144
FEDERAL
vol. 49.
PALMER t1. SANDERS
et at 1899.)
(CfnocuUCourt, S. D ·. .ffew York. I,BAS_PAROL EVIDENCE' TO VARY.
Parol evidence of consent by the lessor to cut trees on the leased premises and on adjoining premises is not inadmissible as varying the written lease, which provides that trees should }wt be cut on the premises without consent of the lessor.
At .Law. Action by John E. PIll mer against Elizabeth B. Sanders an<Hlharles W. Sa.nders, for maHcwus prosecution. Verdict for plaintiff. Motion by defendants' to set the same asjde, and fora new tri8.1. Denied; .. I ;. 'Palmer'& BoothlFy, for·plaintiff. c.' SandetB,for · .WBBELElt,: J. The'plaintifftooka lease for five years of a farm in New Jersey belonging to the husbandofthedefeildantE"izabeth, father oithe defendant Chllrle$, of which.they had charge,some of the fences On whiehwere gone;'.agreeing in the lease to make all necessary repairs to the fences andbuHdings, and· tolexpend $600 in improvements 011 it withjn: two and not.tO' cut any living trees·witllout· the consent·of the lessdr.· He carried some fencelo.posts away from this farm to. another. of which he had the use, near by;: They went together to look the posts up ,a\ld." oJ! the, complaint-of dafelldant Oliarles,<he was prosecuted for stealiilg-the posts, imprisoned, ;tried, ·and acqditted. This suit is brought for startingtbat prosecutionrilaliciously , Thedefendantsclaiined ,that the lposts were on the farm, piled, before the lease; he claimed .that he cut part of them on the leased premises, and the rest on land, adjoining,belohging to the lessor, with the consent of defendant Elizabeth, acting for the lessor, for re-building the fences. _: " ' ThedMeildants irisistthat the parol evidence of this consent was inadmissible,because it would vary:or' add to the terms of the written But consent to cut trees on the leased premises was expressly provided for in:the lease,and not reqilired:to: be in writing, and consent to cut on the other premises was wholly without the termaof the lease. Besides this, the parol proof must have been admissible to account for the posts which he carried away, and shows that they were not there before he went there. His right, or claim of right, to the posts on account of having cut them with this consent was the turning point on the question of want of probable cause. It was submitted to the jury on all the evidence, and found for the plaintiff. This finding is argued to have been against the weight of the evidence, and reasons in support of that view are brought forward. They were, however, well presented to the jury on the trial, and must have been considered. That there was no evidence to support the finding is not claimed. Under those circumstances, it cannot be disturbed without trenching upon the province of the: jury.
LEM HIN'G DUN
v; UNITED STATES.
145
In stating the question:whether the defendant Elizabeth so took part in the prosecution as to b'eliable for it, the court'appearsto have said that the defendants returned to New York together after the making of the complaint, when in fact they came separately. This is relied upon in favor of a Dew trial. But as they came after the prosecution wal'l started, whether they came together or separately was wholly immaterial. If not. the attention of the court should have been to the mistake, that it might be corrected. Some other pointl'l of the same sort are made, but are similai'ly and no better founded. No valid reasou', for setting aside the verdict is made to appear,' and the motion for that' purpose must be overruled. Motion denied. Stay oontinue(l SO days, for settling exceptions.
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LEKlhNG DUN C,' :j
'l7. UNITED STATES.
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Co'Urtof 4.ppeaZB, Ninth Circuit. January 7, 1892.}
:A.PiolliALi-i:hSMISSAL-'REcbBDS AND BRIEFS. intb:e oircuh ebllrt,of appeals dismissals are provided for if appears ll,11..,brief filed for appellant or plaintiff in error the case is, called for trIal," (itlile 23, 47' x.;) and also if the reco,rd has not been printed . ;thecas.e is l'!IBllhed in the regular call oUbe docket, "(Rule 23.) , Held, that time jIl4;lant,in, eaqb is not the time of going through the docket to the btls{n'ess of the'court; but the time of actual call fOr trial, and no motion to distbe;groullds mentioned can beentertatned before ,that time.
Appeal,from the District Court of the United States for the Northern District of California. Application for writ of habeas C07'P'U8 to release Lem Hing Dun from restraint on board the steamer City of Peking, and :to permit him to land in the United States. The court below found that the prisoner was not entitled to land under the exclusion act, and remanded him to the custody of the master, to be transported to China. The prisoner appeals. Z. T. Ch8on, for appellant. W. Witter, Asst. U. S. Atty. Before HANFORD, HAW'LEY,andMoRRoW, District Judges. District J' udge. A motion to dismiss the appealin this case has been made for the reasons that the appellant has failed to have the rac9rd Pri.bted, and copies thereof furnished to the adverse party, as required by rule 23 of this court, and that the attorney for the appellant is riot yet 'prepared to argue the case, although it was docketed in this court prior to the beginning of the present term in October last. We'hnve acted upon and granted similar motions at this session. In doing so; we were influenced by representations made in open court that counsel for the appellant,in case had declaradan intention to abandon'the appeal, and by the fact that the motions were not opposed by v.49F.no.2-10