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IN

NOTES OF CASES.

Colony R. R. Co., 100 Mass. 208; Penn. R. R. Co. [N Pittsburgh, Cinc. & St. Louis Railway Co. v.

Kilgour, 32 Penn. St. 292; Lambeth v. North Car

olina R. R. Co., 66 N. C. 494. Krouse, 30 Ohio St. 222, the conductor on a railroad train upon which plaintiff was a passenger had received from plaintiff a five dollar bill, out of In Mut. Life Ins. Co. v. French, 30 Ohio St. 240, which he was to take for fare twenty-five cents. a policy of life insurance contained the usual clause Being unable to then procure change he kept the of forfeiture for non-payment of premiums. The bill, telling plaintiff he would change it at the sta- premiums were payable one-half cash and the other tion at which plaintiff was to alight. Plaintiff left half by a note. Upon the 6th of July, 1867, the the train at the station, and the train was moving day the premium was due, the agent of the company off with the conductor, who had not given up the received the check of assured, dated July 25, 1867, bill or made change, when plaintiff climbed on the for the half cash due, and a six months' note, givplatform and asked for his change. The conductor ing the renewal receipt for a year. The note conhanded back the bill and there was evidence that tained the clause “if not paid at maturity said he told plaintiff to get off the train, which was policy is to be null and void.” Neither check nor moving with some speed, as quickly as possible. note was paid. The court held that the mere fact Plaintiff did so at a point beyond where passengers that the note was not paid at maturity did not of usually alighted, and was injured. No compulsion itself avoid the policy. It gave the insurance comwas used to cause plaintiff to leave, and no attempt pany the option of declaring a forfeiture, but this was made to stop the train. The court held that option must be asserted by clear and unequivocal the relation of passenger and carrier did not exist acts. The clause of forfeiture, being inserted in between plaintiff and the company at the time he the note for the benefit of the company, might be was injured, and that the duties and obligations of waived by failure to act, or other circumstances the company toward him were only such as existed evincing an intention not to claim the benefit of the toward the general public; that the failure of the stipulation. Whether the company had exercised conductor to return the money before leaving the such option, or waived its rights, was held to be a station did not exempt plaintiff from the exercise question of fact for the jury, under all the circumof proper care and prudence, and that if the con- stances of the case. This is an application of the ductor ordered or directed plaintiff to get off the rule that such a clause being introduced for the bentrain while it was in motion, at a place where it was efit of the insurance company merely makes the polnot prudent to make the attempt, each order or di- | icy voidable at its election, and not absolutely void rection, without compulsion, did not warrant the upon a mere payment of the note. See Bouton v. An. plaintiff to do a hazardous or imprudent act and Mut. Life Ins. Co., 25 Conn. 542; Jacobs v. Mut. impute the consequences to the company, and that Life Ins. Co., 5 Big. 48; Wing v. Hervey, 27 E. L. whether plaintiff's act was an imprudent one, & Eq. 140; Buckbee v. U. 9. Mut. Ins. & Trust Co., amounting to contributory negligence, was for the 18 Barb. 541; Sheldon v. Conn. Mut. Ins. Co., 25 jury to determine. In Filer v. N. Y. Cent. R. R. Conn. 207; Goit v. Nat. Prot. Ins. Co., 25 Barb. Co., 49 N. Y. 47, it is held that when a passenger 189. In the case at bar the company retained the upon a railroad, by the wrongful act of the com- check and note and refused to return the same. The pany, is put to an election between leaving the cars court held that this amounted to a waiver of the forwhile they are moving slowly, or submitting to the feiture. This is an application of the principle that inconvenience of being carried by the station where forfeitures are not favored at law, and very slight he desires to stop, the company is liable to the con- circumstances are required to constitute a waiver. sequences of his choice, provided it is not exercised A receipt of premium after it is due has been often wantonly or unreasonably. To the same effect is held to be a waiver. See Froelich v. Atlas Life Ins. Delematyr v. Milwaukee, etc., R. R. Co., 24 Wis. 578. Co., 47 Mo. 406; Sims. v. State Ins. Co., id. 54; In McIntire v. N. Y. Cent. R. R. Co., 37 N. Y. 288, Hodson v. Guardian Life Ins. Co., 97 Mass. 144; a similar rule was held where a passenger was in- Thompson v. St. Louis Mut. Life Ins. Co., 52 Mo. jured in attempting to pass from one car to another 469. And even an acknowledgment of the receipt in a moving train, under direction of an employee of premiums has been held sufficient. Teutonia of the company; in Warren v. Fitchburg R. R. Co., | Life Ins. Co. v. Anderson, 77 III. 384; IN. Cent. Ins. 8 Allen, 227, where a person who had purchased a Co. v. Wolf, 37 id. 354; Prov. Life Ins. Co. v. Fenticket was struck by a train while crossing the nell, 49 id. 180. See, also, Helme v. Ins. Co., 61 track under the direction of the ticket agent; and Penn. St. 707; Fitzpatrick v. Ins. Co., 25 La. Ann. in Sweeney v. Old Colony R. R. Co., 10 Allen, 358, 443; Ripley v. Ins. Co., 29 Barb. 552; Co. Litt. 218 where a person was injured by a train in crossing a; Shepp. Touchstone, 153; Lessce of Boyd et al. v. the track after he had been told by the company's Talbert, 12 Ohio, 212; Smith v. Whitbeck et al., 13 flagman that it was safe. See, also, Gaynor v. Old Ohio St. 471; Kellogg v. Union Co., 12 Conn. 7

