that the plalntlfi' had fully made out his Cllse, the jury were lIuthorlzed and were directed to find for Be itremembe"nld that on the trial of this cause tIle plaintiff offered the testimony of L. J. Hickman to prove the locus in quo, l1aid Hickman, being ,on,the stand, proposed to testify from papers which he had in his hands, to which defendants, by counsel, objected. on tbegrounds that the"witnesses must testifYfrom their recollection, and can,lIot be permitted to testify from memorandum;, nevertheless the cOllrt overruled the objl'ction, and permitted said witness to testify, and on his it, appeare4 from his evidence that he was a special agent of the inter i'qlj"l)epf,l,fthlent fortbe of depredations ,on the public lands, and that he had made a report to the govern ment, and had mrmoranda of such report, and tbat without the aid of said report or memoranda of sucb report he'WlIsllrilihle to tl'stifYllS to the matters at is,sne; and to the recl'ptlon of said testim0l1Y defendants object. and their objection was oVl'rruled by the court, on the ground that in law there can be no objel·tion to a witness who made and hilS memoranda in his possession, rl:ldting matters about which he is being questioned. reading the same to refresh his ml'mory in order to be accurate in his testimony matters; to which ruling defendants excepted and tender this bill," etc.
, It will be noticed that no evidence whateveris recited in the first bill of exceptions. That the case, .it is impossible forthis court to say whetl:ler or not there was error in the charges given in sAid bill. ,The court WillllOtgO outside. of the bill of exceptions to find the evidence offered in the case. See U. S.v. Wingate, lately decided by this court in thE! district of Texas, reported ante, 129. ,Tl:J.e second bill of exceptions recites no error on the part of the court. The rule is universal that a witness may refresh- his recollection with his own memoranda. 'On the verdict as rendered, following the rule of damages in Wooden- Ware Co" case, 106 U. S. 432,1 Sup. Ct. Rep. 398, the go\'emment was entitled to a verdict of $225, while it seems that only a judgment for $150 was rendered. As the United States does not complain, this arror cannot be corrected in this court. For the foregoing reasons it is ordered. adjudged" and <iecreed that the jud!!:ment of the district court be, and the same 1s hereby, affirmed, with costs.
;
j
UNITED STATES V. PERKlNS tit e, , :;
ale
(CWcuit CoUn,
w. D.Lou'i8i<tna.
January 15, 18.9L)
L PuBtid LAi-rn8'-CmrTlNG TnmlllR-StlllSEQUENT PUROJIASE. ' ; Wbere' a homesteader, who has' never had possession of the land Included In his homestel,\d clalm.and;wlJosl:I eut!;y the bmd frQm the government, suc4., does, not pallS title to tim!;ler ,WhiCh he· had cut from the land before' his purchase, anll after he had learned that his homestead entry was invalid.','·;,' , , ' ' . '," "
.. EilliB.....M!:A8uBB OP ,DAMAGES.
: In au ,actiOD bythe.United Btate.s.forthevalue of timber bought by defendant froID',. who l1ad, kl),owingly cnt it from the publiQ lando the measure of daiilagea is the value of the timber at the time of the purchase.
'
UNITED STATES V. PERKINS.
