
    William Ecker and Phineas Thomas, vs. John S. Moore, Thomas M. Crankshaw & Benjamin B. Joslin.
    In an action of replevin it is immaterial evidence to show the intention of the defendant in talcing and appropriating the property. His liability in the action does not depend upon the quo animo whieh characterized the talcing or the conversion. An objection to such testimony is well taken.
    An interrogatory put to a witness as to a prevailing custom in regard to the discovery of lead mineral, without, by the question, disclosing the pertinency and object of it, is inadmissible, unless the question discloses the custom proposed to bo proved, so that the Court could seo its relevancy.
    The plaintiffs in a cause cannot be sworn as witnesses, unless they comply strictly with the provisions of the Statute, touching the requirements of the defendants to appear and give evidence. Where two defendants appear and are sworn at the instance of the plaintiffs, and the third defendant not appearing, to swear, it gives no right to the plaintiffs to be sworn themselves.
    
      Error to the Circuit Court for- the County of 1$ Fayette.
    This was an action of replevin commenced originally before a Justice of the Peace, by the plaintiffs-in error, to reclaim a quantity of lead mineral alleged to have been taken from their possession by the defendants in error. An appeal was taken, in thp capse to the Circuit Cour,t; and on the trial there the defendants, in error obtained a judgment. On the trial at the Circuit, the counsel for the plaintiffs took several" exceptions to the ruling of the presiding Judge, as respects the admission and rejection, of the evidence offered by the plaintiffs. These excep-. tions sufficiently appear in the opinion of the Court.
    
      R. F. Culver, for plaintiff in error,
    in order to sustain, the exceptions taken on the trial, cited; — 2 Starhie’s Evidence, 739; Burnett’s Rep., 57; 2 Starkie’s Evidence, 453; 5 American Law casesi 35 and< 45.
    
      J. II. Knowlton, for; defendants in error,
    to- show that replevin would not lie in a pase like-this, cited, 8 Cowen’s Repv 220.
   By-the Court

Larrabee J.

This-, was an action- of replevin, brought by the plaintiffs in error against the defendants in error, .to recover the possession of a quantity of lead ore. The cause, was. commenced before a Justice of the Peace, and came to the Circuit Court of La Fay-ette county, by appeal. A trial was had in that court, and a judgment recovered by the defendants. Numerous objections were taken to the ruling of the Judge, before whom the cause was tried, all of which appear in the assignment of errors.

The first error assigned is as follows: The Court erred, in not permitting one of the defendants,, John S. Mqo-re., (■'tfho yras swo/n as a witness, under the Statute) to answer the following question: “ What reason they had foif working and carrying away the mineral upon Sunday 1” This question was asked and objected to, and by the Gourt, deemed improper, it is presumed, on the ground of irrelevancy. In order to decide whether the question was relevant to the issue, it is necessary to consider what the plaintiiis were required tp prove in order to maintain their action. The- action was replevin, and the vyrongful act complained of was the taking and carr rying away of the mineral spoken of.

The testimony, as stated in the bill of exceptions, showed that the defendants, dug the mineral, a,nd that they car* ried it, or a part of it,, away from the place where they had (jug it, on Sunday. In order to recover, the plaintiffs were obliged to show their right to the immediate possession of the mineral, and the wrongful taking of it bv the defendants. I cannot see how any answer which the witness could give to the question aske.d, could have any effect upon the question before the Jury. It is. said that the witness might hava disclosed the fact that the defendants knew they were taking property which did not belopg to. them, and* tha,t the plaintiffs might,prove that fact. The authority cited by the plaintiffs counsel in the argument to this point (2 Stark. Ev., 739) does not support the proposition. In all cases where it is necessary to prove intention, it may, of course, be proved by any legitimate testimony, but this is not one of the cases. The intention with' which the defendants took the mineral had nothing to do with the question before the Jury. The plaintiffs might have recovered, although the defendants acted with the utmost good faith, and supposed that they owned the ¡mineral. The question was one of 'fact and mot of intention, and I cannot think that the décision of :the Judge was improper, in ruling that the question put 4©'the witness was irrelévant.

