Volume 21 — District of Columbia Reports

<p>Railroad Ticket; Assault; Connecting Lines; Rights of Passengers.</p> <p>1. Where a railroad ticket is purchased, which on its face is good for a continuous passage over connecting roads from one point to another, if from any cause not the fault of the passenger or the result of his carelessness or wrong, the company is prevented from making a connection according to the letter of its contract, in carrying the passenger to his destination., and he is left over, he has a right to go upon the first train of the company to his point of destination, and is in no sense a trespasser in attempting properly to exercise that right.</p> <p>2. When a railroad company sells a ticket for passage over connecting roads, from one point to another, the trains operated upon the connecting lines are regarded for this purpose as the trains of the contracting company, and each of the connecting companies and their employees are to be treated as the agents and employees of the contracting company.</p> <p>3. If the holder of such a ticket in attempting, properly and lawfully to exercise his legal right to go upon the train of one of the connecting companies, is interrupted by the gate-keeper, and assaulted by him, the contracting company i§ liable in an action for damages resulting from that assault. .</p>

<p>Ejectment; Joinder of Tenants in Common.</p> <p>Two or more tenants in common may, in this District, join in an action of ejectment.</p>

Appeal by the defendants from a decree granting an injunction and dismissing a cross-bill. The facts are fully stated in the opinion.

<p>Defeasance; Innocent Purchasers.</p> <p>1. When an absolute deed and a defeasance relating to the same transaction are executed at the same time, they must be considered together, and when so considered in equity, as between the parties, the deed because of the defeasance, mrfstbe held to be a mortgage.</p> <p>2. When a party holding by virtue of a deed absolute on its face, but which in equity will be considered as a mortgage, mortgages the same property to a third person for value, such person takes only the rights of his grantor, unless the facts are such as to cause him to be regarded as an innocent purchaser.</p>

<p>Hearing on appeal by complainants and defendants from a decree of Special Term.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Equity; Lease.</p> <p>Where one of two joint lessees of land with a privilege of purchase, purchases the land from the lessor, the purchase enures to the benefit of his co-lessee.</p>

<p>Attachment ; Jurisdiction.</p> <p>This Court, under Sec. 769, R. S. D. C., has no jurisdiction of suits cognizable by Justices of the Peace, when the sum in controversy is less than $50, and cannot take jurisdiction of a suit involving less than that sum, in order .to allow the plaintiff to begin attachment proceedings against the defendant.</p>

<p>Party Wall.</p> <p>One of the uses of a party -wall being to afford a complete division between adjoining houses, the opening of windows in such a wall by one owner to the discomfort and inconvenience of the adjoining owner, is an injury which equity will redress by injunction; following Corcoran vs. Nailor, 6 Mackey, 580.</p>

Appeal by the defendants from a decree of the Special Term upon a bill filed to enforce mechanics’ lien. The facts are stated in the opinion.

<p>Real Estate Agents; Fraud; Misrepresentations; Caveat Emptor.</p> <p>1. Where statements designedly false have been made by one party to a contract to another who has accepted and acted upon them as true, to his injury, relief will be afforded in a court of equity, against its enforcement, upon the ground of fraud; and tescission will be decreed.</p> <p>2. Where a real estate agent points out property, not knowing whether he is right or wrong as to its location, his legal culpability is as great, if the purchaser is deceived by his statement, as if he sins against knowledge, instead of in its absence.</p> <p>3. It is not necessary that fraud should have been deliberately practised by a party relying upon a contract, if it appears that there have been material misrepresentations in fact which were accepted by the party to whom they were made, as true, to his prejudice.</p> <p>4. A man may act upon a positive representation of fact, notwithstanding that certain means of knowledge are specially open to him, (as e. g., in the public registry), of the real state of things. If the representations are of a character to induce action, and do induce it, that is enough.</p> <p>5. The rule in private sales, of caveat emptor, applies only in the absence of fraud. The rule of law is, that both parties to a contract, whether of sale or not, must act the part of prudence ; nothing more is required. In the absence of any misleading word or act by the opposite party, this rule requires each party to satisfy himself befoie the contract is made.</p> <p>6. If a real estate agent attempts to act as the agent for another, he will be liable to that other for loss through negligence or misconduct, notwithstanding he makes no charge for his services.</p>

Hearing on an appeal by the complainants from a decree dismissing a bill to cancel an assignment for the benefit of creditors. The facts are sufficiently stated in the opinion. 1.

