2. Complainant next to the charge for printing the record and brief, in compliance with the rul«:Js of this court. Whatever may be th!'l decisions in other circuits, it is settled in this circuit that this is a proper item of disbursements. Cir. Ct. Rule May 18, 1878; Dennis v. Eddy, 12 Blatchf. 195. . 3. The defendants also have appealed from the clerk's refusal to allow more than one traveling fee to the same witness, 'when the taking of his testimony required his attendance on several different occasions, and intervals between the witness' successive appearances were so long as to warrant his return to his home, and therefore require traveling expenses to secure his attendance on the adjourned day. In only one of these cases, however, does it appear from the record that such adjournment was caused by the sole fault of the complainant. For that attendance, the additional traveling fees may be allowed. In all the other cases the clerk's taxation is affirmed.
V. UNITED STATES.
(Circuit Court, W.D. LoutBiana. January 1I,189L)
Where, In an II-ction by the United States to recover the value of logs cutonpubUo land, the plalntl1f's evidence shows that the defendant purchased from the trespasser and converted to his own ulle a large number of logs; among which were some of those cut from the public land, the burden is on the defendant to show all the logs iO bought by him were not so cut. Where the logs so cut were mixed in the river with a large quantity of other logs, so that the identical logs could not be conveniently the United States thereby acqUired a proportionate interest in the entire mass of logs, under Rev. Civil Code La. art. 528, which provides that, "when a thing has been formed by iI. mixture of materials belonging to different proprietors, . * if the materillo1s cannot be separated without inconvenience, their owners acquire bl common the pro rata of the thing...
TIMBER CUT ON PUBLIC L.um-BURDEN 01'
.. OoNFU810N ot!' GOODS.
At Law. Error to district court. J. L. BradfrYrd, for plaintiffs in error. M. El8t.ner, U. 8. Atty., for defendant in error.
PARDEE, J. The United States brought suit in the district court for this district against the defendant Mrs. Norris, as executrix of Mrs. Mafor the sum of$1,507, with legal interest from judicial de:. mand for the manufactured value of certain .logs unlawfully and tor:tiously cut and removed during the summer and fall of 1884 by one George Airhart, in Calcasieu parish, a knowing and willful trespasser upon public lands of the United8tates,wbich said logs cut and reo. JDoved "era by said Airhart Bold and delivered to the f3llid Mrs. Jones, ahd by her conyerted to her own T4e petitioll charged .· that,· MJ'$.
Norris was liable as executrix of Mrs. Jones, and individually as one of the heirs of Mrs. Jones. The defendant appeared, and filed exceptions to the plaintiff's petition: (1) That, as she was sued as one of the heirs of Matilda B. Jones, the other co-heirs should be joined as the defendants; (2) that as executrix of Mrs. Matilda B. Jones, if liable at all, [all of which was denied,] she, the said executrix, is only bound to make civil reparation for the same, and is not bound for punitive damages. Thereafter the court ordered "that the exceptions filed herein in behalf of defendants stand as an answer." A jury being impaneled, the cause was heard and submitted, the jury finding a special verdict as follows: "We find special facts that 30a logs were cut by Airhart from public lands as a tr!'spasser; that besides this 300 logs he cut 300 froIn his own land; that he put the 600 into the river; that Norris, the defendant, bought five hundred and fort,y of said GOOlogs from Airhart; that Norris paid Airhart $520 for the lOgS (540) bought from him; that $520 was paid for the whole of the logs, and Airhart received from Norris, defendant, one-half of the $520.00 for logs cut by Airhart as a trespasser, and is liable therefor to plaintiff; that the 300 logs eut by Airhart as a trespasser, 270 of which reached Norris, defendant, and which were paid for by him, averaged 225 feet to the log, worth five dollars per thousand, and 50c. stumpage for 135 trees; that Norris in purchasing from Airhart was in good faith." Thereupon the court rendered judgment in fawr of the plaintiff, and against the defendant, the executrix, in the sum of $243, with legal interestfrom May 13, 1887, until paid, and all costs of The amount of the judgmElDt seems to have been arrived at by calculating the number of feet in 270 logs at 225 feet to the log, and then by allowing $4 per thousand as the value for which defendant was responsible. If the verdict hlld been followed, the judgment should have been, in one aspect, for $260, the amount which Norris paid for the logs, and for which the verdict says the deHmdant is liable, or for the sum of $303.75, the actual value of the timber converted, at $5 per thousand, as found by the jury. This error, however, if erro.r it be, is one in favor of the. appellant, and she cannot complain thereof. On the trial of the case the court charged the jury as follows: "That if the jury are satisfied from the evidence that the logs, or any part thereof, allt'ged in the petition to have been sold and delivered to defendant or her agent, were, without any fault or act of hers or her agent, and before the same came into his or her possession and control, mixed up in a large mass of other logs of several thousand in number in such a way that the identical logs described in such petition could not be convenientlv separated from the mass, and that defendant, after such admixture. purchased and received deliveryof such 11 portion of the mass as had by the several owners thereof been set apart as equivalent to the pro rata interest therein of Gt'orge Airhart, then tbeyshould find for the government for the number onogs thus taken out of the mass by defendant, unless she can show by satiSfactory evidence that such number did not contain any part of the logs described in petition as cut from the particular lands therein set forth." To which charge the defendant excepted, and reserved a bill of exceptions, and the defendant requested the colirtto charge--·
NORRIS'll. UNITED STATES.
