Walker v. Fields ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

1. The court, so far as the bill of exceptions shows, made no decision as to the admissibility of Dawson’s testimony. Had this evidence been rejected, as it probably was, it -would have been, right. It was a mere matter of opinion; and ho was not a mill-wright but a miller only.

2. We concur with the court that Thomas A. Adams, as an expert, could only give an opinion upon the fads testified to by Dawson, Key and Edge, and not upon their opinions.

3. The rejection by the court of the sur-rebutting testimony of McNeely, Gresham, Grafton and Smith, was wrong. True, it was cumulative; but the defendant could not have anticipated the proof offered by the plaintiff in rebuttal to establish the fact that the mill was built according to contract. It behooved him, therefore, to support his defence by additional evidence, and he had a right to do so, especially as it does not appear that any of the plaintiff’s witnesses had left the court; or that he was hurt by the direction given to the testimony.

Judgment reversed.