurement. Thereupon, as tending to show that the bark had all been accounted for, the defendant offered to show by persons of large experience in the similar handling of hemlock bark, what percent an average lot would shrink in being loaded into the cars, and shrunk according to the rule in this case. To this testimony the plaintiff objected, and the same was excluded by the court. Exceptions by the defendant. Lamb & Tarbell and J. J. Wilson, for the defendant. Where skill and judgment are necessary to the forming of a correct opinion, or the question involved does not lie within the range of common experience, or common knowledge, expert testimony is admissible. Rog. Exp. ss. 5, 119, 124, 125, 126, 127; Stark. Ev. 153; Bemis v. Railroad Co., 58 Vt. 636;: Dean v. McLean, 48 Vt. 412; Clifford v. Richardson, 18 Vt. 620; Mayor, etc. v. O'Neill, 1 Pa. St. 342; Wabash, St. Louis & P. Ry. v. Pratt, 15 Ill. 177. Brown v. Doubleday. Davis & Enright, for the plaintiff. The ruling of the court excluding the expert testimony was correct; first, because the court had not found the fact of their being experts; and second, because there was no evidence in the case tending to show that these witnesses had ever seen the bark in question, and it cannot be said that all Rog. Exp. p. 22, 23, etc.; People v. Rector, 19 Wend. 576; Melvin v. Bullard et al., 35 Vt. 268; Haynes v. Burlington, 38 Vt. 350; Wright v. Williams' Est., 47 Vt. 232. The opinion of the court was delivered by bark is alike. VEAZEY, J. The plaintiff sold the defendant a quantity of bark, delivered it upon the railroad grounds, and measured it. It was then loaded into the cars and measured by the defendant. The measurements did not agree. The defendant offered to show, by an expert, how much an average lot of bark, drawn and piled on the ground and measured, would shrink when loaded upon the cars. The court ruled that expert testimony was not admissible. Was such ruling error? There certainly was, in fact, just as much bark on the cars as there was on the ground; it was the identical bark, in both places, and the difference in cubic feet, between the measurement of it when on the ground, and the measurement of it in the cars, if any, would depend upon how closely the bark was packed in the respective places. That fact could be described by the witnesses and the jury could judge of the shrinkage as well as an expert and were as competent to form an opinion upon the facts shown, as the most accomplished expert. We do not say but that a question might arise in the packing of bark, where expert testimony would be admissible; but upon the facts disclosed by the record in this case we think that in the ruling below there was no error. The other question raised by the exceptions is waived. Judgment affirmed. Harvey v. Brouilette. JAMES G. HARVEY v. ALEXANDER BROUILETTE. Trial Court may limit cross-examination. Right of plaintiff to begin and close. 1. When a party becomes a witness in his own behalf he subjects himself to cross-examination at the hands of the adverse party; but the trial court in its discretion, limit the length of such examination, at least as to collateral and immaterial matters, and such discretion will not be revised by the Supreme Court. may, 2. Where the general issue is pleaded, or is under the rule treated as pleaded, so that the plaintiff must, in the first instance, make out his case, it is the right of the plaintiff to begin and close the argument. 3. Since the plaintiff did not claim the immunities of a bona fide holder, what he paid for the note in suit was immaterial, and could not be shown. This was an action in general assumpsit to recover the amount of a promissory note for $250, signed by the defendant, and payable to Ella Faneuf, or bearer, on demand. Plea, the general. issue, and trial by jury at the December Term, 1888, Powers, J., presiding. Exceptions by the defendant. It appeared that the defendant was the brother of one Prosper Brouilette, who, previously to the date of the note in suit, had been arrested under bastardy proceedings begun at the instance of the said Ella Faneuf, who then claimed to be preg nant by the said Prosper. These proceedings were finally discontinued by the payment of $250 in cash and the giving of this note. The defendant claimed that the note was to be enforced only upon the contingency that the said Ella should be actually confined; that in fact she never was confined, but miscarried, whereupon she