671
On Writ of Error from District Court. M. O. Elsner, U. S. Atty. J.L. Bmdford, for defen::lants in error. PARDEE, J. December 17,1885, the United States brought suit in the district court of this district against Allen J. Perkins and Charles H. Miller, the commercial firm of Perkins & Miller, claiming that they were indebted to the United States in solido in the sum of $2.328, with legal interest from judicial demand, for the manufactured value of a lot of pine timber that was cut by one Reeves and one Perkins, trespassers, in the fall and winter of the year 1884, on the vacant land{l of the United States, and by said trespassers sold and delivered to the defimdants,' said defendants well knowing at the time of said sale and delivery that the said timber had been unlawfully cut and removed from vacant lands of the United States; and that said timber, which BOC8me to the hands of said defendants, was sold and converted to the uses of said defendants. Defendants answered with a general denial and the plea of prescription of one year. The cause came on for trial, and the jury found the following special verdict: "We fiod as a fact specially that John T. Reeves went upon the W. i of N. W. i, sec. 30, T. 8 S., R. 7 W., prior to 1877. Subsequently he made homeIJtead entry:of the N. E. i, sec. 25, T. 8 S·· R. 8 W.,supposing it to be the land upon 'Which he was then and had been previously liVing; that in 1879 he discovered that the land upon which he was actually residing was not included in bis said entry, and after learning this fact he cut eight hundred logs from the land included in said homestead entry. and sold same to Perkins & Miller, worth, as trees, fifty cents, and. as logs, five dollars (80.00) per thousand, averaging two bundred and seventy feet per log." Thereupon, it appears, the following agreed statement of facts was entered into, viz.: "In addition to the facts found by the special verdict of the jury in the above-entitled cause, it is agreed that the eVidence before the jury in said suit established the follOWing facts, viz.: 'That JohnT. Reeves. on March 9, 1877, at the United Statt!s land-oftice, New Orleans, Louisiana, made his homestead entry for the land descriIJed in plaintiff's petition in said suit, towit: "Tbe N. E. i of sec. 25, T. 8 S., R. W.;" that on November 5, 1885, said homestead entry was c.anceled by the government; that on December 30, 1886, said John T. Reeves, at said land-ottice, paid the government in full for said land at the raLe of one dollar and twenty-five cents ($1.25) per acre, and the same day received from the receiver of said land-oftice a receipt in full fot the price of said land, inclUding receipt for the payment of all fees for said office in the matter of said homestead entry; that said receipts and a certified extract from the tract book of said land-office in the matter of said homestead entry. also in evidence in said suit, showed that said payment by said John T. Reeves, in full payment of said land, was made by him as a homestead claimiutt, ,as was supposed; by virtue of and under the pri vilege confirmed by section -2 of the act of congress, approved June 15, 1880, and had relation to thooriginalelaimor equity acqui'red by him, whllotever that was, by his homestead ent.ry, made as aforesaid, fo.r said tract of land on It is that af.ter 1879. and prior to the. entry
672
FEDERAL REPORTER,
vol. 44.
on December 30, 1886, John T. Reeves, with the full knowledge that the land upon which he trespassed was not the land upon which he was living, cut the eight hundred sticks mentioned on the N. E. 1 of sec. 25, T. 8 S., R. 8, and sold the same to Perkins & Miller."
Upon·the facts as found, and as admitted in the record, the court gave judgment for the defendants, to which the plaintiffs excepted, reserving a bill of exceptions thereto, and thereupon sued out this writ of error. On the facts as found and admitted the United States are entitled to a judgment, unless the effect of the purchase by Reeves, the original tres: passer of the lands trespassed upon, was to estop the United States from further prosecuting the delimdants for the value of the property converted. The defendants claim that as Reeves originally entered the land. as a homestead in 1877, his purchase of the same from the United States in 1886, under the act of 1880. (21 St. at Large, 237,) and possession thereunder, related back to the date of the homestead entry, and thus effectually canceled the trespass, and this notwithstanding the fact that Reeves never lived upon, occupied, nor possessed the land, and the further fact that the entry of said lands by Reeves as a homestead had been canceled by the government. In the cases cited by counsel, where such effect has been given to such subsequent purchases, (U. S. v. Ball, 31 Fed. Rep. 667, and U. S. v. Preyberg, 32 Fed. Rep. 195,) the homesteader entered the land in good faith, and actually resided upon and possessed it; and there was no suggestion of any cancellation of the entry or abandonment of the Same, nor in the lengthy and elaborate opinions given by the learned judges is there a suggestion that the homesteader toC)k anything under the enabling act of 1880. The decisions cited from the land department, to the effect that under the act of 1880 the homestead settler. even after the cancellation of his original entry, can purchase the same tract at the full government price, provided it does not interfere with subsequent rights, (In re Riggs. 1 Dec. Dep. Int. 96; Railroad Co. v. Burt, 3 Dec. Dep. Int. 490; Hollants v. Sullivan, 5 Dec. Dep. Int. 115; Holrnesv. Rail/foad OJ.,IeL 333; Railroad Co. v. McLean, ld. 529; Railroad 00. v. Elder, 6 Dec. Dep.lnt. 409; In re Doolittle, 8 Dec. Dep. Int. 403,) do not deal, or pretend to deal, with the effect of such purchase on the status of property, such as timber, which became personal property when severed from the soil and removed from the land prior to the purchase. As Reeves never had possession of the land, and as his prior entry was canceled, he never had any title, legal or equitable, prior to December 30, 1886, a date subsequent to the institution of this suit. The trees cut and removed from the tract in question in 1879 became and were personal property, which undoubtedly then belonged to the United States. When the defendants received the timber, and converted it to their own use, they became liable to the United States for its value, and there was no reason why the United States, in thereafter selling the land, should renounce their just right to recover their damages already accrued; and such an intention cannot be presumed in the absence of an act of congress warranting such presumption. But in this case we are not left to
UNITED STATES 11. PERKINS.
