H.—2l

23

plaintiffs contest it. They contest it by producing the evidence of some experts, whose evidence was met by at least as many experts on the part of the defendants. As to this, I may say what I think I have said before, that in matters of opinion I very much distrust expert evidence, for several reasons. In the first place, although the evidence is given upon oath, in point of fact the person knows he cannot be indicted for perjury, because it is only evidence as to a matter of opinion. So you have not the authority of legal sanction. A dishonest man, knowing he could not be punished, might be inclined to indulge in extravagant assertions on an occasion that required it. But that is not all. Expert evidence of this kind is evidence of persons who sometimes live by their business, but in all cases are remunerated for their evidence. An expert is not like an ordinary witness, who hopes to get his expenses, but he is employed and paid in the sense of gain, being employed by the person who calls him. Now, it is natural that his mind, however honest he may be, should be biassed in favour of the person employing him, and accordingly we do find such bias. I have known the same thing apply to other professional men, and have warned young counsel against that bias in advising on an ordinary case. Undoubtedly, there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them." —Jessel, M.R., in Lord Abinger v. Ashton, 17 Eg. 375. He says further: — " Suppose a man wants to sell a house, and he wants a very high value put upon it, he sends to ten valuers, and out of these he selects the three who have put the highest value on the house. The purchaser wants a very low-value, and selects out of a number of valuers three of the lowest. Each set of valuers values high or low according to the requirements of the person who employs them."—Page 375. Mr. Atkinson: The last observation with regard to valuations is very apt. I was unable to give yesterday the statement that I knew was in the notes of evidence somewhere, that not only were these men instructed by the police —that is not denied—but they were actually in the employ of the company at the time they were asked to make the examination. With regard to the expert testimony as to the possibility of getting sheep through the narrow door, your Honours have photographs of both sides of the smithy, which may assist you. The front door of the smithy was a 4 ft. door and the side door was an 18 in. door. Lambert's story, which he has stuck to consistently through all his examinations, is that young Meikle and his father drove the sheep into the yard, and subsequently drove them through the narrow door into the smithy, and he says that it took them about twenty minutes to do it. As I have said, there was little made of the point in 1887, but one or two experts were called on both sides in 1895. The witness Urquhart gave evidence before Mr. Rawson, S.M., in 1894, when Lambert was first committed. He says on page 5 of the 1894 depositions: — " T know the opening through which the sheep are alleged to have been driven—about 18 in. wide, and immediately adjoining the blacksmith's shop. I do not think it possible for sheep to be driven through there on a dark night. I attempted with two men and two dogs to do this about a month ago. We had twenty-nine sheep. We attempted in the daytime to drive them through this opening into the yard. We got some in by catching them and throwing them in." Then in answer to the Court he said, — " I have been amongst sheep eight or ten years. I found no difficulty in getting the sheep into the yard. The 18 in. opening is a door opening from smithy into the yard. The door is 8 ft. high and 18 in. between the door-posts." So that that expert tried to drive the sheep through with the assistance of two dogs, and Meikle and his son are supposed to have done it with one dog on a very dark night. This man with two dogs could not do it in daylight except by catching the sheep and throwing them in. Then at the bottom of page 26 there appears the following evidence, given by Forsaith: — . "If sheep were brought to the smithy at night, they would be put in at the 4ft. door. It would be very easy to put them in at that door. Ido not think they would be able to put them in with a dog in narrow door. No person having experience with sheep would put them into yard, and then put them through narrow door." Then Waddell, who was not called on that point, but on the question of chronology, said (at page 38): — " A person putting sheep into smithy would put them in by wide door. He would make use of the fence. It would not at night be an easy job to drive sheep into narrow door." Then, on cross-examination, he said, — " If one or two sheep were put into the door the others would draw better." Those are the two experts on one side. Then there are two on the other. Mr. Gould, at page 42, says, — " Had a good deal of experience among sheep. . . . There would be a slight difficulty in putting them through the narrow opening; with a fairly good dog I think it could be done." In cross-examination he said, "It might be done in an hour." Mr. James Walker said, — "A good many years experience with sheep—over twenty-five years. ... Ido not think there would be much difficulty in getting sheep into the narrow door of the smithy: with a very good dog none at all." Then, on cross-examination, he said, — " Any one that put them in at the narrow door when the wide door was open would be pretty nearly mad." So that, according to Lambert's witnesses —at least, one of his two experts—a man who knew anything about sheep would be mad to drive them through the narrow door. I submit, after taking the two experts, the net balance of their evidence is unfavourable to Lambert on the question of the smithy-door. The whole case rests on Lambert, and, as I submit, a considerable