Theories become facts, by becoming certain and familiar; and thus, as our knowledge becomes more sure and more extensive, we are constantly transferring to the class of facts opinions which were at first regarded as theories."

In order to properly understand the difference between what involves a question of fact and what a matter of opinion, we must have a correct knowledge of the subject under consideration. Many things, which would to-day be regarded matters of fact, within a comparatively recent period were matters of opinion. We all know now that a proper locomotive engine will easily draw half a dozen passenger coaches over a railway at the rate of twenty-five or thirty miles an hour. But a few years ago whether it could be made to do so was a matter of opinion.

The courts in many cases seem to have followed precedents rather than to have kept pace with the advancement and intelligence of the age in which the decisions were made.

In analyzing the case still another principle should be kept in mind. We may safely start with the proposition that as to matters which are not ordinarily properly understood by persons of average intelligence, he who is allowed to give an opinion as to the result of certain conceded or supposed facts should be an expert upon the subject. It must be apparent that what may to-day require an expert will a few years hence, from education or familiarity, be a matter of average intelligence.

Every lawyer of experience has observed how frequently the practical common sense of some by-stander or juryman has correctly solved a problem upon which learned and experienced experts had reached contrary conclusions. The testimony of an expert is valuable only so far as from a superior knowledge of the matter under consideration he fairly and honestly throws light upon the results sought to be reached, from such superior knowledge. If he do not in fact possess it, or if from bias, desire to sustain his professional reputation, or the interest of the party calling him, a wish to sustain a particular theory as against a counter theory, or from any other cause, he do not fairly and honestly give the result of an intelligent observation and experience, his testimony may be valueless, or even fraudulent.

With the foregoing views of the testimony of experts it must be apparent, that as to what is now known, it is constantly becoming less and less important, and the range of what may be properly denominated "matters of fact" is annually becoming wider and wider. This remark should of course be qualified in its application to matters of recent discovery.

Second. As to the remedy. In a case where expert testimony is admissible, I can see none except for counsel, and for the court, to inform themselves as fully as possible upon the subject so as to be able to detect and to expose a false or a fallacious statement or conclusion.

The witness may be cross-examined as to his reading of particular authors upon the subject and as to whether reputable authors do not entertain certain views upon the subject.

In the Connecticut Mutual Life Insurance Company v. Ellis, 89 Ill. 516, 8 Rep. 781, it was held that where a physician, as a witness, testified to the symptoms of a

disease of which a person died, whose life was insured, and pronounces it delirium tremens induced by the use of intoxicating liquors, on cross-examination, paragraphs from standard authors treating of that disease may be read to the witness and he be asked if he agrees with the author, as one of the means of testing his knowledge, and this is, in no just sense, reading such books to the jury; though care should be taken by the court to confine such cross-examination within reasonable limits and to see that the quotations read are so fairly selected as to present the author's views on the subject of examination.

The witness cannot, however, on his direct examination read from a scientific work, though he be an expert, and concur in the views therein expressed. Commonwealth v. Sturtevant, 117 Mass. 123.

It is obvious that in the examination of expert witnesses in cases of serious dispute, great latitude should be allowed, and great patience exercised with counsel by the court.

Though as a rule scientific works cannot be read in evidence to the jury, yet when the expert has cited them to sustain his conclusion, they may be put in evidence to discredit him. Ripon v. Bittel, 30 Wis. 614. In summing up to the jury counsel are entitled to read approved scientific works to the jury as a part of their argument. Legg v. Drake, 1 Ohio St. 286; Ripon v. Bittel, 30 Wis. 619; Regina v. Courvoissier, 9 C. & P. 362.

The reason is obvious. Scientists write deliberately, with a view to their reputation, and with an opportunity for refutation if their statements or opinions be not well founded. They have none of the temptations to prevaricate and to conceal which surround the expert testifying for a particular purpose, and whose value to the party calling him depends upon the result of his testimony in the particular case. If it be said the expert gives his testimony under oath, while the writer does not, the answer is that the result to be obtained is truth, and experience has shown that this is more likely to be reached by one seeking to reach and establish truth without any motive to do any thing else, than by one whose sole interest and aim is to reach certain results in any event. Steiner v. Cox, 4 Penn. St. 13.