A

Burr v.

Beers, 24 N. Y. 178, it was held in general terms LIABILITY OF MARRIED WOMEN FOR DE

that a

mortgagee could maintain FICIENCY UNDER FORECLOSURE.

a personal actior against a grantee of mortgaged premises, who

assumes to pay the incumbrance; that if one perCASE presenting peculiar and interesting son makes a promise to another for the benefit of a

questions of law has just been decided by third person, such third person may maintain an the Court of Appeals of New York State, involving action upon the promise. the liability of married women as mortgagees in And thus, under the principles decided in Burr foreclosure proceedings.

We refer to the case of v. Beers, the General Term judge'held that the deVrooman v. Harriet B. Turner, impleaded. The fendant, Harriet B. Turner, undertook to pay her gravamen of the complaint was that the defendant own debt and that there was no reason in law or took a conveyance of certain premises in which ap- morals why she should not do it. On the question peared the following provision: “ Subject, never- of coverture, he said: “We think that the covertheless, to the payment of a certain indenture of ture of the defendant was no defense to this action. mortgage, bearing date the 5th day of August, 1873, The liability was contracted upon the purchase of made and executed by Charles E. Evans to John real property by the defendant in her own name, W. Eddy, to secure the principal sum of fifty-five which became her separate estate, and it was a couhundred dollars and the interest thereon, and re- tract to pay a portion of the purchase-money, and corded in the office of the Register of the county was therefore for the benefit of her separate estate." of Kings, in Liber number 1166 of Mortgages, Upon the question of liability of the defendant, page 22, on the 9th day of August, A. D. 1873, Mrs. Turner, under the covenant per se, the respondwhich mortgage the party hereto of the second ent cited Thorpe v. Keokuk Coal Co., 48 N. Y. 253; part hereby covenants and agrees to pay off and Coster v. Mayor of Albany, 43 id. 411; Secor v. discharge, the same forming part of the considera- Lord, 3 Keyes, 525; Lawrence v. Fox, 20 N. Y. 268; tion therefrom."

Beers, 24 id. 178; Garnsey v. Rogers, 47 N. The case was tried below before a referee, who Y. 233; and on the question of coverture, Frecking decided as matter of law, that the plaintiff was en- v. Rolland, 5:3 N. Y. 425, and Maxon v. Scott, 55 titled to the usual decree for the foreclosure and sale | id. 247. of the mortgaged premises, and if the proceeds of In the case under consideration, the defendant's such sale“ be insufficient, that the plaintiff have grantor had not assumed the payment of the mortjudgment for the amount of said deticiency against gage, and the prime question was whether, under Charles E. Evans, the mortgagor and obligor, and the circumstances, covenant to assume the same against Harriet B. Turner, who, by assuming the constituted a cause of action. This question seems payment of the said mortgage as a part of the con- to be clearly decided in King v. Whitely and Trotter sideration of the conveyance of the mortgaged v. Hughes, that in such case it does not constitute a premises to herself, has become, and is in law, per- cause of action. sonally liable therefor.”

