McDonald, J.
By the Court. delivering the opinion.
The presiding Judge in the Court below granted a new trial in this cause, and his decision granting the new trial is assigned for error.
[1.] Mrs. Sally Sullivan, a witness for the plaintiffs, had answered two sets of interrogatories. The counsel for the defendant moved, at the trial, to rule out the depositions last taken. The Court overruled th.c motion, and the refusal of the Court to suppress that evidence, is made a ground for a new trial. There can he no legal objection to a second examination of a witness by commission, for the purpose of explaining evidence before given, or of testifying to additional facts.
[2.] The rule in respect to the admission in evidence of the opinion and belief of a witness has been relaxed in some cases, and such testimony has been admitted, provided the witness would assign the reasons for his opinion or belief. This is an unsafe extension of the rule. It ought to be confined to cases of the judgment of experts, and where opinion and belief are the only evidence, or the main evidence on which the issue to be tried depends. Experts in any science or trade may give their. opinions on the trial of issues involving questions in respect to a particular science or trade. Subscribing witnesses to a will may testify as to their opinion of the sanity or insanity of the testator, and in similar cases witnesses may testify as to their opinions. But a witness must not give his opinion as to a fact, even though he give his reasons for his opinions. The opinion of the witness ought not to have the slightest influence upon the opinion of the jury, and yet, if the opinion goes before them, it will have an influence with them, imperceptible, perhaps, to themselves. The opinion is not relevant to the issue, if, upon its being submitted to the jury, it ought to have no influence on their finding; and if irrelevant, it is clear it ought not to be admitted as evidence. “A witness when under examination [525]*525in chief, must not depose as he thinks, or ptersuades himself to believe; he must swear from his knowledge of the fact.” McNally’s Evidence, 262. But even if the witness testifies from his knowledge, on the cross examination, he may be strictly enquired of, as to his means of knowing the fact sworn to by him,. The case cited in the above authority illustrates the propriety of a searching cross examination. The witness swore positively that he knew a thing to be true. On being cross examined, he said he knew it because his father had said so. ‘ So a witness whose opinion is legal evidence, may be strictly examined by the other party as to the reasons upon which he formed that opinion, and perhaps this rule for the ascertainment of truth in such cases, has led, incautiously, in some instances, to admit opinions where reasons are assigned for them, when the opinions are not properly admissible with or without the reasons upon which they are founded.
The rule for admitting opinions ought to be ciconfined to cases in which from the very nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment Jefferson Ins. Co. vs. Cothral, 7 Wendell’s Rep. 78.
The question in this case was whether the negroes who, at an early day, went into the possession of John Parker and his wife Chloe, were loaned or given to the daughter, Mrs. Parker, by her father, Christopher Pritchett. The witness, Sally Sullivan, testified in her first depositions, that she thinks the negroes were given or loaned. From her then present recollection she thinks they were loaned. She thinks the negroes were given or loaned shortly after they went to housekeeping. They went to housekeeping, she thinks, about four months after they were married. In her depositions last given, she reiterates that to the best of her recollection and belief, the negroes were loaned.' Some time after the marriage, the negroes -were permitted to go into the possession of [526]*526John and Chloe Parker,by her father. She does not remember the precise time when the negroes entered into the possession of John Parker. She knows he did not have possession of them until some considerable length of time had elapsed after his marriage. It was at least a year, and may-have been several. In both sets of depositions the witness states the facts and circumstances upon which her belief that it was a loan was founded. If a lawyer had been tendered as a witness to give his opinion whether upon these facts and circumstances the negroes had been given or loaned,he could not have been admitted, and why should the witness, whose opinions on that question were certainly less reliable and valuable, be received ? The jury were empannelled to find the facts, and the Court to pronounce the law, without the aid of the sworn opinions of the members of the bar, or of less capable witnesses. We think that the opinion and belief of the witness, on that point, ought not to have been admitted.
[3.] The habits of business of Christopher Pritchett were entitled to no consideration, in fixing the nature of the transaction in its origin, which was the subject of enquiry before the jury. There was no evidence of gifts occurring to other children.
[4.] This was an action of trover, and a party plaintiff may be stricken from the declaration in such case. Even in England, where their statutes of amendment are not so liberal as ours, it has been allowed in actions sounding in contract.
The plaintiffs, if they recover, must recover under the will of Christopher'Pritchett, and according to the construction of that will, those children only, of Chloe Parker, who survived her, are entitled to recover.
[5.] The plaintiffs were not estopped by any implied wai■ver of right of property, or acquiescence in the purchase of the negroes by the defendant. To bind them, the waiver or acquiescence must have been such as to have amounted to a fraud upon Chambers; such a fraud as, without which, he would not have purchased, or would have rescinded his trade [527]*527after his purchase. There is no evidence that any of the remainder-men were present when he purchased. Prudential considerations, if they were apprised of their rights, might well have restrained their action until their title accrued.
The defendant’s purchase gave him the title of the tenant for life, and the remainder-men might have considered the property safe in his hands, until the accrual of their title.