«That if the jury are satisfied from the evidence that the logs or any part thereof, alleged by the petition to have been sold and delivered to the defendant or her agent, were, 'any fault or act of or her agents, and before coming into her or her agents' possession and control, mixed up with a mass of other logs of several thousand in number in such a way that the 'identical logs described in the petition could not conveniently be separated from the mass, and that defendant, after such admixture,. purchased and received delivery of such a portion of said mass as had by the several owners thereof been set apart as equivalent to the pro rata interest therein of George Airhart, then they should find only against the defendant for the number of logs thus delivered to defendant out of the general mass which the evidence shows were actually cut and removed from the lands described in petition." Which charge, as requested, the court refused to give, llnd the defendant excepted to such refusal and reserved a bill of exceptions. The defendant prosecutes this writ of error, and assigns as error the charge as given, and the refusal of the court to charge as requested. Appended to the bills of exceptions is the following statement by the court: "In this case it was shown by the evidence, not in any way contradicted by the defendant, thap George Airhart cut from public lands, as a trespasser thereon, a number of logs; that he put all the logs so cut in the river, and in the usual way they were floated in small cribs or single logs a distance uelow, where a man employed, not as agent of anyone, in the business of collecting and booming timber, caught the logs so cut by Airhart, and a large lot of other logs. and boomed them together. The Same man put all t1lP logs, several thousand in number, indiscriminately into cribs or blocks of logs, putting some logs of one brand with some of another brand into the same crib. Then the defendant Norris became a purclmser of a number of these cribs of timber, and in settlement for the Dumber purchased by him he paid Airhart for number of logs or feet of timber whkh he had, as was not denied, put into the river. The logs purchased by the defendant were all, eaoh of them, branded in the mark of their respective owners. It was shown that the m<ll\ who boomed the several thousand logs and cribbed them kept a list of the different brands in each crib. This list was kept by him in the interest of the purchasers and owners of the logs. It was shown, too, without that when the man had finished putting all the logs in the cribs, the several different owners of the logs agreed among themselves, instead of clai ming the logs of their respective brands. to take logs in the cribs shOWing sufl1cient feet in timber to satisfy their claims or shares in the whole number of logs so boomed and cribbed. On this undisputed showing the court charged that the plaintiff should recover for the w1101e Dumber of logs put in the river by Airhart as a trespasser on public lands, because defendant paid lJim (Airhart) for that number of logs; and, if defendant did not, as a fact, get any of the particular logs so cnt by Airhart, it was within his power, and it was incumbent upon him, to show how many he did get." Counsel for appellant complains that the effect of the charge as given is to relieve the plaintiff from the consequences of a plain failure to follow his property by competent evidence into the possession of the defendant, and to allow the plaintiff to eke out his case by requiring the dellmdant to prove affirmatively that the certain logs he did receive were not the logs unlawfully taken from the plaintiff by a third party. The plaintiffs' right to recover against the defendant is based upon the proposition that their property came to the possession of Mrs. Jones, v.44F.no.l0-47
and was eonvertedbyher to us6. AI! 'it is not charged that Mrs. Jones was a trespasser, the defendant cannot be liable simply because Mrs. Jones bolightand paid for the plaintiffs' property. She Dlust haTe also received it and converted it. . The charges given. and refused are based upon the proposition, and it, seems to be supported by the evidence as stated, that the logs claimed by the United States had been mixed up in a large mass of other logs, of several thousand in number, in such a way that the identical logs claimed by the United States could not be conveniently separated. The defendant bought a number of these cribs. It is a fair inference that in the cribs were some of the identical logs belonging to the government. In the nature or" things, the plaintiffs could not prove how many of those logs actually came to the defendant's possession. According to the statement of the court, it was within the power of the defendant to show how many of the identical logs claimed by the United States came into Mrs. Jones' possession. The statement of evidence shows that the information was kept in the interest of the purchasers, a.nd therefore the court says "it is a matter