We think that that is sufficient basis for the· assessment of damages; thatprimajacie that is the cost of construction; that, if there were any peculiarities in the surroundings and conditions of the Lackawanna. Company which would make its construction and manufacture of those rails more expensive, that was a matter for the receiver to show in abatement of the damages; as, on the other hand, the Lackawanna Company could have shown, if the facts would justify, that it could have constructed those rails at $28,-a price less than the market value,-and then the measure of damages would have been the differ. ence between $28 and $35. In the absence of any testimony as to the actual cost of construction by the Lackawanna Company, the market value of the rails, it being shown that they had a market value, is a sufficient basis for the assessment of damages. So we think the as· sessment was correctly made by the master. Those are the three questions presented; and, as we agree with the master, the exceptions will be overruled, and the report confirmed.
, CHARLOTTE, DUCHESSE D'Auxy, v. SOUTTER and another, Ex'rs.
(OiJrcuit Oourt, 8. D. N(!//) York. October 6.1886.)
WITNESS-SUITS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
The exclusion of testimony of parties to actions by or against executors, administrators. or guardians, under section 858. Rev. St., does not extend to an inquiry incidental to taking an account, and not upon an issue which is the subject of a decree.
In Equity. Lewis Sanders, for complainant. Vanderpoel, Green d: Owning, for WHEELER, J. This cause has now been heard upon a motion to exclude the testimony of one of the executors upon the accounting heretofore decreed to settle the amount of the estate in the hands of the executors, one-twentieth part of which is decreed, when ascertained, to the oratrix. The testimony is sought to be excluded under section 858, Rev. St. which provides that, in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, with certain qualifications not here material. The testimony offered is as to a transaction between the testator and the executor offering himself as a witness. No judgment can be reno dered in this action upon that transaction, however. The inquiry is incidental to taking the account, and not upon an issue which is the subject of a decree. Therefore the testimony does not appear to cNDe
S. C. 8 Sup. Ct. Rep. 219.
Monongahela Bank v. JacobuB, 109 U. S. 275;
Motion to exclude testimony denied.
WALKER tl. QUINOY,
M. & P. By.
(Oircuit Oourt, E. D. Missouri. October 1, 1886.)
RAILROADS-MORTGAGES-FORECLOSURE-COMPENSATION OF TRus'rEES AND TORNEYS.
Fifteen hundred dollars allowed to New York trustees, and $5.000 to those residing in Quincy, Illinois, $5,000 to New York counsel, $5,000 to counsel in St. Louis, and $2,000 to counsel in St. Joseph.
In Equity. Motter d; Judson, for complainant. Hough, Overall d; Jndson and Phillips d; Stewart, for defendant.
BREWER, J., (orally.) In the foreclosure case of Walker v. Quincy, M. J; P. Ry. Co., the decree, which was signed early last spring,
among other things, directed the master to inquire as to the proper compensation for counsel and the trustees. Subsequently a sale was had under that decree, and confirmed. In pursuance of that direction in the decree, the master, in May, commenced a hearing as to the question of compensation. That hearing was continued from time to time, from the eighth of May to late in June, and on the twenty-sixth of June the master filed his report, which was confirmed on the same day. The report allowed to counsel in New York $5,000, to counsel in this city $5,000, and $2,000 to counsel in St. Joseph, this state. It allowed $1,500 to the trustee residing in New York, and $5,000 to the trustee residing in Quincy, Illinois. The committee of the bondholders, which was also the purchasing committee, after the confirmation of the report, and after the term had adjourned, though within five or six days thereafter, filed exceptions, and a motion to set aside that order of confirmation, and asked that the matter be referred back to the master, with leave to them to be heard as to the propriety of the allowances to the trustee at Quincy, to counsel in this city, and to counsel in St. Joseph. One of the grounds of their application is that there were some negotiations, prior thereto, between the various counsel for a settlement of the amount of their fees by Gen. Swayne. These negotiations in fact never resulted in a definite agreement, because the consent of all the parties interested could not be obtained. The matter was, however, informally at least, referred to Gen. Swayne, and he allowed to the
lEdited by Benj. F. Rex, Esq., of the St. Louis bar.