1. Did defendant wrongfully and unlawfully cut and remove timber from the lands of plaintiff, as alleged in the complaint? Answer: "Yes."
2. What damage, if any, is plaintiff entitled to recover of the defendant? Answer: "$330."
From the judgment rendered, defendant appealed. This appeal involves the same questions that are discussed and decided in the case of L. H. Bradshaw v. Hilton Lumber Co., at this term, ante, 219, except the point at which the diameter is to be taken is fixed in the deed. In addition to the matters of law presented in that case, the defendant requested the court to charge the jury that there is no evidence in this case which would justify the jury in finding that the defendant wrongfully and unlawfully cut any timber or trees of the plaintiff, and that the jury should answer the first issue "No."
Upon an examination of the evidence, we find that there is evidence sufficient to go to the jury and that his Honor properly refused to give such instructions. We think it is needless to discuss the evidence or point it out in this opinion.
No error.
(827)