34 wood so delivered by them marked “S” was at the pulp mill

of the defendants; they commenced using it within the last six or eight months; it has all been used up now.

Q. What was that timber there at Port Leyden? What did they pay for it, , if you

know? Objected to as incompetent, improper and not the proper measure of damages. Overruled. Exception. 35 A. In the mill-yard?

Q. Yes? A. $4.75 a cord was paid for it. I saw Mr. Hadley and Mr. Frederick Wells there at the pulp mill some time in April, 1899, and showed them the timber; we conversed about it at that time; we had used all the timber; I referred them to Dr. Johnston, one of the defendants.

On his cross-examination he stated: I know of my own 36 knowledge the location of the Gouverneur lot, but do not know

the distance it is from Port Leyden. I have referred to some pulp wood here marked in a particular way, marked in blue ink. The amount of pulp wood which I have stated was marked in that way; I did not discover any other registered only in that way; I wish to be understood as saying that all

the pulp wood to which I have testified was delivered under 37

the charge of George and Marcus Earl; by all appearances they had charge of the work; to my knowledge they delivered the wood that I measured there in the yard 431 cords, 105 feet; I am not willing to testify that they delivered that much pulp wood individually, nor the number of cords which each individually delivered; I know nothing about the fact at all, except what I saw; I don't know anything about who delivered

any separate number of cords; I don't know where any of the 36 pulp wood came from.

On his re-direct examination he stated: Marcus Earl and George Earl drove a team apiece, and other teams were there, being driven by their men; they all came there during this 39 time.

Q. They were cognizant of the other teams and drivers hauling this same kind of wood so marked?

Objected to as improper, incompetent and hearsay, and assuming facts not proven. Overruled. Exception.

A. Yes, sir. The other teams did not come with the Earls every time; sometimes they all happened down together, on a 40 string-along; sometimes they wouldn't; that is the way it went; sometimes they all came together, sometimes they strung along; two or three together, sometimes one alone; George and Marcus Earl were present when I measured this wood; I did not measure separately for Marcus and George; I measured Marcus's wood first; they took the dimensions of the piles; I never figured out how much Marcus drew; we took

41 his measurements first to see how much he drew, what he claimed; I don't know whether it was his or not; afterwards I measured the other Earl's; it was included all together.

Q. Can you give a judgment as to how much there was of
Marcus's wood, that you first measured?

Objected to as improper and incompetent.
By the Court.— “I am a little in the dark. · You are trying

42 the case without commencing at the right end. I don't know how important it is. I don't know exactly how to rule without knowing a little more about it."

Plaintiff's Counsel.—“ When you come to hear all the evidence it will appear a portion of this wood came from another lot. We want to separate and show how much came from our lot; we don't claim the whole 100 cords; we claim 237

43 cords.” A. I measured in two lots; the first lot Marcus requested to measure.

1

44 Q. IIow much in your judgment was there in that lot?

Objected to as improper, incompetent and not the best evidence. Overruled. Exception.

A. I should judge between 65 and 70 cords. I didn't figure it up; that is my judgment as an expert.

Q. The balance of the whole amount was the other lot?

Objected to as improper and incompetent. Overruled. 45 Exception.

A. Yes, sir. I cannot give the names of all the teamsters who delivered that wood with the Earls; one or two of the Holmeses; I don't know as there was a man by the name of Wells; there was a man by the name of Cooper; Will Cooper, I think; it is hard for me to remember, only there was more

than one man named Holmes; I cannot say who drew the 46 wood, because I can't remember; I think Fred. IIolmes was

one, and a man by the name of Cooper; I think there were two Coopers; one was Will; I know the other was a Cooper, but I don't know his first name; there was one man by the name of Spencer, I believe; I cannot say it was James Spencer.

