Hammond

The government brought this action to recover the value of a large quantity of timber cut from the public lands and alleged to have been converted to the use of defendant. The jury gave a verdict for the plaintiff, and the defendant now asks for a new trial.

There are several grounds assigned in the petition as involving error, but the only points upon which stress has been laid in tire presentation of the motion are two, involving the correctness of the charge of the court upon the subject of the measure of damages. It appearing that all the timber in question had been manufactured and sold before suit, the court.charged the jury as follows:

This feature of the charge gives rise to the first objection urged. It is contended that it is erroneous in that, first, the measure of damages when the taking is innocent is not the difference between the expense incurred in manufacturing the lumber and the price for which it is sold, but is the stumpage value only; and, second, that the instruc *851 tion was inapplicable to the facts of the case because there was no evidence offered to show the expense of manufacture of the lumber.

[1, 2] In the first place, I do not regard the exception…