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The State ex rel. v. Maxwell-Opinion of Court.

after set forth, to-wit:

A. E. Maxwell, Judge of the Circuit Court, J. P. Jones, attorney, G. O. Brosnaham, Isabella Brosnaham, brother and mother of wife, John Brosnaham, (brother) F. C. Brent and Mary Brent, his wife, (heir to estate) David Shuttleworth, (heir, &c.,) and B. F. Kenshaw, son of my wife."

The Chancellor is here accused by the relator of joining. and encouraging a combination against the relator to control property in which he claimed an interest. The evidence discloses further that the papers in the divorce suit which his wife had brought against the relator were removed from the files of the court by the relator and not accounted for when he was called upon to explain the loss. It was his duty, at least, to disclose the name of the person to whom he had entrusted the papers. The Chancellor and his authority were defied. The Judge disclaimed any combination of the character charged. There was no evidence of such combination, and the court was obliged to take such action as was necessary to preserve its own respect and enforce respect from its officers.

An investigation of this character is at no time pleasant, but our duty in this respect is not limited or controlled by the line of convenience or inclination. We do not see how the court could have well done otherwise than take the action it did.

The demurrer is overruled, the peremptory writ denied, and there will be judgment for the respondent.

At the same term, or a subsequent day, an order was made, on motion of relator, allowing him to file a "further pleading." and serve a copy of the same on respondent, and that respondent take issue thereon within five days from such service. Relator filed a paper setting up both a gencral and special replication, and respondent on March 13,

Skinner v. Pinney-Syllabus.

1882, joined issue on the general replication, and moved to strike out the special replication.

At the June Term, 1882, the case was dismissed, on motion of respondent, for want of prosecution and "at the cost of the petitioner." The motion for judgment of dismissa! was on the ground that relator had taken no steps to prove his petition.

EMORY F. SKINNER, APPELLANT, VS. JOHN PINNEY, AP

PELLEE.

1. The statute of this State provides that a certified copy of a deed duly recorded shall be received in evidence “in the same manner as the original thereof may be," and with the like force and effect. The execution of an original deed duly acknowledged, presented in evidence by a party claiming under it, most be proved, and therefore a certified copy is not per se evidence of the due execution of the original.

2. The statute does not make the acknowledgment or proof of a deed for the purpose of registration evidence of its due execution for any other purpose. (Hogans vs. Carruth, 18 Florida, 593.)

3. When A. trespasses upon land in the possession of B. and cuts down trees, making them into logs and takes them away from the land, B. may maintain an action of trover for the conversion of the logs.

4. A trespasser acquires no property in such logs by having bestowed his labor upon them, though their value is enhanced by the labor.

5. The measure of damages in an action of trover for logs taken from land in the plaintiff's possession is the value of the logs at the time and place of conversion with interest. The conversion is complete when the logs are taken away from the premises.

6. Proof of possession of land by the plaintiff is sufficient to enable him to maintain trover for logs taken from the land.

1. A defendant in trover cannot set up title to the property in a third person, unless he connects himself in some manner with that title.

Skinner v. Pinney-Statement of Case.

Appeal from the Circuit Court for Escambia county. This was an action of trover, brought by appellee against appellant for the conversion of a quantity of logs. Defendant pleaded not guilty, and further that the plaintiff was not the owner of the logs nor entitled to the possession. The cause was tried in April, 1882.

Plaintiff testified that he owned land on Garzon's Point, in Santa Rosa county, and had owned it for twenty-three years; was put in possession of it before the war by the United States Marshal as the result of a suit by plaintiff in the United States Court to recover the land, and has been in possession by agents ever since. Joseph Bonifay was his agent up to two or three years ago, and Peter Schaff has been since in possession for plaintiff. The bill of exceptions recites: "And the plaintiff further to prove the issues in his behalf by his attorney, after having, in connection with his possession of said tract of land as aforesaid, made proof to the jury that the title to said tract of land had ceased to be in the United States and become vested in one Manuel Bonifay by act of Congress, offered, and having offered and read to the jury deeds deraigning the title of said land from said Bonifay to one J. L. White," offered in evidence certified copy of the record of a paper purporting to be a deed from Joseph L. White to John Pinney of the said lands, dated 24th November, 1858. The paper was certified by the Clerk of Santa Rosa county. The defendant objected to the reception of this paper in evidence upon the ground that the plaintiff had not offered proof of the execution of the deed of which it purported to be a certified copy. The objection was overruled and the paper received, to which ruling an exception was taken.

Plaintiff further proved by Peter Schaff that he had resided on Garzon's Point, on land belonging to the plaintiff,

Skinner v. Pinney-Statement of Case.

about seven years with his father-in-law, who, during that time, had been the agent of the plaintiff to look after the lands, and that since the death of his father-in-law, two or three years ago, he had been the agent of the plaintiff for the same purpose. He lived upon and had enclosed fifteen acres in one corner of the Pinney land, and other persons had enclosed about 25 acres, and the rest was unenclosed; that prior to December, 1880, defendant begun to cut timber logs on Pinney's land. He warned him not to cut timber there, and that the land was Pinney's. He continued cutting, and cut and hauled to the waters of Blackwater and Escambia bays, on the sides of Garzon's Point, 1,423 logs, where they were put into the water and taken away by defendant's tow-boat. He had measured 300 or 400 of the logs and they averaged 200 feet board measure, and he estimated the balance to average the same measure

ment.

George W. Wright testified that logs were of the value of $6 to $7 per thousand superficial feet, board measure, in the water of Blackwater bay, at Garzon's Point, in December, 1881. Defendant objected to the question eliciting this testimony on the ground that the value at that place was not the measure of damages as against the defendant and was irrelevant, and the objection was overruled.

The defendant testified that he claimed the land on Garzon's Point claimed by the plaintiff where the trees were cut, and that it was known in the United States surveys as Sections 20, 21, 22, 24, 25 and parts of Sections 27 and 28, T. 1, R. 28, W., and that he claimed the lands under certain certificates of sale and deeds of the Commissioner of Lands and Immigration and the Trustees of the Internal Improvement Fund, dated in 1880 and 1881, before the cutting of the timber.

Defendant offered to prove by himself that on learning

Skinner v. Pinney-Statement of Case.

that the said land contained timber trees he endeavored to find to whom the land belonged, and found that the records of the county did not show the ownership; that he was informed by the Register of Public Lands that they belonged to the State of Florida, as shown by a map sent him by the Register upon which the lands on Garzon's Point were laid out in townships and sections according to the United States surveys, and the sections were marked on the map as State property; and he then bought the lands from the Trustees of the Internal Improvement Fund. The plaintiff objected to the testimony offered as not admissible to affect the question of damages, and the court excluded the testimony.

Defendant also offered to prove the market value of the standing trees at the time they were cut and hauled away, and upon plaintiff's objection the court excluded the testimony. Defendant also offered to show the market value of the trees after they were cut at the time and place of cutting, which testimony was excluded by the court. Defendant further offered to prove by Henry Lewis, for the purpose of establishing a measure of damages, the market value of the logs in the waters of Pensacola and Escambia bays, when and where placed by defendant, to have been $5 per thousand, and that the expense of cutting and hauling from the place where cut to those waters was $4.50, and the expense of cutting was ten cents per tree; but the plaintiff objected, and the court refused to receive the testimony. To these several rulings defendant excepted.

The Judge charged the jury "that the measure of damages in this action under the count in trover was the value of the property at the time and place of conversion, and that if the jury found that the defendant cut the logs of plaintiff on plaintiff's land and hauled them off of said land the conversion was complete only when the logs left.

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