United States v. Gumm Bros.

Citations

• 9 N.M. 611
• 9 Gild. 611

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Trover — Cutting Timber prom Public Lands — Abatement—Demurrer —Partners—Individual Liability op — Weight of Evidence — Jury Question — Plea op License — Burden op Proof — Evidence—Rules and Regulations of Secretary op Interior — Instruction Embodying — Refusal—Error—Judicial Notice. — 1. Where the United States sues in trover, for damages for the cutting and converting to the defendants use timber cut from the public lands, defendants are sued individually as well as under the firm name of Gumm Bros., it is not error for the court to overrule a demurrer to a p[ea in abatement denying existence of such firm, and alleging existence of firm under another name.</p> <p>2. In such ease a partner may be sued individually without regard to the partnership.</p> <p>8. Where defendants plead a license to cut and convert such timber the burden of the proof is upon defendants upon that issue.</p> <p>4. In order to establish license under the act of congress approved June 3, 1878, it is necessary to prove compliance with section 1 of the act, and also the rules and regulations prescribed by the secretary of the interior as required by said section.</p> <p>5. Where the defendant introduces competent evidence tending to prove license, it is error to refuse instructions requested by the plaintiff embodying the rules prescribed by the secretary of the interior.</p> <p>6. The court, in such ease will take judicial notice of such rules and regulations.</p> <p>7. Where competent evidence sufficient to sustain a verdict has been given to the jury tending to prove the illegal cutting and appropriation of timber of the United States, and by the defendant, competent evidence tending to justify such acts, it is for the jury to determine the weight of such evidence, and it.is error for the court to take the ease from the consideration of the-jury.</p>