Miss. Central Railroad v. Whitehead ( 1866 )

Harris, J.,

delivered the opinion of the court.

The defendant in error commenced his action in the Circuit Court of Carroll county to recover of plaint fife in error the statutory .penalty for cutting and destroying a number of trees belonging to defendant in error.

The plaintiffs in error relied for their defence on a general denial of all the material allegations set forth in the declaration, and also upon the plea of not guilty, as charged, &c.

There was a jury and verdict for the defendant in error; a motion for a new trial,-which was overruled, and a bill of exceptions, and the cause is brought to this court by writ of error.

On the trial, after the cause was submitted to the jury, and a portion of the testimony had been offered to the jury, defendant in error asked leave to amend his declaration, by striking out the words, “ and other wrongs to the said plaintiff then and there did, to the damage of said plaintiff of two thousand dollars.” To which amendment plaintiffs in error objected, and the objection was overruled, and the said words stricken out, to which plaintiffs in error excepted.

The amendment was in no respect, material, and could not have prejudiced the defendants below; its allowance did not • change or affect the form of action which appears in the record, if this amendment was the only change made; and no other appears by this record.

The next error complained of, in the order they are presented, is the refusal of the court to rule out the testimony of the defendant in error, as to the admissions of Yaiden, made to witness.

This objection was based upon the ground that Yaiden was only a director in said railroad company, and not an agent. Hut the testimony of the witness Whitehead distinctly shows that Yaiden was an agent of this company, managing and directing the affairs of the road, and another witness shows that, in relation to the matter here in controversy, Yaiden had sent to have the number of trees that had been cut, counted.

This objection was therefore properly overruled. -

The remaining assignments of error mainly depend upon the form of the action.

Regarding the action as founded on' the statute, to recover the penalty prescribed for cutting trees of a certain description, on land not belonging to tbe plaintiff in error, and without tbe consent of the owner, tbe instructions given for the defendant in error were properly given, and those ashed by tbe plaintiff in error were properly refused.

Tbe declaration in form was perhaps objectionable. But the plaintiffs in error should have raided their objections to tbe form of tbe action by demurrer.

Tbe bill of exceptions does not purport to contain all the evidence in tbe cause. And it is impossible, therefore, for this court to determine the propriety of tbe action of tbe jury, or of tbe court in refusing a motion for a new trial.

Let the judgment be affirmed.

The Chief-Justice, being a stockholder in tbe Miss. C. R. R. Co., gave no opinion in tbe case.