
    Ramsey et al. v. Brown.
    An act,ion, by two cotenants against a stranger, for damages for cutting timber, will not lie, where the cutting was actually done by one of the cotenants, although the stranger may have been concerned in the cutting and may have been interested therein.
    March 18, 1889.
    Error, No. 141, Jan. T. 1888, to C. P. Lycoming Co., to review a judgment of compulsory non-suit in an action of trespass q. c. f. for cutting timber, bv George A. Ramsey and Simon Brown against Robert Brown, at May T. 1884, No. 230. McCollum and Mitchell, JJ., absent.
    The defendant pleaded not guilty and, afterward, by leave of court, liberum tenementum and specially that the defendant had permission from Simon Brown, one of the plaintiffs and a co-tenant of the tenement in question, with George A. Ramsey, the other plaintiff, and Robert Brown, the defendant, to go upon said lands and cut timber.
    The evidence was to the following effect at the trial, before Cummin, P. J.:
    The plaintiffs were tenants in common of the land on which the timber was alleged to have been cut. In 1880, Geo. A. Ramsey cut and sold timber to the amount of 149,000 feet of logs. In 1881 and 1882, Simon Brown cut and sold over half a million of feet.
    John Ramsey testified that Robert Brown cut timber in 1881. He further testified, on cross-examination: “ It was a job he let out. Mr. Simon Brown cut it; he let the job to Simon. Q. Is he one of the plaintiffs ? A. Well, he owns an interest in the lands. Q. He is the same Simon Brown who is a plaintiff to this suit? A. Tes, he done the cutting; he took it by the job. Q. Simon did all this cutting of the quantity you speak of? A. Yes, sir; him and his men.” He also testified that George Ramsey knew that Simon was doing the cutting. On re-direct examination, he testified as follows: “ Q. You say that Simon Brown took this by the job ? A. Yes, sir. Q. Who for ? A. For Robert Brown. Q. Did Robert Brown tell you so? A. Yes, sir, he did.”
    Samuel Clark, a witness for plaintiffs, testified that he worked on the land for one or two winters; that Robert Brown employed him to go and work for Simon Brown to get in logs; and that Robert Brown guaranteed to him his wages.
    Peter Dudley, an agent for E. R. Weed & Co., testified as follows:
    “ Q. Did you purchase any logs on Pine Creek for E. R. Weed & Co. in 1881, 1882 and 1883 ? A. Yes, sir. Q. Who did you buy from ? A. The first year from George Ramsey, and the second and third years from Robert Brown. Q. Where were the logs piled? A. On the bank of Pine Creek. Q. Near Bonnell Run? A. I think they called it that. Near the head of Tombs Island. Q. Did you scale those logs ? A. Yes, sir. Q. What was the scale in 1882? A. 260,839 feet. Q. What, was it in 1883? A. 287,969 feet white and yellow pine in 1883. There were 2,569 logs in 1882 — there were 34 logs I did not have in 1882, that would make 1892 logs and then 34 more, and then 8,000 that Mr. Crocker has the account of. Q. What did you pay for those logs that you got from Brown in 18821 A. I think $10. Q. And in 1883? A. I think $11.”
    Cross-examination: “ Q. Where did you scale those logs ? A. Some in the woods and on the bank of the creek. Q. Who was cutting logs in the woods ? A. Simon Brown had the job. Q. He had charge of the work? A. Yes, sir. Q. You say you bought logs fi’om Geox’ge Bamsey in 1881? A. Yes, sir. Q. Was it in this same locality? A. Yes, sir; we paid him $9per thousand. I think there was 149,000 and something. Q. They came from this same tract? A. Yes, sir; that is what I was told, adjoining where' these others were cut. Q. You bought these logs in 1880, from George Ramsey ? A. Yes, sir; I think so. Q. In 1881 you bought the first logs from Simon Brown ? A. Yes, sir; I think so. Q. You bought logs from Simon in 1880 and 1881 ? A. It was the next year after I got logs from George Ramsey.”
    The court entered a compulsory non-suit, which it sxxbsequently refused to take off.
    . The assignments of error specified the action of the court, 1, in entering a compulsory non-suit; and, 2, in refusing to take it off.
    
      H. C. Parsons and H. H. Martin, with them Linn & Crocker, for plaintiffs in error.
    On a motion for a non-suit, the plaintiff is entitled to every inference. Maynes v. Atwater, 88 Pa. 497; Miller v. Bealer, 100 Pa. 585; Longenecker v. Pa. R. R., 105 Pa. 329; Hill v. Trust Co., 15 W. N. C. 563.
    The cross-examination of Ramsey was irregular. It is error for the court to order a non-suit, on the ground that plaintiffs’ own witness has testified to matters constituting a good defence. Hughes v. Westmoreland Coal Co., 104 Pa. 207.
    Even if Simon Brown had cxxt the timber, Geo. A. Ramsey would have had a right of action under the Act of May 4, 1869. Wheeler v. Carpenter, 107 Pa. 275.
    
      R. P. Allen, with him P. D. Bricker and Reading for defendant in error.
    There was no breach of the close and this action cannot be sustained. Coxe v. England, 65 Pa. 212; Filbert v. Hoff, 42 Pa. 97.
    The Act of 1869 is confined to regulating the rights of tenants in common as between themselves, and Wheeler v. Carpenter, supra, gives no other interpretation.
    The rule as to the cross-examination of witnesses in Hughes v. Westmoreland Coal Co., 104 Pa. 207, does not apply to this case. If, on the whole of plaintiffs’ evidence being submitted to the jury, they would not be justified in finding a verdict against the defendant, it is the duty of the court to order a non-suit. Pittsburgh & Steubenville R. R. v. Gazzam, 32 Pa. 340; Howard Express Co. v. Wile, 64 Pa. 201; Allison Mfg. Co. v. McCormick, 20 W. N. C. 571.
    March 25, 1889.
   Per Curiam,

The court below non-suited the plaintiffs. They were tenants in common of the James Wilson tract, and brought this action to recover damages for cutting timber thereon. If the plaintiffs’ crisp history of the case were all there is in it we would have no hesitation in reversing this judgment. But there are some things omitted from that history which naturally change its aspect. The evidence develops the fact that both of these plaintiffs were cutting timber on this tract. It appears that George A. Ramsey, one of the plaintiffs, cut and sold about 149,000 feet of logs about 1880, and that Simon Brown, the other plaintiff, cut and sold over half a million feet in 1881 and 1882. It further appears that the defendant, Robert Brown, was in some way concerned with Simon in cutting this timber, and may have been interested therein. The fact remains that Simon Brown cut this timber and delivered it to the defendant. He joins with his other tenant in common in this suit against the defendant, Robert Brown, to recover for this very timber. Under such circumstances, we are unable to see any error in the action of the learned Judge below in entering a non-suit.

Judgment affirmed.  