
    Gibson vs. Kephart.
    Appeal from Frederick County Court. Trespass for taking and carrying away rails. The defendant, (now appellee,) pleaded, 1. Non cu!. 2. Property iu the rails,'and 3. A license to take them away. General replications, and issues joined. At the tri a! the plaintiff offered in evidence a deed, dated the 20th September 1805, from the defendant to himself, for a parcel of land called the Resurvey on Brother’s Agreement; and proved that the fence rails, to recover damages for the taking of which this suit was brought, were on the land at the time of executing the deed by the-deféndant, ánd formed a line of fence enclosing a part of the land, and that the' fence' rails were removed by the order óf the defendant about six months after the execution of the deed, and before the bringing of this suit. The defendant then offered in evidence, to support the' issue joined on the third plea, that a settlement of lines' took place between the plaintiff and defendant some time before the execution of the Said deed; ánd that ■apon such settlement a considerable part of a post and rail fence; put up by the plaintiff, appeared to be on the defendant’s land. That the land; on- which the greater part of the’ post and rail fence stood on' the settlement of lines, was, together with some othér lands of the defendant,- conveyed by the said deed; and on the lands So conveyed the fence stood, for1 the taking away of which this suit was brought, and which fence had been put there by the defendant. That about five or six pannels of the fence, put up as aforesaid by the plaintiff,- stood ó'n the land of the defendant, and was not Conveyed in tlie said deed. The plaintiff further offered in evidence, that subsequent to the deed already offered' in evidence, in a conversation between tfio plaintiff ^arrd defendant, the' defendant' Said to the plaintiff, What have you left that piece of fence standing for? (alluding to the five or Six pannels of post and rail fence which still stood on the defendant’s land, and which had been put there by the plaintiff.) That the plaintiff said, for you Sir. The defendant then said; you know how the bargain was,- that each of us was to have! our own fence rails. To which the plaintiff made no reply,- but thereupon directed the witness-to remoVé the said' piece of post and rail fence from off defendant’s land, to hia the' plaintiff’s land; which was accordingly done. That the conversation above mentioned took place about one’ month after the fence rails,, for the taking of which thiff suit was brought, had been removed by the defendant’s order. That at the time of this conversation, the plaintiff knew that the rails for which the suit was brought, had been taken away by the defendant,- and the place from which they were removed was not more than six- or seven perches distant from the place where this conversation took place. The defendant then offered to’ prove, by a competent witness, that in a conversation between the plaintiff and defendant;- Before the execution of the deed aforesaid, the plaintiff had told the defendant that be Would afterwards give him leave to move the rails in question whenever he should request him. The plaintiff objected to this testimony, and prayed that the same might not go to the jury. But the Court, [Skriver, A. J.j was of opinion, that the same might be offered to the jury, and did accordingly suffer the same to go to the jury. The plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.
    
      K executed to G a deed for a parcel of lamí, on which weie a quantity of fence rails, »v inch I£, after the deed, re* moved. G brought an action of trespass against K for taking and carry» inti away the fence v nls, ami K defended himself under his plea of a license to taka thorn away, and proved at the. trial, that m a conversation between him and G, before the deed was executthat he would afeenvards give him leave to move the vaihnvhttafcvei <$aes: lum. Such, testimony held to be admissible
    
      The cause was argued before Chase, Ch. J. and Nicholson, Earle, and Johnson, J. by
    Brooke, for the Appellant;
    and by
    
      'Taney, for the Appellee.
   ÍÜDGÜÍBNT AEEIEME».'  