
    ELIAS CREACH v. JOHN McRAE.
    Where A gave a license to B to get timber on his land, which was to be hauled to a given place, and there inspected, but not tobe removed till paid for, Held that trover could be maintained against one who removed, and appropriated, against A’s will, timber deposited according to the terms of the contract.
    Preliminary questions of fact, arising in the trial of a cause, as to the admissibility of evidence, must be decided by the Judge; and if he makes such decision with a proper impression of the law involved in the trial of the fact, it is not the subject of an appeal.
    Tins was an action of trover, tried before SauNders, J., at the Special Term, June 1857, of Columbus Superior Court.
    The action was brought for the conversion of a quantity of timber which had been cut by one Maxwell on the plaintiff’s land, and piled up on the side of the Wilmington and Manchester rail road. It was in evidence that the contract between Maxwell and the plaintiff, was that the former should cut the timber, haul it to the rail road, and have it inspected, for which he (M.) was to have four dollars a thousand, but that it was not to be removed until it was paid for. It was also in evidence that the defendant had agreed to purchase the timber of Maxwell, and had sent an inspector, by whom the timber was inspected, in the presence of both Maxwell and the plaintiff. Nothing was said at the time about the contract with Maxwell. The plaintiff requested the inspector to keep an account of this timber separate from the other timber of Maxwell which he inspected at the same time and place. It was further in evidence that Maxw.ell had left the country a short time after the inspection of this timber, and that a constable had levied on all of it except the lot in question. The plaintiff and defendant both attended on the day of sale, and both alleged their claims to this timber. After some parleying about an adjustment, they separated, the plaintiff forbidding the removal of the timber, and the defendant saying that he would send for it and take it off. Shortly afterwards, a man by the name of Scott, who was a regular conductor of a freight train on the rail road, professing to act as defendant’s agent, came with his timber train and proposed to carry off the timber, which was objected to by the plaintiff, who stated to Scott the contract he had made with Maxwell.
    
      The defendant objected to this evidence, but the objection was over-ruled and the evidence admitted. The defendant excepted for error.
    It was in evidence that Scott carried the timber on his train towards "Wilmington, but there was no evidence that it had been received by the defendant.
    The plaintiff having closed his case, the defendant’s counsel moved to nonsuit the plaintiff, on the ground that trover would not lie. The question was reserved by the Court, with the understanding that, if the Judge should be of opinion with the defendant, a nonsuit should be entered. The case was then-submitted to the jury who found in favor of the plaintiff.
    The Court was inclined to the opinion that the action was not maintainable, but, in order to present all the points made in the case for revision in the Supreme Court, declined to nonsuit. Defendant excepted.
    Judgment for the plaintiff and appeal by the defendant.
    
      E. G. Haywood, for the plaintiff.
    
      Troy, and W. A. Wright, for the defendant.
   Pearson, J.

The legal effect of the contract made by the plaintiff and Maxwell, was to give to the latter a license to cut the timber, haul it to the rail read, and have it inspected, but it was not to be removed, and, consequently, the right of property did not vest in Maxwell, until it was paid for. The right of property was in the plaintiff, and when the timber was removed without a performance of the condition precedent, the right of property drew to it the right of possession so as to enable the plaintiff to maintain trover.”

There is no error of law in respect to the reception of the declarations of Scott. If he was the agent of the defendant, his declarations were admissible. Whether he was the agent or not, was a preliminary question of fact, which it was the duty of the Judge to decide, and his decision is not the subject of review by this Court. The jury decide all issues of fact raised by the pleadings. The Court must decide all collateral questions of fact that arise in the progress of the trial. This being a “ court of error,” has no more power to review the decision of the Judge in the Court below, upon a mere question of fact, than it has to review the verdict of the jury. If the jury pass on a fact under erroneous instructions, or the Judge does so under an erroneous impression in regard to a question of law involved in the trial of the fact, such error, being one of law, is the subject of review by this Court. Eor instance, if the Judge submit a fact to the jurv, where there is no evidence, or if he decide a preliminary fact himself, where there is no evidence to act on, it is error of law; Munroe v. Strutts, 9 Ire. Rep. 49. In our case, his Honor decided the fact which was preliminary to the admissibility of the evidence. We think there was some evidence for his Honor to act on. Whether it was sufficient is not our province to decide. The defendant had this timber inspected, claiming it under a contract with Maxwell. He said he would send and take it away; and, “ shortly thereafter,” Scott, a regular rail-road conductor, came and took it away. This furnished some evidence that Scott was acting in pursuance of the declarations of the defendant to that effect. There is no error.

Pee Cueiam, Judgment affirmed.  