peculiarly. within defendant's knowledge." Wharton in his work on Evidence, (volume 1, § 367,) says: "It has been sometimes said that, when a fact is peculiarly within the knowledge of the pa.rty, the burden is on him to prove such fact, whether the proposition be affirmative or negative." In Ford v. Simmons, 13 La. Ann. 397, the supreme court of the state of Louisiana holds: "The onus probandi lies upon a party who is obliged to free himself from liability by proving a fact, When the knowledge of it is supposed to be more within his reach than that of his adversary." In Bowman v. McElroy, 15 La. Ann. 663, the. Slime cO,urt lays down the rule: "Where one of the parties to a suit has more means of knowledge concerning the matter to be proved than the other, the onus is on him;" citing, among other authorities, 1 Greenl. Ev. § 79. From an examination of the above and other authorities, lam of the opinion that in cases like the present the plaintiffs must make out a case of liability on the part of the defendant, and then, if the exact extent of the liability depends upon evidence not within plaintiffs'power to produce, but peculiarly within the defendant's, the ruling putting the burden or the defendant may be cautiously applied. In this case the plaintiffs show, bi a presumption fairly arising from the 1acts proved, that apart of their property came to defendant's possession, and was converted. They failed to show exactly the extent of the possession and conversion, but they show that defendant bought and paid for the whole amount in controversy. In this state of the proof, it seems as though the application of the rule in question would work very little if any hardship to the defendant. I am of the opinion, however, thatthe charge complained of has other grounds to support it. It is heretofore shown that the basis of the judge's charge was that the logs of the United States had been mingled indiscriminately with a mass of other logs, of several thousand in number, in such away that the identical logs could not be conveniently separated. Under a state of facts, the law of Louisiana provides as follows:
NORBIB .". UNtTED STATEs.
"When a thing has been formed by a mixture of other materials belonging to different proprietors. neither of which can be considered as the principal substance. if the materials can be separated. the proprietor, without whose consent. the mixture was made, may demand the separation. If the materials cannot be separated without inconvenience, their owners acquire in common the pro rata of t.he thing in proportion to the quantity, quality. and value of the materials belonging to each of them." Rev. Civil Code, art. 528.
Under this article, after the logs of the United States were commingled with those of other log-owners, so that the materials of the mass could not be separated without inconvenience, the United States acquired, in common with the other log-owners,. the pro rata ownership of the mass. The evidence shows that by agreement this same pro rata ownership was allowed to Airhart, the trespasser, and that this same share was sold to defendant's testatrix, and was received and converted lby her. It was for this share that the charge held the defendant liable. The suit is one in which the United States are following their property practically stolen from them, and they have the right to follow it through all the changes it went through, as long as identity was possible. Upou consideration of the whole case, this court is not prepared to bold that there was error in the charge given, or in the refusal to charge as requested. The jurlgment of the district court will be affirmed, with costs; and it is so ordered.
tl. UNITED STATES.
(Circuit COWI't, W. D. Lou1.8iana. January 5, 189L)
AmON POB TIMBER CUT FROlll PUBLIC LAND-VERDIOT.
In an action by the United States against an executor for the value ot' timber cnt from public land and sold by the trespasser to. defendant's testator a verdict finding that the trespasser cut the logs, and that defendant got them without finding that the logs were cut from the land described in the petition, or from government land, or that they ever came into the posses"ion of defendaD"s. testator, is insufficient to sustain a.JudgmeJ;lt agaiDst defendant.
At Law. Error to district court. J. L. Bradford, for plaintiff in error. M. O. E18tner, Dist. Atty., for defendant in error.
PARDEE, J. The United States brought suit against Mrs. Annie E. Norris, wife of William B. Norris, executrix of the last will and testament of her deceased mother, Mrs. Matilda B. Jones, to recover the value of certain, timber or trees cut from the public lands of the United States, viz·· N. E. ! of N. W. i, and N. W. i of N. E. i, sec. 7, T. S. 7, R. 7 W., La. meridian, N. O. land district, and also E. f of N. E. i of said section, being vacant public lands, by trespassers, and unlawfully converted by the said Mrs. M. B. Jones. in her life-time, to her own use. Said Mrs. Norris pleaded several exceptions and a generalde-