•The second error assigned is as follows: The Court ‘éíred in not permitting the witness, Thos. M. Crankshaw, to answer the following question, to-wit: “ Is there, to your knowledge, any established rule or custom of the mines in the vicinity, ‘in relation to the rights acquired by '■a¡ person making a lead-ore discovery upon the land of another I Tf so, what is that rule!”

There clearly was no error in ruling the question put to the witness, to be improper. He was asked if there was a rule, and if there was one, what it was. The Court couldmot see'that the question .propounded to the witness had any relation to the one before the Jury. The question put to the witness shoMld have had some apparent connexion with the case on'trial, or have been accompanied by a statement of counsel showing its connection. If the plaintiffs intended to rely upon a custom to show their right to the mineral in dispute, ‘they should have shown what the custom was, which 'they intended to prove, in order to enable the Court to ¿judge of the .propriety of admitting proof to establish it.

The third-error assigned is as follows: “The Court iér>red in refusing to allow the said, witness, Thos. M-Crankshaw, to answer the following question, to wit: Has Mr. McCoskey, 'to your knowledge, any rule in relation to such rights.-upon this particular lot V’ -It is manifest'that this question is obnoxious to the same objections, which apply to the .preceding one. It relates 'to the rule, if any, which McCoskey had in -reflation to the rights of •those who dug mineral upon hi% land. 1?he rule which, the owner of the land had in relation toyihose who- dug • minpral upon his premises, might, or might not, have af-. fected. the relative rights .of those who dug;; the mineral,. The question was general and had no apparent connection with, the case. The Court could not see .that it had,any relation to the question before the Jury.

The fourth, eiyor assigned is as follows,,to,wit: ‘"-The Court erred in not permitting the following question to be put to the witness — :“-Do you, or do you not know any rule of the mines,,or cqstqm of the country,, making a north and .south, range a, dividing line between,contending claimants.to the same range — speak of your.own know-. Ipdge.” This question differs from the others by which tfe-.plaintiffs sought to obtain proof of a custom in this, that it is specific. The Court could tell whafthe custom was whjch was sought to be proved, and thus judge of the propriety of admitting evidence to, establish it. But I cannot see that the ruling of the Judge, by which it was excluded, wjas improper. There is nothing in the case which makes the testimony relevant. It. could not have benefited the plaintiffs to prove such a custom., because they could not, found any right, upon it. The statement of the .evidence, contained in the bill of exceptions, shows that the plaintiffs .were at work upon an. east, and west range of mineral on land.belonging to one McCqskey. To show their right to recover, the plaintiffs,, introduced evidence tending to prove that the defendants./! ug the mineral in dispute on the sarqq range. It further appears from the bill of exceptions, that between the .places, where the parties were thus digging, there was a, north and south s.ange crossing the east and-west range,, The -testimony shows fuVther that tlfe plaintiffs were digging west of this north hiidsouth range, and the defendants east of it, and that the mineral in 'question was dug by the defendants, át the place where they were thus digging — east of the range. Now, it coluld not have availed the plaintiffs to prove that there was 'a custom, making a north and south range the dividing line between contending claimants thus Situated, 'because the defendants obtained the mineral in dispute east of the range, while the plaintiffs were at work to the west 'of it. Nor could the plaintiffs be permitted to prove that there was no such custom, bé'causé the defendants did not rely upon it, and "had introduced no testimony tending to establish it. The bill of exceptions shows that testimony had been introduced tending to prove that the parties had agreed to make the north and south range the dividing line between their respective claims, but it 'does not appear that ány testimony whatever, had been ’introduced upon the subject of the custom. The testimony was therefore properly rejected.