The privilege of counsel, in their address to the jury to read from legal authorities, or from works of general science, extracts pertinent to the case, in support of their argument ought not to be abridged. It is a valuable privilege; yet so susceptible of abuse, that the extent and manner of its exercise must be entrusted in a great measure to the sound discretion of the court. Wade v. De Witt, 20 Tex. 398, 400-2; Luning v. State, 2 Pinney (Wis.), 284.

all, were to be paid plaintiff. Plaintiff was to work ten hours per day. At the time the agreement was made and he began work he was eleven years of age. He worked for the five years and the $100 not being paid him, brought this suit.

A statute of Rhode Island provides this among other things: "No minor under the age of twelve years shall be employed in or about any manufacturing establishment, in any manufacturing process, or in any labor incident to a manufacturing process. No minor under the age of fifteen years shall be employed in any manufacturing establishment in this State, unless such minor shall have attended school for a term of at least three mouths in the year next preceding the time when such minor shall be so employed; and no such minor shall be so employed for more than nine months in any one calendar year." Penalties are provided for a violation of this statute.

At the close of plaintiff's testimony in the court below defendant moved for a nonsuit upon the ground that the contract was in violation of the statute referred to, which motion was granted and plaintiff took exceptions.

John M. Brennan, for plaintiff.

Beach & Allen, for defendant.

DURFEE, C. J. The plaintiff was nonsuited on two grounds, to wit: First, because, according to the testimony, he was not a party to the contract put in evidence, and was therefore not entitled to maintain the action; and second, because the contract was illegal and void under Gen. Stat. R. I., chap. 155, §§ 21, 22 and 24. We are not convinced that the court erred in nonsuiting the plaintiff on the first ground. The contract, according to the testimony, was not a contract between the plaintiff and the defendant, but a contract between the plaintiff's father and the defendant, the plaintiff having been when it was made a mere child, eleven years old, living with his father, who boarded and clothed him, scarcely a scintilla of evidence being adduced to show that he was ever emancipated until after the contract was fully performed. Indeed the father sued at first in his own name on the contract, and it was only after being nonsuited that he brought the present action in the plaintiff's name as his next friend. But admitting that the first point was erroneously decided we still think that on the second ground the nonsuit was rightly granted. The contract was one which could not be executed without violating the statute, and the plaintiff therefore in suing to recover for having executed it was suing to recover for a violation of the statute. The law of course will not stultify itself by maintaining such an action. The law, however, while it will give no remedy on the illegal contract, does not always utterly refuse relief. It is settled that where a party has paid money or delivered personal property on a contract which is illegal because it involves the violation of a statute, he can recover it back in an action commenced while the contract remains simply executory, the recovery being had not under the contract, which is void, but in disaffirmance of it, on a promise implied or right existing independently of it. Congress & Empire Spring Co. v. Knowlton, 23 Alb. L. J. 290; Chitty on Cont. (11th Am. ed.), 944. The case at bar does not fall under this rule, for in the case at bar the plaintiff has himself executed the contract. There are cases which go further and hold that money so paid or property so delivered can be

