
    
      STERLING vs. CARRUTHERS.
    
    Appeal from the court of the third dis- , - , tJ'iCÍ. - -
    W hen it is necessary t* exnluinor re* but the tcsti» mony of the defepdflTit, court ha* power to peí? ⅞ plainnfi 1⅝
   i Porter, J.

_ ⅜ delivered the opinion of the . court. The petitioner states that he feed the defendants to cut wood on his •n the condition they would pay fifty cents fcr each cord. That in pursuance of this ag’Te* *nent, they cut down and disposed of a large «juañlity, and from time to time paid for the lame, until the 21st January, 1827, when a settlement took place, and the defendants ac* tnowlédged they owed for 369 cords, which, at 50 cents per cord, is one hundred and eigh* four dollars and 50 cents.

This sum, heavers, they have refused ⅛ pay, as algo a further sum of $300, for wood •ut by them, for which they did not render an account. Judgment is prayed against them $484 50 cents.

The defendants, by their answer, admit the •ontract, and the payment bv them of several twins of money, hu* allege these payments were made in error, as the plaintiff had no ti-tile to the land on wh'oh the wood was cut. They funher state that he has since so’d 'he fend to. ene (Dhinn, to whom a ¡one they are responsible for the wood cut on it. They cott- , elude by praying judgment in reeonvention for „ the thoney paid by them in error, and $ 500- * 4 * the; damages sustained by them in conse*' quence of the plaintiff fraudulently represent^ ing the land to belong to him. j

The cause was submitted to a jury, wh® found a verdict in favour of the plaintiff for $184 50 cents—the defendants made an unv successful attempt to obtain a new trial, and the court rendering a judgment conformable to the verdict, they appealed.

The plaintiff proved the contract as set out in his petition, arid a settlement made on the 21st January, 1827, by which the defendants acknowledged the quantity cut by them to be 459 cords, 50 of which had been cut since the' the sale to Chinn, on the 27th of December 1826: leaving 409 cords to be paid for to the plaintiff, At the foot of this acknowledgment the plaintiff declares the defendants have paid $20.

The defendants have contended in this %ourt—

1st.—that the wood was cut after the land 'was soid to Chinn.

.The ^troof contradicts this assertion. The' defendants’ acknowledgment establishes it to ° have been before.

2nd—that the land the wood was taken off did not belong to the plaintiff.

On this point the evidence is: the defendants cut wood three miles, or three miles and a half from the mouth of Thompson's creek. In the instrument by which the defendants were permitted to cut wood, the land is described to be on the point made by the Mississippi river and Thompson's creek. There is no planofsurvey coming up with the record, nor any proof which enables this court to say that land lying three miles and a half from the mouth of Thompson’s creek, is not on the point made by the Mississippi river and Thompson’s creek. We cannot therefore say the jury erred in considering the wood to have been cut on the soil of the plaintiff

Nor do we think the court erred in permitting the plaintiff to examine a witness after the defendants had closed their testimony. The general rule is certainly opposed to such indulgence being extended ; but when it becomes necessary to explain or rebut testimony, it is withm the discretion and power of the court to permit either of the parties to do so. The 484th article of the code of practice does not . . . . appear to ns opposed to this doctrine; the pro-t|iere spoken of, is in relation to testimony offered after the argument has commenced.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.  