673
conjecture as to what was the intention of the United States in the sale to Reeves, and as to the property sold and the rights reserved. Reeves' purchase is under the act of 1880, the first and fourth sections of which read as follows: "SecMan 1. That when any land of the United States shall have· been en· teredo and the government price paid therefor in full, no criminal suit or proceeding by or in the name of the United States shall thereafter be had or further maintained for any trespasses upon or for or on account of any material taken from said lands, and no civil suit or proceeding shall be had or further maintained for or on account of any trespasses upon or material taken from the said lands of the United States in the ordinary clearing of land, Tn working a mining claim, or for alp'icultural or domestic purposes, or for maintaining improvements upon the land of any bona fide settler, or for or on account of any timber or material taken or used by any person without fault or knOWledge of the trespass. or for or on account of any timber taken or used without fraud or collusion by any person who, in good faith, paid the officers or agents of the United States for the same, or for or on account of any allf'ged conspiracy in relation thereto: provided, that the provisions of this section shall apply only to trespasses and acts done or committed and conspiracies entered into prior to March 1st, eighteen hundred and seventynine: and provided, further, that defendants in such suits or proceedings shall exhibit to the proper courts or officer the evidence of such entry and payment, and shall pay all costs accrued up to the time of such entry." "Sec. 4. This act shall not apply to any of the mineral lands of the United States; and no person who shall be prosecuted for or proceeded against on account of any trespass committed or material taken from any of the pUblic lands after March 1st. eigbteen .hundred nd seventy-nine. shall be entitled to the benefit thereof." The said act is a part of Reeves' title, and contains a definite notice to him and the parties holding under him that there was to be no condonement for trespasses committed after the 1st of March, 1879, even when committed in the ordinary clearing of land, or for agricultural or domestic purposes, or for maintaining improvements upon the land of any bona fide settler, or for and on ac.count of any material or timber taken by any person without fauIt or knowledge of the trespass, or for and on account of any timber taken or used without fraud or collusion by any person who, in good faith, paid the officers of the United States for the same, and much less for trespasses willfully committed, or for and on account of timber taken or used ill bad faith, as seems to be the fact in this case, the special verdict reciting "that in 1879 he discovered that the land upon which he was actually residing was not included in his said entry, and after learning this fact he cut 800 logs from the land included in said homestead entry, and SOld same to Perkins & Miller." It hardly seems necessary to add that the effect which defimdants claim should be given to Reeves' after-acquired title, if 8anctioned hy the courts, would be to offer condonement in advance for trespasses on the public lands, as it would be practically saying to the large class of depredators, "Make a paper homestead entry; cut off the timber, and if the United States complain, take part of the proceeds and buy the lands with full pardon.'" .. . v.44F.no.9-43
67.4>
DDERAL REPORTER,
vol. '44.
