Miller v. Miller

Grason, J. delivered the opinion of the Court. . To the declaration in this case four pleas were filed ; to the second and third of which there was a demurrer, which was sustained by the Court, and it is contended that in this respect, there is error. The declaration alleged the title of the locus in quo to he in the plaintiff. The second plea is that at the time of the alleged trespass, or at any other time, the plaintiff had not exclusive possession of the premises, nor any possession.

This was no answer to the averment of title in the plaintiff and the demurrer was properly sustained. The third plea says that the defendant was the true and lawful owner of the land upon which the said trespass is alleged to have been committed, at the time of the alleged trespass, and had exclusive possession of the same. This amounts to nothing more than a denial of the title of the plaintiff, and was nothing more nor less than the general issue plea which was filed with the other pleas. There was therefore no error in the ruling of the Court-'on the demurrer to this plea.

During the progress'of the trial seven exceptions were taken by the appellant to the rulings of the Court upon the evidence and one to the granting of the first, third and fourth prayers of the appellee and to the rejection of ⁶²⁹ the first, second, third, fourth, fifth, tenth and twelfth prayers of the appellant. Some of these exceptions are not referred to in the appellant’s brief, and it may therefore he inferred that they have been abandoned, but, as this may not he the case, we shall proceed to consider them in their order. 1st Exception. The defendant was examined as a witness for the plaintiff, and after proving that he had entered upon the premises in dispute and cut and taken away trees, and hoop-poles, and logs, and two thousand staves, he was asked what the staves were worth, for the purpose of showing the quantity of the timber exit and its value. This question was objected to by the defendant and the objection overruled and the question allowed to be put, and the defendant excepted.

In order to fix the amount of damages sustained,’it was incumbent upon the plaintiff to show that trees were cut, and their value. Such trees as are suitable for staves are more valuable thanfordinary trees not suitable for such purpose and the question was admissible for the purpose for which it was asked. The answer of the witness to it, that the staves were sold for eight dollars and a half per thousand, and that the trees from which they were made were worth half as much as the staves, shows how pertinent and proper the question was. 2nd Exception. This exception was taken to the ruling of the Court by which the plaintiff’s attorney was permitted to read the declaration to the witness, Jacob Miller, the plaintiff, for the purpose of directing his attention to that part of the tract called “ Last of March,” which was in controversy in this suit, in order that his evidence might be confined to that part, he having testified that he knew the tract called “ Last of March.” The declaration is part of the record of the case, which, even the jury, have the right to take to their room when they retire to make up their verdict, and we cannot perceive any objection to its ⁶³⁰ being read to the witness, for tbe purpose for which it was permitted to be read in this case. 3rd Exception.

After the equity proceedings in No. 3254, in the case of Jacob Miller against Henry Miller had been offered in evidence, and the witness had testified that he had bought the land in dispute and paid for it, he was asked how long he had been in possession of it, and this question was objected to, and upon the Court permitting it to be asked, this excejition was taken. We cannot perceive that it was liable to any objection, and the ruling of the Court was perfectly correct. 4th Exception. This exception was taken to the admission in evidence of a deed from William P. Maulsby, Jr., trustee. As the deed is not in the record we must presume that the ruling of the Court below was correct.

Gent vs. Lynch, 23 Md., 64 . 5th and Qth Exceptions. In these two exceptions the same witness was asked by defendant’s attorney upon cross-examination, “ what was the value' of the land when he purchased it? ” and,