Hearing on an appeal by the defendant from a judgment for the plaintiff for want of a sufficient affidavit of defence. The facts are stated in the opinion.

<p>Death of Counsel; Motion to employ New Counsel.</p> <p>When a motion is made to dismiss an appeal because there is no record on which the appeal could be heard, appellant’s counsel having died pending the litigation, the motion will not be entertained until notice of a motion is served upon appellant requiring him to employ new counsel.</p>

<p>Appeal; Auditor’s Report; Judgment.</p> <p>An appeal lies from a judgment of the circuit court upon an auditor’s report filed pursuant to an order of reference.</p>

<p>Orphans’ Court; Appeal; Docketing Case.</p> <p>1. When a party appeals from the Orphans’ Court, but fails to prosecute his appeal, the General Term will not entertain a motion to docket the case and dismiss it for want of prosecution.</p> <p>2. Under such circumstances the appellee should apply to the Orphans’ Court to proceed to the settlement of the estate.</p>

<p>Hearing on a motion by the plaintiff for a new trial on a bill of exceptions.</p> <p>The facts are stated in the opinion.</p>

Hearing on an appeal from a decision of the Commissioner of Patents in refusing to allow patent to issue. The facts are stated in the opinion.

Hearing on a petition for a writ of. mandamus, certified to General Term to be heard in the first instance. The facts are stated in the opinion.

The complainant’s cause of action was based upon a bond of indemnity to save him harmless from all costs and damages which he should suffer in consequence of his becoming a surety at the request of the obligors in the indemnifying bond.

<p>Evidence; Husband and Wife; Exceptions; Auditor’s Report; Acceptance; Judicial Cognizance; Fees of Auditor.</p> <p>1. A wife is not a competent witness for her husband. The fact that she has been constituted the agent of the parties to a suit in which her husband is a defendant does not render her competent, as the parties must be presumed to have selected her as such, with reference to her existing incapacity to testify.</p> <p>2. Exceptions to an auditor’s report should not leave the Court in doubt as to whether the ground of complaint is an absence of evidence, or a preponderance against the auditor’s conclusion, or whether the testimony relied on was inadmissible in law. Such exceptions will not be considered.</p> <p>3. The findings and conclusions of the auditor upon conflicting testimony are to be taken as presumptively correct, and unless some obvious error in the application of the law has intervened, or some serious or important mistake has been made in the consideration of the evidence, his report will be allowed to stand.</p> <p>4. If in a suit to enforce a mechanics’ lien it appears that certain parts of the contractor’s work were accepted by the defendant^ after they were completed, such acceptance implies that the work is to be paid for, and it is too late to renew objections that had thus been waived, after suit is brought.</p> <p>5. The Court may take cognizance of matters of history sufficiently to know the facts in regard to the shipment of English brick to this country.</p> <p>6. The apportionment of the auditor’s fee and the amount is within the discretion of the special term.</p>

Hearing in General Term in the first instance of a petition for a writ of habeas corpus. The facts are stated in the opinion.

Hearing in the first instance of a suit in equity to annul a deed alleged to have been executed under duress. The facts are sufficiently stated in the opinion.

Appeal by the plaintiff on a bill of exceptions and case stated from a judgment overruling a motion for a new trial. The facts are sufficiently stated in the opinion.

<p>Married Women ; Separate Estate ; Consideration ; Promissory Note.</p> <p>1. Where the consideration for the conveyance of real estate from a husband to his wife, through the medium of a third party, consisted of her earnings and of savings'of money which had been given to her by her husband, and moneys which she had received as a present from him at the time of executing deeds for , him ; which moneys she gave to her husband, who invested the same in real estate speculations from which profits resulted, and the husband credited her with such profits on the execution of the deed of conveyance to her, it was held that such money was not her separate property, and could form no valid consideration for su'ch conveyance as against the husband’s creditors.</p> <p>2. When a party holding securities for an indebtedness due him, is induced to surrender such securities on the promise by the debtor to execute and deliver in lieu thereof a deed of trust on real estate, such promise forms a sufficient consideration for the subsequent execution of the deed of trust, as against other creditors of the debtor.</p> <p>3. The promissory note of a married woman given to secure her husband’s debt is void.</p> <p>4. Equity will, when the circumstances seem to require it, treat a conveyance by a wife of real estate apparently hers, but in law the property of her husband, in which conveyance her husband unites, as a conveyance by the husband.</p>

Rehearing on petition of complainant, of appeal by defendants from decree of special term setting aside deed. The facts are stated in the opinion.

