delivered the opinion of this court.
I am directed by the court to say that they approve of the opinion expressed by Judge Dorsey on all the exceptions in this case, except on the third and fifth exceptions of the appellant.
I am further directed by a majority of the court on the third exception, to say that they think the court below were right in the opinion by them expressed in this exception.
This court has, heretofore decided, that facts proved on a former trial by a deceased witness are admissible on a second trial of the same case. They would only be rejected on the presumption, that facts were proven on the first trial which were inadmissible as evidence. This we think we cannot intend; but the reasonable presumption is, that such facts were alone proved as were admissible, and it was proper the court should act on this presumption, upon the offer of the evidence, until the contrary appeared.
On the fifth exception the court are divided. Those of us who maintain that the evidence offered as to what sum was paid to Mr. Johnson was inadmissible, think that what was paid to or demanded by one attorney, was not evidence in the cause. We cannot judicially know the standing of any one member of the bar, or the circumstances under which he was paid, or demanded a given sum for his services. What is the *117usual and customary compensation for services of the like kind is admissible testimony, but what was paid to any particular individual, standing per se, is in our opinion inadmissible.