[6.] The objection that no evidence was submitted to the jury to prove the assent of the executorto the legacy to Chloe Parker and her children, cannot-be sustained. The executor allowed the property to remain in the possession of the tenant for life, and that was an assent to the entire legacy. It was in her possession at the death of the testator, and remained there, with the assent of the executor, of course.
We do not perceive that the verdict of the jury conflicts with any legal principle, or with the charge of the Court.
It is alleged that the verdict of the jury was found without evidence, and contrary to evidence, and contrary to the weight of evidence.
[7.]
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McDonald, J.
By the Court. delivering the opinion.
The presiding Judge in the Court below granted a new trial in this cause, and his decision granting the new trial is assigned for error.
[1.] Mrs. Sally Sullivan, a witness for the plaintiffs, had answered two sets of interrogatories. The counsel for the defendant moved, at the trial, to rule out the depositions last taken. The Court overruled th.c motion, and the refusal of the Court to suppress that evidence, is made a ground for a new trial. There can he no legal objection to a second examination of a witness by commission, for the purpose of explaining evidence before given, or of testifying to additional facts.
[2.] The rule in respect to the admission in evidence of the opinion and belief of a witness has been relaxed in some cases, and such testimony has been admitted, provided the witness would assign the reasons for his opinion or belief. This is an unsafe extension of the rule. It ought to be confined to cases of the judgment of experts, and where opinion and belief are the only evidence, or the main evidence on which the issue to be tried depends. Experts in any science or trade may give their. opinions on the trial of issues involving questions in respect to a particular science or trade. Subscribing witnesses to a will may testify as to their opinion of the sanity or insanity of the testator, and in similar cases witnesses may testify as to their opinions. But a witness must not give his opinion as to a fact, even though he give his reasons for his opinions. The opinion of the witness ought not to have the slightest influence upon the opinion of the jury, and yet, if the opinion goes before them, it will have an influence with them, imperceptible, perhaps, to themselves. The opinion is not relevant to the issue, if, upon its being submitted to the jury, it ought to have no influence on their finding; and if irrelevant, it is clear it ought not to be admitted as evidence. “A witness when under examination [525]*525in chief, must not depose as he thinks, or ptersuades himself to believe; he must swear from his knowledge of the fact.” McNally’s Evidence, 262. But even if the witness testifies from his knowledge, on the cross examination, he may be strictly enquired of, as to his means of knowing the fact sworn to by him,. The case cited in the above authority illustrates the propriety of a searching cross examination. The witness swore positively that he knew a thing to be true. On being cross examined, he said he knew it because his father had said so. ‘ So a witness whose opinion is legal evidence, may be strictly examined by the other party as to the reasons upon which he formed that opinion, and perhaps this rule for the ascertainment of truth in such cases, has led, incautiously, in some instances, to admit opinions where reasons are assigned for them, when the opinions are not properly admissible with or without the reasons upon which they are founded.
The rule for admitting opinions ought to be ciconfined to cases in which from the very nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment Jefferson Ins. Co. vs. Cothral, 7 Wendell’s Rep. 78.
The question in this case was whether the negroes who, at an early day, went into the possession of John Parker and his wife Chloe, were loaned or given to the daughter, Mrs. Parker, by her father, Christopher Pritchett. The witness, Sally Sullivan, testified in her first depositions, that she thinks the negroes were given or loaned. From her then present recollection she thinks they were loaned. She thinks the negroes were given or loaned shortly after they went to housekeeping. They went to housekeeping, she thinks, about four months after they were married. In her depositions last given, she reiterates that to the best of her recollection and belief, the negroes were loaned.' Some time after the marriage, the negroes -were permitted to go into the possession of [526]*526John and Chloe Parker,by her father. She does not remember the precise time when the negroes entered into the possession of John Parker. She knows he did not have possession of them until some considerable length of time had elapsed after his marriage. It was at least a year, and may-have been several. In both sets of depositions the witness states the facts and circumstances upon which her belief that it was a loan was founded. If a lawyer had been tendered as a witness to give his opinion whether upon these facts and circumstances the negroes had been given or loaned,he could not have been admitted, and why should the witness, whose opinions on that question were certainly less reliable and valuable, be received ? The jury were empannelled to find the facts, and the Court to pronounce the law, without the aid of the sworn opinions of the members of the bar, or of less capable witnesses. We think that the opinion and belief of the witness, on that point, ought not to have been admitted.
[3.] The habits of business of Christopher Pritchett were entitled to no consideration, in fixing the nature of the transaction in its origin, which was the subject of enquiry before the jury. There was no evidence of gifts occurring to other children.
[4.] This was an action of trover, and a party plaintiff may be stricken from the declaration in such case. Even in England, where their statutes of amendment are not so liberal as ours, it has been allowed in actions sounding in contract.
The plaintiffs, if they recover, must recover under the will of Christopher'Pritchett, and according to the construction of that will, those children only, of Chloe Parker, who survived her, are entitled to recover.