The case, Laurence v. Fox, 20 N. Y. 268, cited by On the trial the counsel of the defendant request- the respondent, only decided that, where one person ed the referee to find that the covenant was not for loans money to another upon his promise to pay it the benefit of the separate estate of said defendant, to a third party, to whom the party so lending the which the referee declined to do, and an exception money is indebted, the contract thus made by the was taken.

lender is made for the benefit of his creditor, and The defendant appealed to the General Term of the the latter can maintain an action upon it, without Supreme Court for the Second Department, and proving an express promise to himself from the largely rested her case upon the principles of law party receiving the money. The opinion of Judge enunciated by the Court of Appeals in the cases of Rapallo on the case of Lawrence v. Fox is very

clear Trotter v. Hughes, 12 N. Y. 74; and King v. Whitely, 10 and satisfactory. In the course of his review of the Paige, 465, claiming that they substantially decided case (see Garnsey v. Rogers, 47 N. Y. 233) he says that where, as in the present case, the grantor in a he does not understand that that case went so far as conveyance is not personally liable to the holder of to hold every promise made by one person to the mortage to pay the same, his grantee is not lia- another, from the performance of which a third ble, although assuming in terms to pay the same. person would be benefited, gives a right of action to The defendant, however, in that case, did not un- such third person, he being privy neither to the dertake personally to pay the mortgage, and the contract nor the consideration. In such cases the judge at the General Term remarked that “the decis-contract should have been made for his benefit. ion would have been fully as satisfactory if it had Vide the English cases of Dutton v. Poole, 1 Ventris, been placed on that ground. The questions presented 318; Price v. Eaton, 4 Barn. & Adol. 433, and Lilly and discussed in Trotter v. Hughes created much con- v. Hays, 5 Ad. & Ellis, 548. A case of much flict of judicial opinion, but by the case of Burr v. I weight in favor of the appellant in the case under consideration is that of Merritt v. Green, 55 N. Y. tween him and his grantor, from liability to the 270. We do not see that the case of Burr v. Beers, holder of the mortgage when the grantee is not cited by the respondent, was of much avail, for in bound in law or equity for the payment of the mortthat case the defendant retained in his hands a gage, is founded in reason, and rests upon principle, portion of the purchase-money, agreeing to dis- and is not inconsistent with that class of cases in charge with it the debt his grantor owed the plain- | which it has been held that a promise to one for tiff, and in this case, Vrooman v. Mrs. Turner, the the benefit of a third party may avail to give an defendant simply bought the interest her grantor action directly to the latter against the promisor, (Sanborn) had, who held the premises subject to of which Laurence v. For, supra, is a prominent the mortgage, but was not liable for the payment of example.” It has also been settled by several wellthe same.

considered cases, that, to give a third party, who On the question wliether Mrs. Turner was bound may derive a benefit from the performance of the by the covenant contained in the deed from San- promise, an action, two things must 'concur : 1st, born, her grantor, wherein it is recited that she an interest by the promisee to secure some benefit agrees to pay the mortgage, the appellant cited the to the third party, and 2nd, some privity between following pertinent cases: Chamberlain v. Parker, the two, the promisor and the party to be benefited, 45 N. Y. 569; Ballin v. Dillaye, 37 id. 45; White and some obligation or duty owing from the former V. McNett, 33 id. 371; and on the point as to affect- to the latter, which would give him a legal or equiting her separate estate, Yale v. Dederer, 22 N. Y. able claim to the benefit of the promise, or an equiva450; Corn Ex. In. Co. v. Babcock, 42 id. 613. lent from him personally, or, in the language of Judge