be regarded as an innocent or comparatively innocent and unoffending party? We think not. The cases which support the doctrine last stated are cases where the statutory prohibition is directed solely against the defendant. That is not this case. Here the prohibition is directed, not against particular persons, but against a particular thing, namely: the employment of minors in manufacturing establishments. The language of the statute is "no minor, etc., shall be employed," which means not only that no manufacturer shall employ any minor, but also what it says - that no minor shall be employed, the employment itself being interdicted. The plaintiff is therefore suing for compensation for having violated the statute, for having done a forbidden thing, which is very different from suing for money or property paid or delivered on a contract, the execution of which does not involve the plaintiff in the violation of any statute, but only the defendant. Thomas v. City of Richmond, 12 Wall. 349, 356. It is argued that the prohibition of the statute cannot have been meant to include minors employed, because such minors are not subjected to any punishment, but only their employers, or their parents and guardians consenting to their employment. The argument would be unauswerable if the prohibition were simply implied from the punishment prescribed. The prohibition is express. Probably the reason why minors employed are not subjected to punishment is because ordinarily they have no will nor choice in the matter. Again it may be said that the statute was designed for the benefit of the minor and ought not to be directed against him. The statute was doubtless intended for the good of the minor, but also for the good of the public; and the Legislature seems to have thought that the surest way to make it effectual was not only to punish the more responsible offenders, but also to forbid the obnoxious employment, thus making it a malum prohibitum, for engaging in which no action will lie in favor of any person. The law will not help a man get paid for doing what the law says shall not be done. 1 Pars. on Cont. *456-459; Broom's Legal Maxims, *729-745; Peck v. Burr, 10 N. Y. 294; Levy v. Yates, 8 A. & E. 129; Gallini v. Laborie, 5 Term Rep. 242.

The exceptions are overruled, and the judgment of the court below affirmed with costs.

Exceptions overruled.

MORTGAGE BY RAILROAD COMPANY OF AFTER-ACQUIRED PROPERTY.

MISSISSIPPI SUPREME COURT, APRIL, 1881.

MISSISSIPPI VALLEY RAILWAY Co. v. CHICAGO, ST. LOUIS & NEW ORLEANS RAILWAY Co.

A mortgage given by a railroad company upon all its property and franchises, including “all its present real and personal estate and franchises now owned, or hereafter to be acquired, without any exception or reservation," held, to include only such after-acquired property as was appurtenant to and necessary for building and operating the road and carrying out the purposes for which it was created. A hotel, vacant town lots and three hundred acres of farming land acquired by the company after the mortgage was made, not used in connection with the railroad or its business, held, not included in such mortgage.

executed, if the plaintiff is an innocent party or is not in pari delicto with the defendant. Tracy v. Talmage, 14 N. Y. 162. In this case also the recovery is had not under, but independently of the contract, the contract being treated as a nullity. Can the plaintiff recover on the authority of these latter cases, recovering of course on a quantum meruit the value of his services? Can he

CHALMERS, C. J. This is an action of ejectment in which plaintiff claims title by virtue of an execution sale under a judgment against the former owner of the property, and defendant claims under a mortgage executed by the same owner. The mortgage was prior in date to the judgment, and if operative on the prop

sented to their being removed to Fanshaw-street or elsewhere.

The plaintiff now moved for judgment.

GROVE, L. J. In this case, although every thing has been said which could be said in support of the defendant's contention, I cannot agree with it. The first point is this: A person who has been intrusted with goods to put them in a particular place takes them to another place, and therefore he is responsible for the consequences, or rather for what has occurred at that place, and which in all probability would not have occurred had he put them in the other place. The only exception is that which was put by Mr. Addison during the course of the argument, and that is where the cause of destruction is oue which must take place at one place as much as another; as for instance, if a bailee, for hire of a horse, which happens to be diseased, having hired the horse for the express purpose of going to Greenwich goes to Richmond, and the horse dies and would have died from the disease in whatever direction he had gone of an equal distance, the bailee would not be liable. But if the owner of property gives another person authority to deal with it and points out the particular way, and such person chooses to deal with it in another way, he must take the risk of the consequences, whether the injury or destruction is caused by the act of a third party, or as it is called in law, by the act of God. I think that view is fully supported by the case of Davis v. Garrett, 6 Bing. 716. That was a case where the plaintiff had put on board the defendant's barge lime to be conveyed from the Medway to London. The master of the barge deviated unnecessarily from the usual course, and during the deviation a tempest wetted the lime, and the barge taking fire the whole was lost, and it was held that the defendant was liable, and the cause of loss sufficiently proximate to entitle the plaintiff to recover under a declaration alleging the defendant's duty to carry the lime without unnecessary deviation and averring a loss by unnecessary deviation. The second point held in that case is, that the law implies a duty on the owner of a vessel, whether a general ship or hired for the express purpose of the voyage, to proceed without unnecessary deviation in the usual course. Now Mr. Addison argued that this was a case of a common carrier who is an insurer, but I find that it was not decided on that ground. In the judgment of Tindal, C. J., he says: "But the objection taken is that there is no natural or necessary connection between the wrong of the master in taking the barge out of the proper course and the loss itself; for that the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course." Here the defendant's duty was to fulfill an express contract with the plaintiff, and if he gives him authority to put the goods in one place he has no right to take them to another. Tindal, C. J., goes on to say: "But if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plaintiff to recover. For if a ship is captured in the course of deviation no one can be certain that she might not have been captured if in her proper course. And yet in Parker v. James, where the ship was captured whilst in the act of deviation, no such ground of defense was even suggested. Or again, if the ship strikes a rock or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rock, or met with the same or another storm if pursuing her right and ordinary voyage. The same answer might be attempted to an action against a defendant who had hy mistake forwarded a parcel by the wrong conveyance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable. But we

