plaintiff and the defendant, on the basis of which padnership and which relation the plaintiff can maintain this suit to obtain an acconnting by the defendant as to his dealings and transactions respecting the property in question from the commencement. The bill prays for such an accounting. It cannot be had on affidavits, onan interlocutory motion. It must be had in the orderly progress of a suit. I am not prepared to hold now that the suit is barred by the two years' statute of limitations. On the foregoing basis, the case made by the bill is not satisfactorily refuted by the defendant. If the threatened sale of stock takes place, the injury to result to the plaintiff from the sale cannot be remedied. In such a case a temporary injunction is granted. U. S. v.· Duluth, 1 Dillon, 4:69, 4:74:. .The defendant has i,n his hands themine and all the property, and the effect of the injunction is only to prevent him from changing the status of the plaintiff in respect to the property while the suit is pending. The injunction contained in the order of May 31, 1881, will be continued.
UNITED STATES V. MILLS.
(Circuit Court, W. IJ. Wisconsin.
1 GOVERNMENT LANDs-INNOCENT TRESPASSER. It is a good defence to an action of trover against an innocent trespassel
upon government lands, for the value of timber cut by him therefrom, that he afterwards entered the land from the government, paid the price therefor and the costs up to the time of entry.
2 . .MEiSURE OF DAMAGES.
When a wilful trespasser cuts and rem oves timber. and converts it into logs ties, or piles, the measure of damages is the market value of the latter, in cash, at the time and place of their sale delivery, and not the value of the stumpage merely.
This was an action of trover brought in the above court by the United States against the defendant to recover the val!1e of a quantity of pine timber alleged to have been cut and removed from lands of the United States by the defendant. The case was tried at the special December term, 1881, of said court, at Madison, before Bunn, D. J., and a jury, H. 11,1. Lei()is, U. S. Atty., and J. M. Bingham, for the United States. E. E. Bryant and J. M. Morrow, for defendant.
UNITED STATES V. MILLS.
D. J., (charging jury.) The questions of law in this case are quite simple, and, for the most part, have already been decided by the court. All the questions of difficulty are questions of fact, which are for the jury. So that the burden and responsibility of a proper and judicious determiDJltion of the case rests with you. The first question to which your attention will be called is, has the defendant, ,Mills, cut and carried away, and converted to his own use, timber from government lands in the manner charged? If he has, then your verdict should be against him, unless suoh .cutting was wholly done, without knowledge or fault of defendant, upon lands which he afterwards entered and paid for. There are two pieces of government land upon which the defendant acknowledges he cut timber. .But he alleges and swears that he did it under the belief that he had a right to cut, because he owned the land. The N. t of the S. E. :! of section 4, township 20, range 9 W., he admits cutting the timber from. rt is in evidence he afterwards entered this land from the government and paid the price, and, so far as this 80 acres is concerned, you will determine from the evidence whether, aBhe time he cut the timber, he supposed: he had entered the land as he testifies, and that he took away the timber under that belief, and without fault or knowledge on his part that the land belonged to the United States.. If you find in his favor on this question, then, under the law of congress,-act of June 15, 1880, (21 St. at Large, 237,)-having entered the land and paid the costs up to the time of the entry, he is excused from any liability for the trespass, and no verdict should be found against him therefor. The same principle and saille instruction are to the tie-cut- . ting on the N. W. N. W. section 22, where defendant admits the cutting, but swears that he supposed he had the right to cut it under a purchase from Van Tassel, and when he found it belonged to the he entered it and paid for the la.nd. On these two descriptions you will find specially,. as to each piece, whether the cutting was done innocently under the belief that defendant had the right to cut. If you find against the defendant on these questions, then, however your finding may be upon the rest of the case where the cutting is controverted, your verdict will be against the defendant for the value of the logs and ties cut and converted from these description,s. As regards the other lands in controversy, the cutting and conversion of the timber is disputed by the defendant, and it will become
686 your serious duty to determine, from the mass of evidence in the case, whether the defendant is guiltyof such cutting and conversion or not. The court cannot aid you iny0ur finding upon this question. It is one wholly of fact, to be found from the weight of evidence. The question will be, what do you believe from the ev,idence taken as a whole? How are you fairly convinced from the testimony? The evidence is apparently conflicting. Whether it be so or n'ot is for you to determine. If you find it conflicting it will be your duty to reconcile it if you can. If not, then it will be your duty to determine as to what part of it you will give most credit. And this question is not an arbitrary one, or to be solved by any technical rules, but is one resting in the sound discretion of the jury. You are to judge from all the circumstances in evidence, and developed on the trial, the weight to be given to the testimony of each witness. You have heard the witn.esses testify, have observed their manner on the stand, have noticed their bearing and disposition or inclination to state the truth or color it. You have observed their bias,if any, their interest, their means of knowledge in reference to the things of which they are called to apeak, their power of recollection, the consistency, or inconsistency 'Of their statements, and how they are corroborated and sustained or contradicted by other testimony, or by the conceded facts in the case. It is from these circumstances, and all others bearing on the question, that you are to detarmine what witnesses are entitled to most credit, 'and the weight to be given to the statements. of each and all. Evidence is that which satisfies and convinces the mind in regard to the real truth of the matters in issue; and if the statements of a witness ha,ve not this convincing quality the jury is'entitled to withhold from them credit. In fact, they cannot help doing so, because the giving orwithholding credence to the statements of another, whether under oath or not,: is not a matter of will or choice. The jury are convinced by what is fitted from 'its nature to convince,-that is, that which illustrates and elucidates the truth,-and the truth is the final object of your investigations; but, of course, you are to determine the truth from the evidence given on the trial, not from that whioh you may conceive might have been given. It is claimed, and it may be true, that the government has labored under disadvantage 'in having to call witnesses that have been more or less idehtified with the defendant or under his influence, and when they come up0n the'stand are what are called "slow" witnesses for the party callIng them. All I desire to say in regard. to, this :is what.
