The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-09-27
Wyatt Nave Admr

\ g. n. r r Company,
VS.. 1888
Wyatt Moye Admr
This Is an action OF trespass commenced
by defendants mtestate, in his lifetime,
against the plaintiff in error, TO recover
damages for the construction of Rail-
road through the premises Of defendants
in,estate The second count Is for the re.
coyery Of damage. for obstuctng streets,
aud Rendering lle same impassable
There was demurrer fled to both
counts aud it Is agreed by counsel on the
margin Of the record that the demurrer
was overruled No Judgment OF the
court appears in the record.
The general issue was relied on az de-
fence to both counts, and the cause was
ubmitted to jury and verdict rendered
for the defendant in error Tor $3.50, and
! Judgment entered according. motion
for a new trial was then made which was
refused and this Judgment of the court
excepted to, and exceptions filed, and the
case brought to this court by writ of
error.
We shall not notice the assignment Of
error upon the Judgment Of the court
oveuuling the demurrer to the compliant
as this ground is not relied on in the
argument OF the case here
The first ground Of error assigned is
chat the court erred in admitting the deed
from an Indian to QUE Prewett as tcsti-
mony.
The special ground of exception is not
stated IN the assignment, but we are re-
,erred to the pages OF the record showing
the deed and the objections made in the
court below. The record states that the
deed and certificates thereto were offered
In evidence by the plaintiff below, and
that defendant below objected to the
reading of the decd, because not made
and certified TO according to the require
ment Of the treaty with Cnickasaw tribe
)f Indians, and plaintiff IN error intro
luced evidence showing that Leatty
lones was an Indian of the Ghickasaw
tribe and a reseree.
Neither the assignment, record or bnei
lf counsel point to the precise error com
plained Of The plaintiff in error should
nave specified both in the court below
md nis assignment here, in what respec
he deed or the certificate were not ac
,ording TO the requirements OF the treaty
lluded to otherwise this court nigh
originate and decide points which were
not urged in the court below.
:. - errors or objections which do no
] g,stdqff ~ ists s.1'---'. t4-i s - si'-a--ss-
below
The second ground Of error relied on
4. that the court erred in excluding th'
1uestions pro ounded to witness Maye
md strong in reference to incidenIa
benefits &c.
There was no error in the ruling OF tn
,ourt in thi, respect, see Renrice "
p Wallace. 81 Miss. r. l72. lsom VS.. Til
Miss. Cen. R. R. SO Miss R. p. 300, au
Brown Va. Beatty "a Miss. X. p. ~
The third ground of error relied on
that the court erred in excluding the d
position of Reuben Davis, who testih.
that before the tresposs complained OF, q
p. endants iutestate gave his consent
Davis the agent Of the plaintiff IN er'
hat the road might be construct
hourh his premises, that he would n
claim damages, and he Davis need n
at baye a iury assembled 10 asses the Dan
,es but could 20 on with the complet
. 1f the road.
+" tits insisted for plaintiff in error tn
ei. tbis evidence was incompetent because
set up parol grant of the perpetual rig
: # way and permanent interest IN
lands. And second, that even u such
contract or parole grant were yalld ~ u
ie regpect. there is no consideration ior II
e his case. and It is consequently vold'
Those objections to the testimony
. witness ere untenable on both GROUNDS,
= T,r.t h will be obsoryed that II q
O.. we're a case coming within the operall
aey If tbe statute Of frauds-the 2Jth Char
In Fngiand-yet there is a wide dlilefeI
> hetween the language Of ourstatuleCod'
- III and that MS well % the statutes OF
Il. States. from which decisions are quo
mo. IN the brief Of counsel for defendant
error. The words 'or any interest ~
concerning them" contained III the l.
sE. isb statutes are omitted in ours.
Rpt the true reasons why the o9eelI
~ ,rc not tenable is, that the matter SET
NOT a contract at oil, and never
LIN, az sueh upon dolendants IN
ng il ,nsa ,,t,' mi il was a mere license OF
,,i..ion revooabe at any peuod uh
g. - nton s,ch revocation would operat
rrand or injury upon the party 70 "n
= = n'os Granted. And not depending
, tbt tnv consideration 70 support" my ~ =
,ny other executed, gratulty OF CIV,
."-Gs .ase here Is even stronger thah INN
,lointiif in error for this Is not an ac
r. enforce a contract, but deience, Z
-esJ .c,ion Of trospass for doing what TINS
80 sbows plaintiff below PERM
,d l.oensed to be done. 10 Is not al
- Han n charge any person, but dei
's7 At .''' ,.1tgr,a the defendant below irc
'oly trespass. ..-. .,.,,,oro,s On
,a.. See brief Of defendant IN err
We are OF opinion therefore i .naD I I
7 srror 10 have excluded this testltuon =.
- The fourth assignment OF error p = y !,
sale Of ,be court erred in giving the . :
'ctully M ;nstr1ctions. We have eAainil'eV
i, iocs Of '.s,ruc,ions and think there was no
euel avce,,t the 10Th instruction may p0
ncll a. III. objection that as a matter Q
. without the inference "niou Ju.5
lurnish "i'u9 ~, drsv from the circumsianc
DWARF, evidence, dedication c'nn9l i,5 Ds 52,'9' Of
4, ,,roof u.er for any iength o.
eou1o! Sd. ,he assent OF the owners oi w
nc O'' WI Gl,n 1rraet WV ruIe Is that the length Of
, 10 call ~ w ii'..-.,.5 sbort oP ten years
friends ot ENJOY hieHt - on the Al
cling ss ni.hes no rule OF Ia" W"
pioiit a. .yLich the court can piohoubVee y
vAvs ,ba sid of Jury, but it is q matter =
I or d. the jury to consider as 5ena' enc
A'u nroye ! n aciua dedication, ana an
-.o-1l.oe oc .oUce by the public which they y
,ion, sSal,1@ ior fae ai rom any time second Gree
grssat "a, Fv y III. Is Z. 662, lth Edit. and