<p>Promissory Note; Consideration; Patent Rights; Affidavit of Defence.</p> <p>1. When the payee of a promissory note, the consideration for which was the sale of an alleged invention, sues the maker thereon, and the affidavit of defence discloses the fact that the Patent Office had decided the alleged invention not to be patentable, the consideration fails, and judgment under the seventy-third rule will be refused.</p> <p>2. The seventy-third rule is not intended to operate as a trap, and an affidavit which sets up a valid defence, though inartificially drawn, will be sufficient.</p>

<p>Mechanics’ Liens; Jurisdiction.</p> <p>1. The Supreme Court of the District of Columbia has jurisdiction in equity suits brought to enforce mechanics’ liens, notwithstanding the amount involved may be less than $50.</p> <p>2. Neither Section 769 R. S. D. C., nor the Maryland Act of 1777, Ch. 4T, which is in force here, controls such a case, but the proceedings are governed by the act of July 2, 1884 (I Rich. Supp., 447-449)-</p> <p>3. Any inconvenience which may arise from the prosecution m equity of such petty claims under the Mechanics’ Lien law, cannot interfere with the duty of the court to enforce the clear right given to the suitor.</p>

Hearing on an appeal by the defendant from a judgment by default in favor of plaintiff. The facts are sufficiently stated in the opinion.

<p>Bills of Exceptions ; Extension of Term.</p> <p>1. Where the October Term of the court below was prolonged from time to time, until April 4th (in the January Term), for the purpose o£ signing a bill of exceptions, and exceptions were not presented on April 4th, but were presented and signed on the nth of April, seven days after the prolonged term had expired, it was held that such bill of exceptions came too late.</p> <p>2. If a bill of exceptions is without authority of law, this court in General Term is under no obligation to look into the other questions which are raised by the record.</p>

<p>Trust Estate ; Sale of Equitable Interest ; Limitations ; Usury.</p> <p>1. Where real estate is conveyed upon trust for the use of a husband until the youngest child should attain the age of 21 years, upon the happening of -which event the estate is to be sold and the proceeds divided among the children, each child has a vested estate in remainder, with the same rights and powers as exist in any other case where a vested remainder is created, subject only to’the limitations in the deed itself as to the power of alienation.</p> <p>2. It would be competent for any one of the children in such a case, on becoming of age to sell his interest to a stranger, but the stranger would be bound by the limitations provided in the deed.</p> <p>3. In such a case, as soon as the youngest child should arrive at the age of 21 years, the estate in the grantee would be precisely like any other estate acquired by devise, inheritance or purchase, and the grantee would be entitled to a sale of his interest.</p> <p>4. The defence of usury can only be made, either at law or in equity, by the party from whom the usury has been exacted, and cannot be set up in a collateral proceeding; citing with approval Kendal vs. Vanderlip, 2 Mackey, 105.</p>

<p>Evidence; Admissibility of Boiler Inspector’s Report; License; Contributory Negligence; Exceptions; Prayers.</p> <p>1. The report as to the cause of a boiler explosion, made by official inspectors, and filed with the Commissioners of the D. C. four days after an accident, the making of which report is not required by any law or regulation of the Commissioners, and which contains the ex parte statements of witnesses, is not admissible in a suit for damages against the owners of the boiler for injuries resulting from such accident, as evidence tending to prove the liability of the defendant; following Moore vs. Langdon, 2 Mackey, 131.</p> <p>2. The question whether evidence offered at a trial is properly admissible in rebuttal, is in the discretion of the trial court and is not reviewable on appeal; following Prindle vs. Campbell, 18 D. C., 605.</p> <p>3. Employers are not liable to an employee for the consequences of their negligence resulting in an accident, if the employee before the cause of action occurred, knew of the facts constituting negligence, and made no complaint to his employers, but wilingly exposed himself to injury, without any promise on their part to remedy the defects.</p> <p>4. Where a bill of exceptions refers to a paper offered in evidence, but not set out therein, and the paper is not authenticated so as to identify it before the appellate court, that court will not necessarily consider it. ,</p> <p>5. Where several prayers are offered as a whole or series, some of which are wrong and some right, the trial court has a right to reject them all.</p> <p>6. Where a record on appeal states that the portions of the charge of the court below excepted to, are printed in smaller type, and those portions as printed comprise five pages of the record, the exception is too general, and will not be considered by the appellate court; following Langdon vs..Evans, 3 Mackey, 1.</p> <p>7. The fact that the defendant employed an unlicensed engineer, would not constitute a ground of recovery against him in a civil suit for damages, by a party injured in consequence of a boiler explosion.</p>

Hearing on an appeal by the defendants from a decree for sale in a suit for partition. The facts are sufficiently stated in the opinion.