Bytber ispecial verdict, and the etatement ofrfactsthe timber that dame to the hands of the defendants amounted to-800 logs, averaging 275 feet per log, aggregating 216,000 feet, fot' which the United States is entitled to recover at the rate (following the decision of the supreme court 01 the United States in Wooden- Ware Case, 106 U. S. 432, 1 SUl,>' Ct. Rep. 398) of $5 per thousand, amounting to the su.m of $1,080. In that case it is said by Mr. Justice MILLER for the court: "The thnber, at all stages of the conversIon, was the pr()perty of the plaintIff. Itspnrchase by defendant dId not divest the tltle nor the right of comrecovery of any sum whatever is based upon that proposipeneation. tion. This right, a,t the moment preceding the purchase by the defendant, was perfect, with no right in anyone to set up the ,claim for work and labor bestowed upon it by the wrong-doer. It is also plain that by purchase from the wrong-doer defendant did not acquire any better title to the property than bis vendor had. It is not ,a case where an innocent purch.aser can defend himself lIo"er that plea; if it were, he would be liable to no damllges at all, and no recovery could be had. * ... ... But here he has added nothing to its value. He acquired possession of property of the United States at Depere, which, at th'll.t,place, and in its then condition. was worth eight hundred and fifty dollars, arid he wants to satisfy the claims of the government by the payment of sixty d()lIars. He ,founds his right to this. not,ontbe ground that anything he has added to th(property Ims increased its value by the amount these two sales, but on the proposition that in purof tbe difference cbasing the property he purchased of the wrong-doer a right, to deduct whllt tbe labor of the latter liad, added to its value. If. as In the case of an unintt!ntional" trespasser, such rigbt existed, of course defenda,nt would have bought It. and stoOd in his' shoes; but. as in the present case of an intentional trespasser who had no such rig-ht to sell, the defendant could purchase none., Such ilt the distinction taken in the Roman law,as stated in the Institutes of Justinian, lib. 2, tit. 1,.§ 34. ... * * To-hold that when the government finds its own propprty in hands but one removed frOID tbese willful and asserts its right to sucb property by the slow processes of tbldaw. the holder can set up a claim for the value wbich has been ad'ied to the property by the guilty party in cutting down trees and removing the timber. is to gi ve encouragement and reward' to the wrong-doer by providing II safe market for, what be has stolpn and compensation for the labor he has been compelled to do to make hIs theft effectual and profitable."
It is, however, contended that the rule laid down in the case of WoodenWare 00. does not prevail in the state of Louisiana, where, it is claimed, "the mildor' rule of the civil law prevails;" and reliance is had upon the case of Eastman v. Harris, ,4 La. Ann. 198; Yarbor<W{Jh v. Nettks, 7 La. Ann. 116; and Whitehead v. Dugan, 25 La. Ann. 409. It seems to have escaped the attention of counsel that the supreme court in the WoodenWare Case based their rule of damages upon the authority of the civil law as well as upon the common law, and that the case is cited with approval bytbe supreme court of Louisiana in Gardere v. Blanton, 35 La. Ann. 811. An examination of the Louisiana cases does not, however, sustain the contention. In Eastmanv. Harris, which was a suit to recover the value of certain logs from II possessor in bad faith, the court below a jUdgment uponthe value of the logs at the time of tbe conversion, from which judgment the defendant appealed; the plain-
UNITED STATES ".PERKINS.