had written to the plaintiff, who had previously become the owner of the note, notifying him of this fact, and directing him to surrender it to the defendant. Davis & Enright, for the defendant. The testimony of plaintiff as to what was said about "giving bail or going to jail" was material, and it was error for the court not to allow defendant to cross-examine as to these elements of the case. Sterling v. Sterling, 41 Vt. 91. Harvey v. Brouilette. Having once charged the jury on this evidence, the court could not prejudice defendant's rights to a new trial by a re-charge which was contradictory to its first charge. Alexander v. Blodgett, 44 Vt. 476; Powers, J., in Bovee v. Danville, 53 Vt. 190. Defendant had the affirmative of every issue that went to the jury, and should have been allowed to open and close the argument. Edwell v. Chamberlin, 31 N. Y. 611; Huntington v. Conkey, 33 Barb. 318; Ayrault v. Chamberlin, 33 Barb. 229; Warner v. Haines, 6 C. &. P. 666; Hoxie v. Green, 37 How. Pr. 97; Brennan v. Security, &c. Ins. Co., 4 Daly, 296; Millerd v. Thorn, 56 N. Y. 402; Penrhyn Slate Co. v. Meyer, 8 Daly, 61; Mercer v. Whall, 5 Ad. & El. N. S. 447; Davis v. Mason, 4 Pick. 158; Brooks v. Barrett, 7 Pick. 98; Chicago, Burlington, &c. R. R. v. Bryan, 90 Ill. 126; Harvey v. Ellethorpe, 26 111. 418; Colwell v. Brower, 75 Ill. 516; Hudson v. Wetherington, 79 N. C. 3; Harris v. Kent, 11 Ind. 136; Richardson v. Nixon, 20 l'a. St. 19; McKenzie v. Milligan, 1 Bay (S. C.) 846; Brown v. Kirkpatrick, 5 S. C. 267. The court charged the jury-"You have nothing to do with the amount Mr. Harvey paid on the note." This was error. It was also error for the court to comment upon these statements of Mr. Harvey about which a cross-examination was refused. D. C. Dennison, S. M. Pingree and J. G. Harvey, for the ¡plaintiff. The limitation put by the court upon the cross-examination of the plaintiff was correct, first, because it did not deprive defendant of any testimony, either material or admissible; second, because such limitation was in the discretion of the court; and, third, because the court charged the jury that this evidence was immaterial. The ruling of the court as to the opening and close in arguinent was clearly correct; because nothing in the character of the defense tended to reverse the relations of the parties in this Harvey v. Brouilette. respect from the usual practice, and, also, being matter of discretion, is not subject to exception. Bou. Dic. tit., "Right to begin," p. 486; 1 Greenl. Ev. s. 74; 2 Gray, 260. The amount paid by Mr. Harvey for the note was immaterial because the note was open to all the defenses against him which would have been available against the original payee. The opinion of the court was delivered by TYLER, J. The defendant insists upon three exceptions to the rulings and charge of the court below. : I. As to the limitation of the defendant in cross-examination of the plaintiff It appears that the defendant had, without objection of the plaintiff, offered evidence in defense tending to show that the note in suit was given on condition that the girl, Ella Faneuf, should be confined and require the money. The plaintiff in rebuttal testified that when Prosper Brouilette went to his office under arrest, he read the complaint to him and advised him to procure counsel; that Prosper replied he desired no counsel, and inquired what he could do, and that plaintiff informed him that he could do one of three things, settle with the girl, marry her, or go to jail. The exceptions state that in crossexamination of the plaintiff the defendant's counsel inquired at some length about what was said about obtaining counsel and giving bail, and that after spending some time upon this subject, the court said to counsel that all preliminary talk was immaterial, and the only question in issue was as to the alleged conditional character of the note, and limited the cross-examination to the subject of the settlement and its terms, in which ruling the defendant claims there was error. It is true that when a party becomes a witness in his own behalf he subjects himself to cross-examination by the adverse party. It is also true that the length of cross-examination is within the control of the presiding judge. We think the limitation in this case was a matter of proper judicial discretion, and not a deprivation of defendant's legal right. The exceptions state that there was nothing in this preliminary conversation |