[5.] The plaintiffs were not estopped by any implied wai■ver of right of property, or acquiescence in the purchase of the negroes by the defendant. To bind them, the waiver or acquiescence must have been such as to have amounted to a fraud upon Chambers; such a fraud as, without which, he would not have purchased, or would have rescinded his trade [527]*527after his purchase. There is no evidence that any of the remainder-men were present when he purchased. Prudential considerations, if they were apprised of their rights, might well have restrained their action until their title accrued.
The defendant’s purchase gave him the title of the tenant for life, and the remainder-men might have considered the property safe in his hands, until the accrual of their title.
[6.] The objection that no evidence was submitted to the jury to prove the assent of the executorto the legacy to Chloe Parker and her children, cannot-be sustained. The executor allowed the property to remain in the possession of the tenant for life, and that was an assent to the entire legacy. It was in her possession at the death of the testator, and remained there, with the assent of the executor, of course.
We do not perceive that the verdict of the jury conflicts with any legal principle, or with the charge of the Court.
It is alleged that the verdict of the jury was found without evidence, and contrary to evidence, and contrary to the weight of evidence.
[7.] The principal witness in this case, Mrs. Sullivan, testifies to facts and circumstances which must have transpired, according to her own evidence, about fifty-three or four years before the testimony was given, when she could not have been exceeding six or seven years of ago, and she testified at a time when she had become aged herself, being at that time fifty-nine years old; and while we will not pretend to impute to a woman of her unquestionably good character, wilful misrepresentation, or even say that there may not be a memory capable of retaining facts and circumstances occurring at so tender an age, through a long life, yet, we will say, that the testimony of sucha witness ought to be perfectly consistent throughout, to show that it proceeds from such a memory. Mrs. Sullivan answered two sets of interrogatories in this case. In the first set she says she thinks the negroes were given or loaned shortly after John and Chloe Parker [528]*528went to housekeeping. They went to housekeeping, she thinks, about four months after they were married. This is an important item in characterizing the transaction as a gift or a loan. In her second answers she deposes, that some time after the marriage, the negroes were permitted by her father to go into possession of John and Chloe Parker; she does not remember the precise time, but she knows Parker did not have possession of them until some considerable length of time had elapsed after his marriage. It was at least a year, and may have been several years. She testifies that Jeptha Parker, the oldest of the children of the fruits of the marriage of John and Chloe Parker, was, at the time of giving her evidence in 1854, about fifty-three years old. This would fix the period of the marriage in the year 1800, oras early as that year. John and Chloe Parker remained in North Carolina sixteen or seventeen years after they came into possession of the negroes. She has been informed that they moved to Putnam county, Georgia, in 1816, and supposes they brought the negroes with them. If this evidence be true, it would fix the loan or gift at about the time of, or shortly after the marriage, and corroborate the first depositions as to the time. We will remark, that while the evidence does not necessarily impeach itself, as to the facts testified to by the witness, it shows how closely the testimony of a witness ought to be scrutinized, who deposes, after so great a lapse of time, to transactions which took place when the witness was of so tender an age, that it would be most extraordinary for any human memory to retain them. We do not, however, say that on this ground alone the Court should grant a new trial, when all these facts and circumstances were before the jury for their judgments to draw their own conclusions.
There is no evidence in this case of any fact or circumstance, that the plaintiffs, or any of them, had practiced a fraud upon the defendant, or waived any right to proceed against him.
[529]*529[8.] The Court committed no error in admitting in evidence the will of Christopher Pritchett. Both parties claimed under him. The negroes, from the testimony, wént from him cither as a gift or a loan. If the former, he had no right to will them. If the latter, he had; and the plaintiffs were entitled to recover.
[9.] The defendant moved to amend his motion for a new trial, by adding asa ground,' newly discovered evidence. This evidence applied entirely to the' takin'g of the testimony of Mrs. Sullivan, under circumstances of suspicion, supported by the affidavits of the commissioners. We do not hesitate to say that, under ordinary circumstances, we should sustain this ground. But the witness is dead. The testimony cannot be retaken. A set of interrogatories previously taken, -in the same case, had been rejected on the ground presented as an objection to Mrs. Sullivan’s. That might have excited apprehension or suspicion on the part of the defendant. If .he had such strong reason for suspecting unfairness in taking the evidence, he ought to have made enquiry in regard io it before the trial. He was, perhaps, willing to risk a trial with the testimony. Suppose the defendant had known that the testimony was true, and did not object for that reason, after risking a trial, and the witness in the mean time dies, ought he to be allowed to object? It seems, that in a very ■short time after the trial, he procured this evidence, and it is not explained by what fortuitous circumstance he arrived at the knowledge of its existence. We must not be understood to hold, that if testimony be improperly taken and brought into Court, the death of the witness alone will entitle the party to the use of it. The case must raise no presumption against the other party.
We sustain the Court below, in granting the new trial on the ground on which we have shown that we think the rule should have been made absolute. 11 .
Judgment affirmed.