675
tiff not appellling, but an affirmance of the judgment of' the· court below. The supreme court affirmed the jiJdgment, using this language: "If the plaintiff was only entitled to recover the value of the logs as they lay on the ground. the datnages given by the district jUdg-e are excessive, but if he was entitled to the enhanced value of the logs. deducting the cost of their conversion into fuel, the jUdgment cannot be deemed excessive. and ought not to be disturbed. As the plaintiff has asked an affirmance of the juugment, it is not necessary to decide whether a possessor in bad undel' such cIrcumstances, is entitled to compensation for the lallOrs bestowed upon it, and by which it has been converted into a more valuable form. But we may remark that it Is at best questionlible. The policy of the civil law was to sanctify and Uphold the right of property by discouraging and punishing wrong-doers; and we find a learned court of common law, in a case very like the prt'sellt, applauding the wisdom of the civil law. and citing it as authority. We refer to the case of Betta v. Lee, 5 Johns. 349, where a party had trespassed upon anoth!'r's land, cut down the timber, and converted it into shingles. This was held not to change the tille to the property, and the trespasser, it would seem, was not considered as having a right to remuneration for making them. In Brown v. .sax. 7 Cow. 95. where logs had been cut on the plaintiff's land. drawn to the defendant's mill and converted into boards, the jUdge· charged that the measure of damages would be the value of the boards, without l'eft'rence to the pl'ice of the defendant's labor, and this ruling was affirmed by the supreme court." -From which it appears that the decision in the case of Eastman v·. Harris, instead of being opposed to the rule laid down in the Wooden- Ware Case, is in direct ,]jne with it, so far as the decision of the court goes. In Yarhorough v. NetUes, which was a suit for damages against the defendant for having maliciously cut timber off the plaintiff's land, there was a verdict in favor of plaintiff for $452, from which he appealed. The court sny: "The jury appears to !lave allowed the full value of the timber. and as their verdict is conclusive on the question of malice. the only ground seriously pressed upon us in argument for an increasEl of the judgmeut is that the jury should have allowed not merely the value of the timber, but its value when made lip into lumuer. If this be the rule. we are unable to perceive how the appellant should stop there. and not claim the value of the timber when worked up in buildings and furniture. The sum allowed by the jury will t'naule him to procure the same quantit>' of timber. and he may make out of that all the profits which his skill and ingenuity would have enabled him to make on his own by converting it to the uses of man. We are of opinion that justice has been done between the parties." The sum of this case is that an owner cannot reoover against apossessor in good faith the enhanced value placed upon the property by such possessor. This does not conflict with the Wooden- Ware Case, nor establish a different rule; rather the same rule. In the case of Whitehead v. Dugan, which was an action for tort or trespass against a purchaser from the original trespasser, the court held that "the defendant was not a trespasser, and that in his purchase from the original trespasser there was no offense, quasi offense of contract or quasi contract, nor obligation ari!'ling under operation of law in favor of the plaintiff, and that, as the suit was one for trespass, the plaintiff could not re-
676
J'EDERAL REPORTER,
cover." The courtindulges in an obiter to the effect that if plaintiff had sued for the possession of his timber the defendants "would have been entitled to keep them on condition of paying the owner of the trees their value at the tinle they were cut," but expressly declares that" no such case is before the court." In Louisiana a possessor in bad faith is not allowed to profit by his own wrong: "An intruder may recover such expenses as are necessary for the preservation of tllings. A negotiorum gestor may recover what he has spent in doing t}Je business necessary, which may be done for another, even without a mandate. It is a general rule of equity that no one shall enrich himself at another's expense, but this doctrine must not be stretched so far as to let an intermeddler recover for willfully doing what was not necessary to be done, and what the owner might not wish to have done, and what the law did not require to be done. If an intermeddler goes to the expense witba single view of benefiting himself, and reaps tbe benefit, be cannot demand a reimbursement for his ti!lle and trouole from' the person upon whose property he has intruded by the suggestion that he, too, has been incidentally benefited." Gibson v. Hutchins, 12 La. Ann. 545. "Where one, through ignorance, commits a trespass on another's land by cutting and removing timber, he will be responsible only for the actual value of the timber used or destroyed. Per CU1iam. The case is different where one willfUlly and knowingly commits a trespass on private property." Wattm'ston v. Jetche, 7 Rob. (La.) 20. "It is well settled that the value of the trees, when first cut, is the measure of damages when the trespass is not willful, but the result of mere inadvertence. Id.; Yarborough v. Nettles, 7 La. Ann. 117." Lord HA'tHERLY states the doctrine thus: "Wbenonce we arrive lit the fact that an inadvertence bas been the cause of the misfortune, then the simple course is to make every just apowance for outlay on the part of the-person who has so acquired the property, and to give as far as is possible, the circumstances of the case, back to tbe the full value of that which cannot be l'estored to him in specie." -And this statement olthe then lord chancellor is quoted with approbation by the United States supreme court in the lastest case on this point: Bo'lle8 Wooden- Ware Co. v. U. 8., 106 U. S. 432, 1 Sup. Ct. Rep. 398. In Louisiana it is well settled that the rule that no one should be allowed to enrich himself at the expense of another is limited to cases in which the alleged benefit arises from a lawful act. From unlawful acts, though they may prove beneficial to others, no right not expressly authorized by law can-arise. See Jenkim v. Gibson, 3 La. Ann. 203; Wood v. Lyle, 4 La. Ann. 145; Hollon v. Sapp, Id. 519; Jones v. Wheelis,Id. 541; Norman v. Ellis, 5 La. Ann. 693. Considering the foregoing adjudged cases,. I am unable to see that the rule of damages for the conversion of property taken by trespassers is different in Louisiana from the rule declared in Wooden- Ware Oaae. It is therefore ordered and adjudged that the judgment of the district court be and the same is reversed, with costs, and that this cause be remanded to the said district court, with instructions to enter judgment for the plaintiff against the defendants in 8olido for the sum of $1,080, with legal interest from judicial demand, and for all costs.
