740

I'EDEBAL REPORTER,

vol. 44.

nial, arid thereafter, the case coming on before the court and jury for trial, thejury rendered the following verdict: "We. ,the jury, find as facts in this case that Parker cut two hundred and twenty logs from the land subseqUently entered. to-wit, S. i. N. E. i. s. E. i. N. W. i. sec. 7. T. S. 7. R. 7 W. This cutting was made in 18tl3 and 1884. anq that said.lands were entered and paid cash for entry September 27. 1886; that Parker never lived upon nor entered upon or improved the said lands. and is not Ii ving on said lands to-day; that Parker cut forty logs off E. i. same section. v3vant lands; that Norris thirty of the last-named logs and one hundred and eighty of the first-named logs. the logs averagmg two hundred and twenty-five feet. and worth five dollars ($5.00) per thousand at the bay where Norris received them. and fifty cents a tree standing. for one and five trees." Upon this verdict the court rendered the following judgment: "In this case. Uy reason of the verdict of the jury;and by reason of the law and the evidence being in favor thereof. it is ordered, adjUdged, and de· creed that the plaintiffs do' have and recover of the defendant, Mrs. Annie E. Norris. executrix. the sum of one hundred and eighty-nine dollars, ($H:l9.00,) with legal interest from May 13, A. D. 1887, until paid. and all costs of suit." From this judgment this writ of error is prosecuted. On the trial several bills of- exception were taken to the charges and refusals to charge on the part of the court. It does not seem necessary to consider them, because it does not appear that the verdict as above recited warranted any judgment whatever against the defendant. The 220 logs found to have been cut by Parker in 1883 and 1884 are not found to have been cut upon any lands describ,ed in the petition, and there is nowhere in the verdict a finding that any of the logs found to have been cut by Parker were cut off from government lands, or ever came to the possession of defendant's testatrix. The verdict does not appear to warrant any judgment whatever against the defendants. It is therefore ordered, adjudged, and decreed that the judgment of the district court in the case Of Mrs. AnnieE.Norris be avoided and reversed ,and that the case be remanded to thec:iistrict court, with directions to award a trial

de novo..

.

UNITED STATES

v.

NORRts

et aZ.

,Circuit Court, W. D. Louisiana. January 5, 1891.)
RBVIEW ON ApPEAL-EVI;DENCE NOT PRESERVED IN RECORD-INSTRUCTIONS.

Where, in an action by the United states to recover the value of timber wrong. fully taken from public land and sold by the trespassers to the defendant, the evidence not preserved in the bill of exceptions, the ruling on instructions as to measure of damages, based upon the assumption that defendant.boughtthe timber in good faith, cannot be assigned as error. Following U. S. v. Wingate. ante, 1211.

At Law. Error to distrtct court. M. ,a, Elstner, for the United States. 'J. L. JJr:adJord, for defendant in error.

UNITED STATES PARDEE) J.

V.

NORRIS.

741

The United States having sued the defendant Mrs. Annie

E. Norris, wife of William B. Norris, for the sum of $3,000, for the
value of timber unlawfully cut by trespassers on the public lands, and converted by the said defendants to their own use, recovered a verdict of $105, upon which judgment was rendered for the sum of $105, with 6 per cent. interest thereon, etc., from which judgment the United States prosecutes this writ of error. The only errors assigned relate to the charges and refusals to charge by the court, as set forth in the following bills of exceptions: "Be it remembered that upon the trial of this callse. the evidence being concluded. the court. among other things. charged the jury as follows. to-wit: · That. the defendant being in good faitb in the purchase of the timber in open market. and at the usual place for delivering logs to her mill. the government can recover against defendant only the value of one dollar ($1.00) per thousand at or on the land where the timber was cut ready fOl' hauling.' -to which ruling plaintiffs excepted. and took this their bill of exceptions. and ask the same to be entered of record. Be it further remembered that the plaintiffs ask the court to charge the jury as follows: 'If the jury finds that W. B. Norris. agent for tbe defendant. purchased the timber in question at or near his mill, or in the water-way leading thereto. they will find against the defendant in the sum of five dollars per thousand; or. if they find that he paid for said timber five dollars pel' thousand. they will find for that sum.'which charge was refused by the court; to which refusal, as well as for the charge given, plaintiffs excepted. and tender this their bill of exceptions, and ask the same to he entered of record." etc. These bills of exce"ption recite no evidence, and the case seems to be identical in all respects with that of U. S. v. Wingate, lately deciued in the circuit court for the eastern district of Texas, reported ante, 129, and for the reasons there given the judgment of the district court must be affirmed.

UNITED STATE.'l

V.

NORRIS et al.

NORRIS et al. v. UNITED STATES.

(Circuit Court, W. D. Louisiana. January 5, 1S91.)

M. O. Elstner. U. S. Atty. J. L. B1'adford, for Mrs. A. E. Norris.

At Law.

Error to district court.

PARDEE. J. The United States brought suit in the district court against the defendant to recover the value of certain timber and logs unlawfnlly removed by trespassers from vacant public lands, and by the defendants received and converted. After various exceptions were filed. which seem to have been disregarded because tiled too late, the deft>ndant filed a general denial. A trial was had before a jury. which fonnd a verdict for the plaintiff. and against the defendant, in the sum of $687.50, whereupon the defendant filed a motion for a new trial. on the ground that the verdict was excessive. and contrary to the law and the evidence. The motion for a new trial appears to have been dis-