JONGORY 11. UNITED STATES.
11. UNITED STATllIl.
(OfrcuU Oourt, W. D. LowlBf.ana. January 5, 1891.)
REVIEW ON ApPEAL-EVIDENCE NOT PRESERVED IN RECORD-INSTRUCTIONS.
Where no evidence is ureserved in the bill of except.ions, an instruction directing a verdict for the plaintiff will not he questioned on appeal
SUIE-ERROR NOT COMPLAINED OF.
Where a defendant brings error, and the plaintiff does not complain of the judgment. though it is for less than he is entitled to, the error cannot be corrected in the circuit court. A wItness may, when testifying, refresh his recollection by the use of a memorandum made by himself. .
WITNESS-USE OF MEMORANDUM.
At Law. Error to district court. J. L. Bradford, for plaintiff in error. M. a. Elatner, U. S. Atty., for the United States.
& Miller in 8olido for the conversion of a lot of trees or timber cut off of
The United States sued Joseph J. Kingory and Perkins
the public lands by trespassers. The defendants appeared and filed a general denial, and pleaded the prescription for one year. On the trial of the case the jury found the following,verdict: "We, the jury, find as special facts that the defendants are liable for one hundred and fifty logs. averaging two hundred and fifty feet each, the lumber thereof being worth at the mills at Lake Charles, where the defendants purchased them. six dollars ($6) per thousand, and the trees standing on land being worth fifty cents each; that defendants are liable in solido to the plaintiff; that defendants did not know that the trees were cllt by trespassers on the government land." Upon this verdict a jullgment was rendered against Joseph J. Kingory fl,nd the firm of Perkins & Miller, composed of Allen J. Perkins and C. H. Miller, jointly and severally in the sum of $150, with legal interest from December 11,1885, until paid, and all costs of suit. From this judgment the defendants in the court below prosecute this writ of error. There is no assignment of errors in the record, but in the argument plaintiffs in error assign errors of court in the admission of evidence and in charging the jury, as shown by the two bills of exception allowed on the trial, to-wit: "(1) Be it remembered that on the trial of this cause the court charged the jury that the testimony of the witnesses for the government must be taken for true. since the defendants had not offered evidence to contradict it, to which charge defendants excepted; and be it further remembered that the court directed the jury to find a spl>cial verdict for the plaintiff against the defendants for one hundred and fifty logs of an average measurement of two hundred and fifty feet per log, of the value of six dollars ($6) per thousand at the mill, or fifty cents per standing trees, to which charge defendants excepted; and defendants tender their bill of exceptions in due time, and ask that same be signed and made of record. The court charged the jury that. the defendant haVing offel"ed no t(;'stimony in his behalf, and the court believing that it fully app,ears the evidence given by the plaintiff's witnesses
that the plalntlfi' had fully made out his Cllse, the jury were lIuthorlzed and were directed to find for Be itremembe"nld that on the trial of this cause tIle plaintiff offered the testimony of L. J. Hickman to prove the locus in quo, l1aid Hickman, being ,on,the stand, proposed to testify from papers which he had in his hands, to which defendants, by counsel, objected. on tbegrounds that the"witnesses must testifYfrom their recollection, and can,lIot be permitted to testify from memorandum;, nevertheless the cOllrt overruled the objl'ction, and permitted said witness to testify, and on his it, appeare4 from his evidence that he was a special agent of the inter i'qlj"l)epf,l,fthlent fortbe of depredations ,on the public lands, and that he had made a report to the govern ment, and had mrmoranda of such report, and tbat without the aid of said report or memoranda of sucb report he'WlIsllrilihle to tl'stifYllS to the matters at is,sne; and to the recl'ptlon of said testim0l1Y defendants object. and their objection was oVl'rruled by the court, on the ground that in law there can be no objel·tion to a witness who made and hilS memoranda in his possession, rl:ldting matters about which he is being questioned. reading the same to refresh his ml'mory in order to be accurate in his testimony matters; to which ruling defendants excepted and tender this bill," etc.
, It will be noticed that no evidence whateveris recited in the first bill of exceptions. That the case, .it is impossible forthis court to say whetl:ler or not there was error in the charges given in sAid bill. ,The court WillllOtgO outside. of the bill of exceptions to find the evidence offered in the case. See U. S.v. Wingate, lately decided by this court in thE! district of Texas, reported ante, 129. ,Tl:J.e second bill of exceptions recites no error on the part of the court. The rule is universal that a witness may refresh- his recollection with his own memoranda. 'On the verdict as rendered, following the rule of damages in Wooden- Ware Co" case, 106 U. S. 432,1 Sup. Ct. Rep. 398, the go\'emment was entitled to a verdict of $225, while it seems that only a judgment for $150 was rendered. As the United States does not complain, this arror cannot be corrected in this court. For the foregoing reasons it is ordered. adjudged" and <iecreed that the jud!!:ment of the district court be, and the same 1s hereby, affirmed, with costs.
UNITED STATES V. PERKlNS tit
e, , :;
January 15, 18.9L)
L PuBtid LAi-rn8'-CmrTlNG TnmlllR-StlllSEQUENT PUROJIASE. ' ; Wbere' a homesteader, who has' never had possession of the land Included In his homestel,\d clalm.and;wlJosl:I eut!;y the bmd frQm the government, suc4., does, not pallS title to tim!;ler ,WhiCh he· had cut from the land before' his purchase, anll after he had learned that his homestead entry was invalid.','·;,' , , ' ' . '," "
.. EilliB.....M!:A8uBB OP ,DAMAGES.
: In au ,actiOD bythe.United Btate.s.forthevalue of timber bought by defendant froID',. who l1ad, kl),owingly cnt it from the publiQ lando the measure of daiilagea is the value of the timber at the time of the purchase.