
    David N. Carpenter vs. David R. Wait.
    A person accustomed to raise cattle and estimate theirweight, and test his estimate by comparing it with the bills of their weight, is a competent witness to give his opinion of the weight of cattle he has himself raised.
    This was an action against a drover for not properly selling and accounting for the proceeds of a pair of cattle sold by him as agent for the plaintiff in November, 1847. At the trial in the court of common pleas, the plaintiff, in order to prove the weight of the cattle, called Jesse Henry, who testified that “ he had been in the habit of raising cattle and selling them ; that he had in some instances been in the habit of estimating the weight of cattle and afterwards seeing the bills of their weight, after they were killed; that he generally kept one yoke every year, and sometimes two; that he was in the habit of frequently estimating the weight of his neighbors’ cattle and testing his estimate by the bills; and that he raised the cattle in question, and sold them to the plaintiff in August, 1847.” This witness was then asked his opinion as to their weight; the defendant objected to the competency of the witness to give such opinion, and the presiding judge sustained the objection. The verdict was for the defendant, and the plaintiff excepted to the ruling aforesaid, as also to others, the determination of which did not become necessary for the decision of the case, which was argued in Boston, in January, 1854.
    
      C. Allen & D. Aiken, for the plaintiff.
    
      C. P. Huntington & D. Alvord, for the defendant.
   By the Court.

The evidence of Jesse Henry should have been admitted. The fact of the weight of the cattle might be shown by the opinion of witnesses, who had seen the same, and who, from then practical experience, could testify to their weight. This species of evidence would, of course, be much inferior to that derived from the actual weighing of the cattle, but in the absence of that, it would be an approximation to the. actual weight, proper for the consideration of the jury. We allow testimony as to the value of cattle, although a matter of opinion, and we see no reason why testimony as to their weight, though matter of opinion, might not also be given, leaving its "effect for the jury, under proper instructions. For this cause, the exceptions are sustained.

New trial grcmted.  