The opinion of the court was delivered by

Whether a person offered as a witness to testify as an expert, is entitled to testify in that character, depends on the determination of the preliminary question, namely, whether he is in fact an expert, as that term is understood and used in the law. What the qualification co.nsists in that gives the person the character of an expert, is sufficiently shown in Wright v. Williams, 47 Vt. 222, That case sufficiently shows that that preliminary question is to be determined by the court before he is to be examined as an expert on the issues to the jury. Whether an expert or not, is a preliminary issue to the court, and is to be tried and determined by the court, when the witness is produced and offered, and the question is made, whether an expert or not. That issue is to be tried and determined upon evidence given on the trial of it, in the trial of the cause in which the witness is produced and offered. Upon that issue not only may the person offered be examined, but any other pertinent evidence may be given by either party; and the determination of that issue is to be made upon the evidence thus given. The party producing and offering such person as an expert witness can have no advantage, and the party objecting to his competency as an expert can lawfully be put to no disadvantage, on the trial of that preliminary issue, by what was shown and decided in the trial of another cause at a previous term, or at the same term of the court between other parties. Nor can the personal knowledge and opinion of the presiding judge or all the judges as to the witness in question being competent as an expert to testify as such, be the ground and reason for determining that issue, when made, either in substitution or in aid of evidence given in open court in the trial of the cause in which the issue is made. That issue is to be tried and determined the same as if the witness in question had never before been used as an expert, and the same as if the evidence given in court on the trial of that issue gave the members of the court all the personal knowledge they have of his qualifications as an ex*86pert. In this case that issue was made. The court determined it without any evidence being given upon it, and held that the witnesses offered were competent to testify as experts, because they had both and all, at the June Term, 1877, been used as experts in the case State v. Hopkins, in regard to the same subject, and claimed to have acquired skill by their experience above common men. It is not shown how the fact thus stated was proved on the trial in the present case. It is treated in the argument that the court assumed the fact as matter of personal knowledge. It is not a matter for judicial cognizance. If the court had been composed of different men in June Term, 1878, from those composing the court, June Term, 1877, it will not be claimed that the court in 1878 could assume the existence of that fact as matter of judicial cognizance. Nor will it be claimed that the fact assumed could be proved to the court in 1878, on the issue, whether those persons were competent as experts. If not, then of course it was not competent for the court in this case to assume the issue as proved for the defendant because the members of the court knew of personal knowledge that it was proved and found for the State in June Term, 1877.

There is not occasion to pursue this with more elaboration. The result flows from the fact that the issue whether an expert or not is to be tried by the court'upon the same reasons and rules of evidence as any other issue of fact in the case, whether to be determined by the court or the jury.

The subject is sufficiently treated and illustrated in Wright v. Williams, and the books and cases there cited.

Judgment reversed, and cause remanded.