think the real answer to the objection is, that no wrong-doer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss if his wrongful act had never been done. It might admit of a different construction if he could show not only that the same loss might have happened, but that it must have happened if the act complained of had not been done; but there is no evidence to that extent in the present case." There was no fire in the Kingsland-road, and the defendant, without authority, or I may say in direct defiance of authority, and without asking the plaintiff, removed the goods to Fanshaw-road, therefore he must take the consequences. I do not give any opinion as to whether this amounted to a conversion or not, and it is not necessary to decide that and to go through all the cases Mr. Addison has cited. It is undoubtedly, to my mind, a wrongful act, not authorized by the owner, and on that ground I think he cannot set up a defense which, as Tindal, C. J., says in Davis v. Garrett, "would qualify his own wrong." I don't think Hudley v. Baxendale, 9 Ex. 341, and similar cases, are decided on the same ground. There was only one case which made an impression on my mind, and that, I am told, has been overruled; that was the case of Hobbs v. Lond. & South-East. R. Co., 32 L. T. Rep. (N. S.) 252; but I don't think that was expressly in point. It does not seem to me that I should make the matter more clear by going into all the cases, and distinguishing them; and on the grounds I have stated I think judgment should be entered for the plaintiff.

LINDLEY, J. I am of the same opinion. The question is reduced to a very small point. The plaintiff gave his goods to the defendant to be warehoused at a particular place, and the defendant, for reasons good, bad or indifferent, takes them to another place. Mr. Addison says there is no cause of action, but that there was a breach of contract is very plain, and the question is what consequences must follow. Then he says that the damage was too remote, and no doubt that is an argument which requires attention, but Hadley v. Baxendale and such cases are applicable to circumstances wholly different from these. I do not say

whether what was done here amounted to a conversion, as it is not necessary to decide that. I think the true measure of damages must be the value of the goods, and the cases of Davis v. Garrett and Burrows v. March Gas & Coke Co., L. R., 5 Ex. 67, and 7 Ex. 96, seem to show this. In the latter case it was this: the defendant contracted to supply the plaintiff with a proper pipe to convey gas from the main outside to a meter inside his premises. Gas escaped from the pipe into the plaintiff's shop, and the servant of a gasfitter employed by the plaintiff and who happened to be at work in another room at the time of the escape, went into the shop upon hearing it with a view of finding out its cause. He was carrying a lighted candle, aud immediately upon entering the shop an explosion took place, doing damage to the plaintiff's premises and stock; the jury found that there was a defect in the pipe when it was supplied by the defendants, and also that there was negligence on the part of the man who carried a lighted candle into the shop. It was held that the plaintiffs were entitled to recover, and the defendants were not relieved from responsibility by the negligent act of the gasfitter's servant. In that case the damage was not considered too remote, nor do I think it is in this.

STEPHEN, J. My view of the case is so entirely the same as that expressed by my brothers Grove and Lindley that I do not think it necessary to add much