The Court of Appeals, in deciding the questions Rapallo: " To entitle him to an action the conraised, adverted to King v. Whitely, supra, decided tract must have been made for his benefit. He in 1843, the first case on the precise question in the must be the party intended to be benefited.” Vide case under review, and in effect observes, that it Irish v. Ridge, 41 N. Y. 21, and also Merrill v. Green, was conceded by the Chancellor that if the grantor | 55 id. 270. The courts seem disinclined to extend had been personally liable to the holder of the mort- the doctrine of Lawrence v. Fox to cases not clearly gage for its payment, the holder of such mortgage within the principle of those decisions. There would have been entitled in equity to the benefit of must be some obligation of the promisee in the the agreement recited in such conveyance, to pay third party to adopt and claim the promise as made off the mortgage, and to a decree over against the for his benefit. Gray J., in the last cited case, regrantee for the deficiency. This would have been marks : “ All the defendant had the right to dein accordance with a well-established rule equity mand in this case was evidence which, as between which gives to the creditor the right of subrogation Halley and the plaintiff, was competent to establish to, and the benefit of any security held by a surety the relation between them of debtor and creditor." for the re-enforcement of the principal debt, and in See, also, Doolittle v. Naylor, 2 Bos. 225, and Ford v. the case supposed, and by force of the agreement David, 1 id. 569 ; Farley v. Chambord, 4 Cow. 432 recited in the conveyance, the grantee would have (1825), affirmed in the Court for the Correction of become the principal debtor, and the grantor would Errors in 1827 per totam curiam, and reported in 9 be a quasi surety for the payment of the mortgage Cow. 639. debt. See Halsey v. Reed, 9 Paige, 446; Curtis v. Ty- In view of these several authorities it will be ler, id. 432 ; Burr Beers, 24 N. Y. 178. In clearly observed that the General Term, in holding King v. Whitely, supra, the Chancellor in effect de- that the defendant, Mrs. Turner, was bound to pay cided, that, if the grantor had been personally liable the whole consideration for the premises,” and that to the holder of the mortgage for the payment of it was “simply an agreement to pay her own debt," the mortgage debt, the holder of it would have been was giving the adjudicated cases on this general entitled to the benefit of the agreement recited in question, as the mariner would say, too much sea such conveyance, on the principle of equity which And thus Judge Allen, in closing his long gives to the creditor the right of subrogation of the opinion, concludes, that the court below erred in security held by a surety in such cases, the grantee giving judgment against the appellant for the defithereby becoming the principal debtor, and the ciency after the sale of the mortgaged premises, and grantor a quasi surety for the payment of the mort- that so much of the judgment as directed her to gage. Halsey v. Reed, 9 Paige, 446 ; Curtis v. Tyler, pay the same should be reversed, in which the court id. 432.

concurred, except Earl, J., dissenting. In his elaborate opinion, in Vrooman v. Mrs. Tur- The case thus decided is a clear and satisfactory ner, Allen, J., in commenting upon the principle exposition of the equitable principles governing the which governs such cases, observes : “The rule liability of grantecs where the grantor has never which exempts the grantee of mortgaged premises assumed to pay the mortgage sought to be foresubject to a mortgage, the payment of which is as- closed. sumed in consideration of the conveyance, as be- In the view taken of the Cite under considera

room.

tion, the Court of Appeals did not pass directly is, sometimes, a partial retention of the menses after upon the defense raised as to the defendant being a the main flow has ceased; he refused to answer unless married woman and relieved from the covenant

reasonably compensated before testifying as a medical

expert. He refused to answer another question, saythereby. It was not necessary. We will, however,

ing that this answer would depend upon his profesin addition to the authorities cited above, refer to

sional knowledge of the subject, and he would not give the Manhattan Brass and Manufacturing Company v. it without being paid. Henrietta Thompson, 58 N. Y. 80, wherein Chief The court held that the witness was required by law Justice Church has written an exhaustive opinion on

to answer the questions without compensation other

than the ordinary witness fee, and the witness persistthat general question. His conclusions are as to

ing in his refusal to answer, he was committed as for a when married women's contracts may be enforced:

contempt, and thereupon took this appeal. (1) When created in or about carrying on a trade or

WORDEN, J. The question presented, being a novel business of the wife. 35 Barb. 78; Frecking v. Rol

one in Indiana, so far as we are advised, and an imland, 53 N. Y. 422. (2) When the contract relates

portant one, we have bestowed such time and care to or is made for the benefit of the separate estate. upon its consideration as its importance seemed to 36 N. Y. 600, and 37 id. 35. (3) When the inten- require.

It must be and is conceded that a physician or tion to charge the separate estate is expressed in

surgeon, when called upon, must attend and testify to the instrument or contract by which the liability is

facts within his knowledge, for the same compensacreated. 18 N. Y. 265; 22 id. 450 ; Moxon v. Scott,

tion, in the way of fees, as any other witness. In 55 id. 247.