UNITED STATES 11. HOBNER.
677
UNITED STATES 11. HORNER.
(District CcruTt, S. D. New York. January 28, 1891.)
L
CRIMINAL LAW-DISTRICT OJ!' TRIAL-REMOVA.L OJ!' PRISONER.
Upon an application under section 1014 of the United States Revised Statutes for the removal of a prisoner to another distlict, for trial upon an indictment there found, upon objection made, the court should look into the indictment, so far as to be satisfied that an offense against the United States is charged, and one that is triable in the jurisdiction to which it is sought to remove the prisoner. Upon the sct of September 19, 1890, amending section 8894, Rev. St., which makes criminal (1) depositing lottery matter in the mails j (3) knowingly causing such matter to be delivered maU,-an indictment having been found in the southern district of Illinois against the defendant containing five counts, the ·first four of which alleged such deposit by the defendant at New York, and the last that he, knowingly, caused such matter to be delivered, by mail, to a person in the southern district of lllinois, and that he had previously deposited such matter in the mails in NllW York, for such delivery, held, that the offense charged in the fifth count was not completed except upon the delivery of the prohibited matter in Illinois; that that offense was, therefore, consummated and "committed" there, though begun in New York, and was, therefore, an offense legally triable in lllinoisj and that the sixth amendment of the constitution, providing for the trial of offenses within the district where "committed," presented no objection to the removal of the prisoner.
S.
SAME-USE OJ!' MAILS J!'OR LOTTERIES-OJ!'J!'E:NSE BEGUN IN ONE DISTRICT A.:ND COMPLETED IN ANOTHER.
Indictment for Violation of Postal Laws. Edward Mitchell, U. 1:5. Atty., and Maxwell Evarts, Asst. U. S. Atty. Alfred Taylor and Hernana Aaron, for defendant. BROWN, J. The defendant having been arrested in this city, and held by a United States Commissioner, upon a charge of violating the statutes forbidding the use of the mails in the lottery business, tion is made to me under section 1014 of the Revised Statutes for his removal to the southern district of Illinois for trial under the indictment there found against him for such offenses. Objection to his removal is made on the ground that no offense is charged in the indictment, or, if any, none that is legally triable in that state; that, if any offense is charged in the indictment, it is an offense consisting wholly of acts committed in the state of New York, and cannot, therefore, under the sixth amendment of the United States constitution, be tried in the state of illinois, but only in the district wherein the offense was committed. I have no doubt that upon such objections it is not only the right but the duty of the court, before the removal of the accused to a distant forum for trial, to look into the indictment so far as to be satisfied that an offense against the United States is charged, and that it is such an offense as may be lawfully tried in the forum to which it is claimed the accused should be removed. In re Dana, 7 Ben. 1; In re Buell, 3 Dill. 116, 120. On examining the indictment, it is apparent that each of the five counts charges an offense against the United States, in at least general terms. Any defects of form, or objections that might be raised on special demurrer, are not proper to be considered here. All the counts are founded upon the act of congress approved September 19, 1890, which amends Section 3894 of the United States Revised Statutes so as to pro·