UNIT.ED STATES V. MILLS.
I have already said in general: you are to try the case on the evidence before you, not upon what you might suppose the witnesses could have testified if they would. You cannot presume that the witnesses might have sworn to mote than they have sworn to. rt devolves on the prosecution to satisfy you by at least a fair preponderance in the weight of the testimony both as to the fact of the cutting and the amount. If you are not satisfied from the testimony as to the fact of cutting, your verdict should be for the defendant. If you are so satisfied, the remaining question will be as extent of the cutting and value. And this you will determine in the same manner from the weight of evidence on that point. You will use your best judgment upon the testimony, and say what your coU:clusion is-how you are convinced. You cannot presume that the defendant has cut and converted more than the ev-idence shows he has. On the contrary, if the evidence shows to your satis· faction that defendant is guilty, you cannot excuse him from· the consequences of his own acts because the evidence also shows that others have trespassed on the same lands who have not been prosecuted or had justice meted out to them. "What's open D;I':tde to j!1stice that justice seizes." That istosay., when the guilt of .theperson charged is made apparent, he cannot be excused because others who are not charged have done the like and go unpunished. It may be quite evidl:!nt from the testimony that other persons have trespassed in former years upon the lands in question. With that you have nothing to do except to determine whether the cutting, or some part of it, charged upon thedefendant, was really done by him or was done by these other persons. The.defendant's evidence tends to show that it was all cut in former years by other trespassers. You must determine the facts. If you find that the defendant did cut and convert timber, as charged, the amount of damages he will be chargeable with is the value of the logs, ties, piles, or wood which he converted· at the time and place of its sale.: and conversion by him. The government is not confined in its measure of damages to the value of the stumpage ; that is, the value of the timber in the standing tree. On the contrary, as the defendant could get notitle to the timber by converting it into these but the logs, ties, or piles, after being cut, still belonged to the government, and might be seized and held by the government, the defendant will' be chargeable with the market value .i:q cash at the time and place of their sale and delivery. . ..
You are instructed to find a general and if this is for the plaintiff you will assess and find the damages the plaintiff will in such case be entitled to recover. You will also, according to a fonn of verdict which the court will hand you, find specially upon each of the tracts of land where cntting if'! charged, though yon will not be required to find separately the amonnt cut and converted from each, but simply whether or not the
d,(,fendant has cut alld converted.
Yon will also find specially, as directed, whether the cutting upon N. t s. 'Eo t and N. W. N. W. 22 was in good faith, un(ier the belief that defendant had the right from being the owner to so cut. Gentlemen, the further responsibility of the case lies with you. I am glad to know that you have given the utmost.heed to the testimony; and to the discussion of it by counsel. It only remains for you to give the case such further consideration as its nature and iUlDortance to the parties demand, and render a verdict which shall (10 justice to the law and evidence. Verdict for the plaintiff, $2,000.
Bl1l v. U. B. 4 Dill. 464, accord. See Single v. Schneide1', 30 Wis. 570.
(Circuit Couri, B. D. New York.
November 2, 1881.)
ATTORNEY-COMPENSATION FOB SERVICES-LIEN.
l'1'ima facie an attorney has a lien for compensation on the papers in his hands where he has rendered some services.
2. SAME-SUIT FOB COMPENSATION-CONTBACT.
The question whether there was such a contract between an attorney and his client that the former. having given up his employment, has no claim to be compensated, must be determined in a suit brought by the attorney to recover the compensation, the lien .remaining in statu quo meanwhile. If suit be not brought within a llmited time and diligently prosecuted, the court will order the papers to be given up.
Except by consent such a question cannot be determined by the court ill summary way. In re Paschal, 10 Wall. 433, cited and followed.
O. G. Patterson, for the motion. R. M. Sherman, opposed.
flUeported by 8. Nelson White, Esq., of the New York bar.