Appeal by the complainant from a decree of the special term dismissing a bill in equity. The facts are stated in the opinion.

<p>Hearing in the General Term in the first instance.</p> <p>The facts are stated'in. the opinion.</p>

<p>Contracts ¿ Impossibility of Performance; Constructive Notice; Construction of Writings.</p> <p>1. As soon as one person has disabled himself from performing his contract with another, the latter’s right o£ action accrues, and he heed not wait to ascertain whether his rights may not ultimately be secured to him.</p> <p>2. When a contract is made with trustees to purchase property in their name, and the property is subsequently purchased in the name of another party, a right of action at once accrues, and the fact that the trustees might at some future time re-purchase the property and perform their covenants, will not prevent a recovery.</p> <p>3. The filing of articles of incorporation of a railroad company in the proper office therefor, reciting the ownership of property, is not notice to the public that the title to the property which had previously been in another party, is in the incorporation.</p> <p>4. Where writings contain peculiar words of art, or phrases used in commerce or trade, the determination of the. meaning of such words or phrases should be left to the jury; but subject to this ascertainment by the jury, it is for the court to decide the meaning of written instruments.</p>

Appeal by the defendants from a judgment for the plaintiff, overruling a demurrer to a declaration on a promissory note. The facts are sufficiently stated in the opinion.

<p>Exceptions to Auditor’s Report.</p> <p>1. Mere general exceptions to the findings of the auditor, without specifically stating the grounds therefor, and setting forth the very evil complained of, are insufficient, and will not be regarded by this court on appeal.</p> <p>2. The auditor of this court sustains a relation to it similar to that which a master in chancery ordinarily has to a court of equity, and the same consideration should be given to his report and exceptions, as should be given to reports made by masters in chancery.</p> <p>3. The auditor’s findings are to be taken as presumptively correct, and unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence, they will be permitted to stand.</p>

Hearing before General Term in the first instance of a suit for partition. The facts are sufficiently stated in the opinion.

<p>Practice ; Non-suit ; Appeal.</p> <p>1. A trial court, at the request of the plaintiff made at any time before verdict, even after a motion is granted to direct a verdict for the defendant, is obliged to enter a judgment of non-suit.</p> <p>2. A trial court cannot properly allow a voluntary non-suit with leave to strike it out at another day, nor has it a right to strike out a voluntary non-suit once entered.</p> <p>3. The statute of 2 Henry IV., Chap. 7, is in force in this District.</p> <p>4. No such thing as a compulsury non-suit is known to procedure in this jurisdiction.</p> <p>5. An appeal or exception presupposes a judgment or decree ; hence, there can be no appeal from a mere opinion of the court.</p>

<p>Estates by the Curtesy.</p> <p>1. A husband need not necessarily have had some right in his wife’s estate during her life, in order to have an estate by the curtesy after her death. The fact that he has no interest in her lands during coverture is not sufficient by itself to make curtesy impossible in case she dies intestate.</p> <p>2. Since the passage of the Married Woman’s Act (Secs. 727-730, R. S. D. C.), the husband continues to have his common law right as to curtesy, subject to be defeated by his wife’s alienation of her property. If his right is not thus defeated, it simply remains undisturbed by her, and he takes his estate.</p>

<p>Contributory Negligence ; Power of Court to Direct Verdict.</p> <p>1. The care required o£ one to prevent an accident is that ^degree of care which may reasonably be expected from one in his situation. What will be deemed reasonable care in any case will depend upon the particular circumstances of that particular case.</p> <p>2. A trial court may withdraw a case from the jury, and direct a verdict, where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.</p>

<p>Hearing on a bill of exceptions taken by the plaintiff.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Tender; Set-off; Contingent Fees; Attorney and Client.</p> <p>1. An attorney who collects money for his client, and is not guilty of laches or default in regard to paying it over, is not liable for interest. He is only liable for interest in the event that he should fail to pay the money when demanded, or should appropriate it in some way to his own use.</p> <p>2. Where one person tenders to another the amount he conceives to be due, by check, and the latter does not object to the tender as not being in proper form, but returns the check on the ground that the amount thereof is too small, any objection as to the form of the tender is waived.</p> <p>3. Under Section 810, R. S. D. C., an attorney may set off his fees for services, where suit is brought against him for money collected.</p> <p>4. An agreement with an attorney to prosecute on a contingent fee an action on a promissory note is not unlawful.</p>

Appeal by the plaintiff from a judgment quashing writ of scire facias. The facts are sufficiently stated in the opinion.

