6 Fla. 516 | Fla. | 1855
delivered the opinion of the Court:
This is an action of trespass instituted in Hernando county. The declaration charges the defendant with cutting certain timber from the plaintiff’s lands there situate. The defendant put in the general issue and several special pleas, upon each of which an issue of fact was joined, and the case was submitted to a jury, who found for the defendant, and a judgment was entered accordingly, from which the plaintiff appealed to this Court. The questions arising upon the errors assigned were argued with great ability at the late session of this Court, held at Tampa.— They were presented, however,' as though all the testim ony in the case was before the Court, but it turns out on an inspection of the record that the following is the only bill of exceptions which it contains, viz: “This cause coming on for trial, the plaintiff’s demurrer to the amended third plea of the defendant was argued, and it being considered by the Court that the defence set up in that plea was not °
“ Upon the further hearing of the cause, when the plaintiff had rested from the examination of his witnesses, defendant by his counsel declined introducing any testimony, and proposed to go to the jury, claiming the concluding argument in consequence thereof. The argument of counsel was then commenced forplaintiff. In reply, defendant, by his counsel, contended before the Court that the plaintiff’s replication to defendant’s amended third plea, was a complete and binding admission by the plaintiff of the existence of the instrument of writing pleaded in said amended third plea, which relieved the defendant from the necessity of otherwise proving the execution of such instrument. The Court sustained the defendant’s counsel in this position, to which ruling plaintiff, by his counsel, excepts and prays that these exceptions may be signed and Sealed by the Court, and put on record in said cause; “which it appears was accordingly done.
The instrument set out in the said third amended plea is in the words and figures following, to wit: “Received of A. Clark one hundred dollars, being in full payment for the cedar timber upon mjr land in the Annutliga Hammock, it being the S. E. quarter of section 20, T. 21 S. R. 19 E. and L, hereby give him full permission to cut- the same and haul it off said land, and to make roads and use other necessary means for getting off said timber, either standing or fallen, arid to have full claim to the land until he gets it off—.
“LEWIS JENKINS, [seal.”]
In presence of
E. CLARK,
e. b. McDowell,
The plaintiff claims the land described in that instrument under a deed from the same Lewis Jenkins, alleged to have been made, executed and delivered on the 12th day of December, A. D. 1852, and the defendant justified the cutting of the timber under the said instrument. The replication to the said third amended plea, whioh was held to be a full admission of the existence of the said instrument of writing, so as to relieve the defendant from proving its execution, is as follows, viz:
“ And the said plaintiff by his attornies as to the said amended third plea by said defendant now here by leave of the Court pleaded, protesting that the said supposed license, if any such was ever given, was obtained by false and fraudulent representation of and by the said defendant; for replication nevertheless in this behalf, the said plaintiff saith, that before the said time when, &c., in the said declaration mentioned, and on divers other days between that time and the time of the commencement of this suit, to wit: on the fifteenth day of December, A. D. 1852, at &c., aforesaid, the said supposed license was revoked, recalled and countermanded by the said Lewis Jenkins and by his authority. And this he is ready to verify, wherefore he prays judgment, &e.”
To this replication there was a general rejoinder, concluding to the conntry.
This Court has repeatedly held that unless the testimony
A bill of exceptions was necessary to show these matters, if they existed. It was also necessary to authorize the Court to take notice of and to act upon it. At common law a writ of error lay for an error in law, apparent in the record, or for an error of fact, where either party died before judgment; yet it lay not for an error in law not appearing in the record, and therefore when the plaintiff or demandant, tenant or defendant, alleged anything ore terms, which was overruled by the judge, this could not be as
A bill of exceptions ought to be upon some point of law, either admitting or denying evidence, or a challenge, or upon some matter of law arising upon a fact not denied, in which either party is overruled by the Court. It is not to draw the whole matter into examination again; it is only, for a single point, and the truth of it can never be doubted-after the bill is sealed, for the adverse party is concluded from averring the contrary or supplying the omission of it. 2 Bac. Abr., Ed. 1848, pp. 113, 114, and the numerous authorities there cited which show very fully in what cases hills of éxception will lie and also those in which they will not lie.
The interesting and important question so well argued' and in regard to which there is a very great conflict of authority, viz: whether the timber alleged to have been cut by the defendant on the land of the plaintiff was attached to the freehold and was real, estate, or was to be consider
In closing our remarks in this case we may, we think, with propriety say that it is always unpleasant to the Court to be prevented from deciding the merits of a cause upon any technical grounds, but that we feel the less reluctance in affirming the judgment of the Circuit Court in this case, because we consider the said third amended plea, if sustained by proof, a good defence to the action, so far as regards all the timber cut by the defendant before he had any notice, actual or constructive, of the purchase of the lands on which it was cut, by the appellant; but we are by no means satisfied that it is a good defence for any cut afterwards. Let the judgment be affirmed.