On his re-cross-examination he stated: I know George Earl's teams; I don't know how many teams he owns; his boys 47 drive them; I supposed they were his; not all the men I have

named who hauled timber there were his boys; I mean his sons; I cannot say how many teams he had; a great many

; teams hauled pulp wood there; I could not say how the course of a year, not several hundred, but more than one hundred.

many in

Oliver Ileavener, sworn as a witness for plaintiff, testified: 48

I know the plaintiff, Talcott Wells, and I know the North Gouverneur Tract, town of Forestport; in the winter of 1898 and 1899 I cut pulp wood for him on that tract; and three other men cut pulp wood for him on that tract; four in all;

what pulp wood was cut on this tract was piled there; each 49 one of us four had a job of our own; after the pulp wood was cut and piled and was in process of piling, we were waited upon and forbidden to move or further meddle with this pulp wood; I think Mr. Leavitt was the man; he said he acted for the State and was a State official. (It is admitted that he was assistant chief fish and game protector and forester.) He forbid us meddling with the timber; after that this timber was

50 marked; Mr. Earl did a good deal of marking; it was marked with an “S,” a good deal with blue paint; I don't know who

I directed it to be marked; I saw VIr. Earl going around with a paint cup at different times; after this timber was marked it was measured by Fred. Wells, who lives at Port Leyden; I don't remember seeing them go right at marking them; Fred. Wells is a man employed to measure timber, and could tell

51 of it; I was with him; he measured these piles cut by these

I was with him; after this timber was marked in this way, I saw people moving it away from this lot; they

, I moved it with team by sleighs; they began along in January, I think; they drew it all off the Gouverneur Tract; I saw men there; I saw Mr. Earl; I saw Mr. Leavitt; I saw Mr. George Earl, Marcus Earl and Jir. Leavitt, at different times; I saw

52 Mr. Wait there; I didn't know as they had drawn much away; I saw him there during the time of the drawing.

On his cross-examination he stated: I don't remember the occasion that you was up on the lot with Mr. Leavitt and Wait; I wasn't at the tract when you was; Mr. Leavitt was around there two different times, after they commenced drawing; this timber called pulp wood was cut about 12 to 16 feet long; some large enough to saw up into timber; it is not a 53 fact that most of it was large timber; I do not know to what place this timber was taken from this lot; I cut 22 1-2 corils I think.

four men;

54 Q. About how many trees?

Objected to as incompetent and immaterial. Overruled. Exception.

A. Oh, perhaps, a couple hundred; 230 perhaps.

with me;

Fred. H. Wells, sworn for plaintiff, testified as follows:

I reside at Port Leyden and know the plaintiff, Talcott 55 Wells, and have been on this North Gouverneur Tract; it is

part of my business to measure timber for people, and I have measured a great deal of timber; I was called upon by the plaintiff to measure timber upon the Gouverneur Tract, in 1898 and 1899; I measured four jobs; Mr. Heavener was

I saw the mark on this timber; it was marked with “S” in blue paint; I have forgotten when I measured this

timber; I kept a memoranda of it; I have the book I measured 56

in; referring to that I find I went on the lot the 27th day of January; the result of the measurements was 247 1-2 cords; the amount of each job going to make that aggregate; Mr. Quay had 119 3-4 cords; F. Wells had 75 1-4 cords, and Mr. Heavener had 28 1-2 cords, and Mr. Kennedy had 24 1-4 cords; that makes 247 3-4 cords. During the winter after

I had measured I saw timber in Port Leyden with the same 57

mark on it; I saw this timber being drawn at different times during January and February; on the 13th of April I went to the pulp mill of the defendants and saw the foreman, Mr. Marmon, and saw piles of timber there marked with this mark; and we had a conversation with Mr. Marmon about the timber, or Hadley did; I did not hear it; after that I went with

Hadley to Dr. Johnston's and had a conversation with him 58 (it is admitted that a demand was made for the timber), and

Mr. Johnston refused to deliver it or pay for it; Mr. Johnston had not at any time stated to me how much per cord he paid for this timber; I had a talk with him; he didn't state