Appeal by the plaintiff from order sustaining a demurrer to a declaration. The facts are sufficiently stated in the opinion.

<p>Official Bonds ; Liability of Sureties.</p> <p>The condition of an official bond was : “ If the said D shall, and doth at all times, henceforth, and during his holding and remaining in said office, carefully discharge the duties thereof, and faithfully expend all public moneys, and honestly account without fraud or delay for the same, and for all public property which shall or may come into his hands, then the above obligation to be void; Otherwise to remain in full force and virtue.” Held, that the sureties on such bond were liable for a balance of public moneys coming into their principal’s hands during a former term of office, and for which he had failed to account, in the absence of proof that a defalcation by the officer had occurred during the former term.</p>

<p>Evidence; Negligence; Right of Court to Direct Verdict.</p> <p>1. If no reason is assigned for objecting to testimony, and the testimony is admissible for any purpose, it is error to exclude it.</p> <p>2. The mere act of jumping from a car in motion, but not at a high speed, does not in itself constitute contributory negligence in law.</p> <p>3. Where a passenger was injured while alighting from a train from Washington to Baltimore, which he had boarded by mistake in consequence of a misleading direction by an employee within the station whom he had asked to point out the train for Gaithersburg; it was competent for .him to testify, as bearing upon the question of negligence on the part of the company, that there were no signs, within the station, indicating the destination of the different trains, since the absence of such signs left the passengers wholly dependent for such information upon the officials, and the company might well be held responsible for such misdirection by its officials, resulting in injury to the travellers.</p> <p>4. Where a question arises upon a state of facts, upon which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of these conclusions has been drawn by the jury. The inferences to be drawn from the evidence must be certain and incontrovertible, or they cannot be decided upon by the court. Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ.</p>

Appeal by the defendant from a judgment overruling a motion for a new trial. The facts are sufficiently stated in the opinion.

Appeal by the plaintiff from an order overruling a motion for a new trial. The Court in its opinion stated the case as follows: This action was instituted on a promissory note executed by the defendant to the plaintiff for $124.

Hearing on a bill of exceptions taken by the defendant in a trial for murder.. The facts are sufficiently stated in the opinion.

Hearing in the General Term in the first instance. An examination as to the insanity of a prisoner sentenced to death, was conducted in the presence of the court, the prisoner, and a commission of experts. The facts are stated in the opinion.

<p>New Trial; Evidence; Competency of Jurors.</p> <p>1. A motion for a new trial in a capital case is properly overruled when it is based upon an affidavit setting up as newly discovered evidence, a conversation with affiant by a deceased witness, in which the witness stated what he had seen of the occurence in question; the deceased witness having testified at a former trial, and on the second trial, defendant’s counsel having been permitted to state the former testimony of deceased witness.</p> <p>2. A trial and conviction based upon an indictment subsequently held to be insufficient and void, are nullities and cannot be pleaded in bar of a second indictment for the same offence.</p> <p>3. A trial court may be entirely justified in accepting one of two jurors and rejecting the other, although their answers may appear from the record to have been identical; for the one may have exhibited in his deportment entire respectability and candor, while the other may have given evidence of insincerity and evil habits.</p> <p>4. If it appears from the whole examination of a juror that he could render an impartial verdict upon the evidence alone as submitted to the jury, such a state of mind on his part would render him a qualified juror, notwithstanding the alleged opinion he may have formed from reading the newspapers or listening to rumors.</p> <p>5. A person who is employed as a stamp agent by the Government to sell stamps on a small salary, is not “a salaried officer of the Government of the United States,” and as such, exempt from service as a juror, under Section 875 of the Revised Statutes, relating to the District of Columbia.</p>

Hearing on an appeal by the complainant from decree dismissing a bill to set aside a deed of trust sale. The facts are sufficiently stated in the opinion.