respect to facts within his knowledge, he stands upon The act of 1862 (Laws of N. Y., ch. 172, p. 343), in an equality, in reference to compensation, with all

other witnesses. regard to married women, provides that they may

But the question presented is,

whether he can be compelled to give a professional trade or do business on their sole and separate

opinion without compensation other than the ordinary account; and gives a married woman, possessed of fees of witnesses. real estate as her separate property, the right to do In England, there is some diversity in the decisions ny act with reference to the same, with the same in respect to the question whether au attorney or medeffect as if she were unmarried. She may also sue

ical man is entitled to higher compensation for attend

ance as a witness than ordinary witnesses. This and be sued in the same manner as a feme sole. And

diversity, however, relates to witnesses required to as Davis, J., observes, in the case of Quassaic Na

testify to facts, and not to give professional opinions. tional Bank of Newburgh v. Charlotte A. Waddell, 1 In respect to professional opinions, we are not aware Hun, 131, the law takes off for her protection all of any diversity of decision. In note 2 to section 310, the embarrassment of the married relation in respect

1 Greenl. Ev., 13th ed., it is said: "Au additional com

pensation for loss of time was formerly allowed to of separate real estate, and makes her in regard to

medical men and attorneys, but this rule is now exit a feme sole, pro hac vice, and it continues that

ploded. But a reasonable compensation paid to a peculiar condition in all matters having relation to foreign witness, who refused to come without it, and sepa rate property as well where she is sued as where whose attendance was essential in the cause, will, in she sues.

general, be allowed and taxed against the losing party. We have thus reviewed the points and the law

See Lonergan v. The Royal Exchange Assurance, 7

Bing. 725; S. C., id. 729; Collins v. Godefroy, 1 B. & presented in the case of Vrooman v. Mrs. Turner

Ad. 950. There is also a distinction between a witness (not yet reported), and have presented authorities

of facts and a witness selected by a party to give his bearing upon the principal questions involved, and opinion on a subject with which he is peculiarly conbelieve we have touched upon and cited all of the versant from his employment in life. The former is authorities of value on the general issues discussed. bound as a matter of public duty to testify to facts

JOHN F. BAKER.

within his knowledge. The latter is under no such obligation, and the party who selects him must pay

him for his time before he will be compelled to testify. RIGHT OF PHYSICIANS TESTIFYING AS EX- Webb v. Paige, 1 Car. & Kir. 23." The case of LonerPERTS TO COMPENSATION.

gan v. The Royal Assurance, referred to in the above

note, was not the case of a witness called to give a SUPREME COURT OF INDIANA, NOVEMBER, 1877.

professional opinion, but the witness was a foreign sea

captain, without whose presence the plaintiff's attorBUCHMAN V. STATE.

ney

" deemed it unsafe to trust the trial of the cause While a physician or surgeon, when called upon, must at

to written depositions, so long as he could prevail on tend and testify to facts within his knowledge for the the captain to remain in England to give his evidence same compensation in the way of fees as any other witness, he cannot be compelled to give a professional

personally on the trial before the jury; inasmuch as opinion without additional compensation. Accord- the demeanor and manner of Captain Moffatt's giving ingly a commitment of a physician for refusing to testify as an expert in a criminal case without reasonable

his evidence before the jury might have great weight compensation therefor held erroneous.

with the jury, in addition to his intelligent and genA PPEAL from an order of commitment. The appel- tlemanly appearance.” Tindal, C. J., said, amongst

lant, Dr. Buchman, was called to testify as a other things: “But the general rule has been that witness at the trial of one Hamilton for rape. He was

when witnesses attend under a subpæna, none receive asked whether or not, in female menstruation, there any allowauce for loss of time, except medical men and attorneys. If that rule were to undergo revision, with the right claimed by the appellant than as estabI cannot say that it would stand the test of examina- lishing that right. We come now to authorities more tion. There is no reason for assuming that the time directly in point. of medical men and attorneys is more valuable than The case of Webb v. Paige, cited in the above note that of others whose livelihood depends on their own from Greenl. Ev., decided in 1843, was an action for exertions. But that rule is not applicable to the case negligence in carrying goods. A witness was called of a foreign witness, who may refuse to attend if the for the plaintiff to speak of the damage sustained by terms he proposes are not acceded to. If he asks only the goods, consisting of cabinet work, and the expense what is reasonable, I cannot see why it should not be that would be necessary to restore or replace the allowed, and be charged to the unsuccessful party." injured articles. The witness demanded compensa