The fifth error assigned is as follows, to wit. “The Court erred in not permitting the plaintiffs to be sworn as witnesses.” The bill of exceptions shows that the plaintiffs served a notice on one of the defendants (Moore) that they wished to have all the defendants sworn as witnesses, on the trial. The notice was filed with the clerk among the papers of the case, on the 17th of April, 1848. It was not served personally on either of the defendants ’except Moore, nor on their attorney. At the trial; Moore and Crankshaw appeared and testified, being called by the plaintiffs’ counsel, but Joslin was not present. His failure 4o appear and testify, or to produce his deposition taken in pursuance of the Statute, the plaintiffs contend, gav© them 'the fight'to testify. The Statute gives either -party the right to notify the adverse party that he wishes to have him'sworn-as a witness, and unless the party notified, appears, and testifies at the trial, or produces his deposition, (which under certain circumstances he is allowed to 'do), the party giving the 'notice can himself be sworn as a witness. (Stat. 1841, page 26.) I do not think that the service of the notice was sufficient. There was no service on the attorney of the defendants, nor on either of the defendants .personally, except Moore. He appeared and testified, and Crankshaw also, who was not served with notice. It does not appear where Joslin, the other defendant, was; all that the Court can know is, that he was not present at the trial. But, whether the notice was sufficient or not, it is clearly wrong for the plaintiffs to avail themselves of the testimony of two of the defendants, and then because the remaining one did not appear, to have the right to testify themselves. The Statute contemplates that the party giving the notice shall have the right to testify only when the party notified fails to appear —that only one party shall testify. If the defendant Jos-lin had been present, and had refused to be sworn, or if he had absented himself after having appeared at the trial, the plaintiffs might perhaps have moved to strike out the testimony of Moore and Crankshaw, the defendants who had testified, and then have offered themselves as witnesses; or they might have called upon all the defendants to be sworn in first instance, and if they did not all appear, they could have insisted on their rights under the Statute. But in this case the plaintiffs called upon Moore and Crankshaw, who appeared and testified, and after their '•.estimony had been received, Joslin was called. I think that the decision of the Circuit Judge was correct.

The sixth error/assigned is as follows, to-wit: “ The. eoqrt erred in instructing the Jury that there was no, such thing as two persons being in possession of the same.premises,, holding adversely, the one rightfully, the other tortiously.” ■

There can, I tiling, be no doubt of the correctness of the ruling of the Circuit Judge upon this question. The nature of adverse possession was settled by this, Court in the case of Whitney vs. Powell; (ante, page 50,) but vyhether the ruling, was right or wrong, the question involved does not appear to have had any connection, with th^.case.

The seventh error assigned is as follows,to-witi, “-The Co.urt erred in instructing the Jury, that a person having tin?.right of working out a range of' mineral)., could': nqt maintain replevin for lead ore, dug and taken there-, from .by another party, holding adversely. That', if the Jury believed from the evidence that the plaintiffs had merely the exclusive right to dig the leaffiore contained ip said range, they could not find for the plaintiffs.”’

Thl.s , assignment of error brings before the Court-a vpry important question, and .that i> whether a person going upon the land of another, with. hi's consent to dig 'lead ore, and agreeing to give a certain', portion of the ore which he may. find, as rent to the owner, of the land, and commences working upon,,a lead or, range of mineral, can maintain this action, for ore .wrongfully dug at another place on, the same land, and in the-same range of mineral. Tins point was not very fully»,- argued, and' it being understood to be a very important?- question .in the western part of the State, where contracts for min■ing are very-often'made, the, Court, have concluded to» give, no opinioq upon it, as. no decision, qf it is necessary for. the purpose of disposing of this case, for we are all of opinion that the evidpnce. as stated in the bill of exceptions, shows that the plaintiffs gave the defendants permission to dig the mineral, in question. This obviates the necessity of deciding whether the instructions given to the. Jury, upon this point, were correct or not. ’

The eighth assignment of error is as follows, to-wit: The Court erred in instructing the Jury that he had heard no evidence that the plaintiffs had a lease of the premises from which the lead ore in dispute was raised.” This,instruction clearly was not erroneous.

There was no testimony in the case, tending to show a lease of the land to the plaintiffs, except occupancy. ' If occupancy of the land by the plaintiffs, for.the purpose of digging the. ore upon it, tends to prove a lease from Ihe owner, McCoskey, it could not extend to land not so occupied. And the testimony shows that the mineral in dispute was dug by the defendants, on land occupied by them. Upon the whole, we are of opinion that the ju.dg-3 ment should be affirmed.

Judgment affirmed.  