Hearing on an application for instructions to appraisers as to manner of making valuations. The facts are stated in the opinion.

Hearing on an application for the allowance of additional compensation to expert witnesses, who testified as to gold deposits, to be paid by the United States. The facts are stated in the opinion.

Hearing on an appeal by the defendant from an order sustaining a demurrer to a plea of limitations in an action for damages. The facts are stated in the opinion.

<p>Negligence; Verdict; Interest on Judgments in Tort; Remittitur.</p> <p>1. Where the District of Columbia authorizes excavations in a public street so as to leave the street in an unsafe condition for pedestrians, the District at once becomes chargeable with the duty of seeing that proper safeguards are provided to prevent accidents. Therefore in an action against the District for damages alleged to have been caused by negligence in guarding a street, an instruction which directs the jury to find for the defendant unless they believe that it had actual or constructive notice by the lapse of time, of the insufficiency of such safeguards, should not be granted, following McPherson vs. D. C., 18 D. C., 564; and D. C. vs. Woodbury, 136 U. S., 450.</p> <p>2. Interest runs on all judgments in this jurisdiction, whether they are rendered in actions of contract or actions of tort.*</p> <p>3. In this jurisdiction a jury has no right, in returning its verdict in an action of tort, to select an antecedent day at its discretion, and say that interest shall run from that day upon the amount of the verdict.</p> <p>4. When such a verdict is returned, this court has a right to refrain from granting a new trial if the plaintiff will enter a remittitur of interest unlawfully allowed, but otherwise to grant a new trial.</p>

Hearing on an appeal by the defendant from an order overruling a motion for a new trial, in a criminal prosecution. The facts are sufficiently stated in the opinion.

Hearing upon an appeal by the defendant from an order overruling a motion for new trial in an action for damages. The facts are stated in the opinion.

Hearing in the General Term in the first instance of a suit to remove cloud from title. The facts are stated in the opinion.

Hearing on an appeal by the defendant from order oveiTuling motion for new trial in an action for damages for alleged negligence. The facts are stated in the opinion.

Hearing upon a bill of exceptions taken by the caveators in the trial of issues upon a caveat to a will. The facts are sufficiently stated in the opinion.

<p>Application for a writ of mandamus, heard before General Term in the first instance.</p> <p>The facts are stated in the opinion.</p>

<p>1. An appeal will not He to this court, from any ruling of the Commissioner of Patents, on the admissibility of amendments to specifications.</p> <p>2. The court will.review the decision of the Commissioner on claims as they are presented to him for final decision, either in the shape in which they were originally made, or as amended with the leave of the Patent Office.</p>

Hearing upon ’a bill of exceptions taken by the defendant in an action of debt on a judgment. The facts are stated in .the opinion.

<p>Rock Creek Park Act; Damages; Expert Witnesses.</p> <p>1. Under the act of Congress of September 27, 1890 (26 Stat., 492), relating to the condemnation of land for the Rock Creek Park, and appropriating a sum of money to pay “the expenses of inquiry, survey, assessment, cost of lands taken, and all other necessary expenses incidental thereto ” ; such money cannot be applied to the payment of damages to a leasehold of land not taken, although included on the original plat of the projected park.</p> <p>2. Where in such proceedings land included in the original plat was not taken, but finally excluded, payment will not be made to the owner of fees paid by him to his alleged expert witnesses, to prove the value of a white flint quarry on his land.</p> <p>3. Such witnesses cannot be properly classed as expert witnesses. The subjects as to which they testified are not of a character involving especial skill or peculiar knowledge, but are within the range of ordinary experience.</p>

Hearing on an appeal by the defendant from an order overruling a motion for a new trial. The facts are stated in the opinion.

<p>Promissory Notes ; Accommodation Endorser ; Equity Jurisdiction.</p> <p>1. Where a promissory note is endorsed by the payee, and is subsequently endorsed by a second endorser who has no interest in the matter, and the payee takes up the note at maturity, he cannot maintain a suit against the second endorser for contribution, unless there was an express agreement between them that they were to be co-sureties.</p> <p>2. A surety has a complete remedy at law where he desires to recover a contribution from his co-surety, and equity, therefore, cannot take jurisdiction.</p>

Hearing in the General Term in the first instance in an action at law -on a motion by the defendant to re-tax costs. The facts are stated in the opinion.