Louisa D. Wehle v. John G. Haviland et al.

Louisa D. Wehle v. John G. Haviland et al. (Decided in January, 1872.) Where property is taken out of the possession of the trespasser after the trespass, by virtue of valid legal process against the owner, and the property is applied under such process to the use of the owner, those facts may be shown in mitigation of damages in an action for the trespass. Such facts must, however, be specially pleaded. The opinion of an expert is only admissible or of any weight when the facts or particulars upon which it is predicated have been so distinctly proven that any other expert who heard the facts testified to, or to whom they were communicated, would be, in a like manner, enabled to make an estimate, or give an opinion. The general statement by a witness of his opinion or conclusion, unless the facts and particulars upon which .it is founded appear to be within his knowledge, and the process by which his conclusion is arrived at is shown, is improper testimony to be admitted on a trial, and amounts, at most, to mere conjecture. There is no contribution between joint wrong-doers. In actions ex delicto, it is in the discretion of the jury to allow interest or not, but the plaintiff is not entitled to it as a matter of right. Reported in full in 42 How. Pr. 899. Appeal by defendants from a judgment entered on the verdict of a jury at trial term. C. Bainbridge Smith, for appellants. Charles Wehle, for respondent. [MAJORITY] Opinion of the court by J. F. Daly and Robinson, J. J. Judgment reversed. Present, Robinson and J. F. Halt and Hoew, JJ.