The case which is supposed to have exploded the tion, and Maule, J., in deciding the point, used the rule that attorneys and medical men are to have language set out in the latter part of the note above additional compensation for loss of time, is that of cited from Greenleaf. The witness, upon receiving an Collins v. Godefroy, cited in the above note. In that undertaking for his pay, was examined. This is the case ('ollins sued Godefroy, to recover a remuneration only English case that bears directly upon the point, for plaintiff's loss of time, in attending as a wituess, of which we have any knowledge. The American under a subpoena issued by Godefroy, in a case in

cases are not numerous, and we proceed to notice such which Godefroy was a party. The plaintiff attended as there are. six days as a witness, but was not called upon to give In the Matter of Roelker, Sprague, 276, during a trial his evidence. Lord Tenterden, C. J., said: “If it upon an indictment, the district attorney moved for a be a duty imposed by law upon a party regularly sub- capias to bring in a witness, who had been subpoenaed panaed to attend from time to time to give his evi- to testify as an interpreter. But Sprague, J., said: dence, then a promise to give him any remuneration “A similar question had heretofore arisen as to exfor loss of time incurred in such attendance is a perts, and he had declined to issue process to arrest promise without consideration. We think such a duty in such cases. When a person has knowledge of any is imposed by law, and on consideration of the statute fact pertinent to an issue to be tried, he may be comof Elizabeth, and of the cases which have been decided pelled to attend as a witness. But to compel a person on the subject, we are all of the opinion that a party to attend because he is accomplished in a particular cannot maintain an action for compensation for loss science, art or profession, would subject the same of time in attending a trial as a witness. We are individual to be called upon in every case in which aware of the practice which has prevailed in certain any question in his department of knowledge is to be cases of allowing as costs between party and party so solved. Thus the most eminent physician might be much per day for the attendance of professional men, compelled, merely for the ordinary witness fees, to but that practice cannot alter the law. What the attend from the remotest part of the district, and give effect of our decision may be is not for our considera- his opinion in every trial in which a medical question tion. We think on principle that an action does not should arise. This is so unreasonable that notbing but lie for a compensation to a witness for loss of time in uecessity can justify it. The case of an interpreter is attendance under a subpoena.”

analogous to that of an expert. It is not necessary to But, notwithstanding the case above noticed, the say what the court would do if it appeared that no rule allowing professional men additional compensa- other interpreter could be obtained by reasonable tion was followed in England as late as 1862. In the effort. Such a case is not made as the foundation of case of Parkinson v. Atkinson, 31 L, J. (N. S.) 199, the the motion. It is well known tbat there are in Boston master had allowed the expenses of an attorney who many native Germans and others skilled in both the was called as a witness, but did not give professional German and English languages, some of whom, it may evidence, on the higher scale allowed to professional be presumed, might without difficulty be induced to witnesses. On motion for a rule to show cause why attend for an adequate compensation." the taxation should not be reviewed, Earle, C. J., In the case of The People v. Montgomery, 13 Abb. said: “We do not approve of the rule which is said to Pr. (N. S.) 207, Montgomery was indicted for prevail in criminal cases, that if a surgeon is called to murder. The district attorney had procured the atgive evidence not of a professional character, he is

tendance of Dr. Hammond as a witness to testify proonly to bave the expenges of an ordiuary witness. We fessionally in the case, who was paid, or was to be think the master was quite right in allowing the ex- paid, the sum of $500, for his attendance and services penses of this witness on the higher scale.” So, also, as such witness. This was complained of as an irreguin the case of Turner v. Turner, Jurist, 1859, p. 839, the larity. The court said, E. D. Smith, P. J., delivering master allowed one Marcus Turner, a barrister, of the opinion: “We do not see that the calling of Dr. London, one pound and a shilling a day for attendance Hammond as a witness and the payment to him of a as a witness. The Vice-Chancellor said: The right sufficient sum to secure his attendance at the court of a professional mau to one pound and a shilling per during the trial was in any respect an irregularity, or day was founded on the fact of his being abstracted did any wrong to the prisoner. It seems to us that from his functions. It was unnecessary to say what

the district attorney was acting in the line of his classes came within the definition ‘professional man,' duty as public prosecutor in seouring the attendance but there was no doubt that a barrister did, and if of a proper medical witness of high repute to meet the subpoenaed as a witness, he had a right to receive the distinguished medical experts, which he knew the

* * The remuneration, small or scanty as it was." The mo- prisoner expected to call on his side. tion to vary the taxation was overruled.

district attorney, it is true, might have required the The foregoing cases, however, do not decide the

attendance of Dr. Hammond on subpæna, but that point involved here, and they have been noticed rather

would not have sufficed to qualify him to testify as an with a view of showing that they are not in conflict i expert with clearness and certainty upon the questions

*

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