Page:North Dakota Reports (vol. 1).pdf/165

 Job’s land Sept. 22. William Hermanson testified that on the 20th day of September he saw two men go to that point on defendant’s land to which plaintiff said that he traced the fire. The two men were then working at the fire. Witness did not see them start it. They stopped work because it began to rain. Defendant’s horse came after them and they went to defendant’s house. Witness saw smoke at the same point after the men had left.

The deposition of Luke Holman was read in evidence for the defendant, but in the abstract nothing of it appears except two questions, with the objections and rulings, but without the answers.

Messrs. Greene & Hildreth, forthe appellant, argued: That the court erred in charging that there was no evidence that respondent set the fire or authorized it; that there was circumstantial evidence from which the jury might have found otherwise; citing, Field v. N. Y. R. R. Co.,32 N. Y. 339; Kaisen v. Milwaukee, etc., R. R. Co., 29 Minn. 12; Adams v. Roberts, 2 How. U. S. 486; Jewell vs. Jewell, 1 id. 219; Greenleaf v. Birth, 9 Pet. 292. That Holman’s testimony was incompetent, and immaterial, and hearsay; citing, King v. Frost, 28 Minn. 417; Carrig v. Oakes, 110 Mass. 144; Pickering v. Cambridge, 144 id. 244.

Messrs Ball & Smith for the respondent.

The plaintiff and appellant is seeking by this suit to recover damages sustained by him by reason of the destruction of his grain by fire. He claims that the fire was set by the defendant, or his agents or servants on defendant’s land, and spread to the farm of the plaintiff, where it burned his grain. The jury rendered a verdict for defendant, and the plaintiff asks this court to review the proceedings in the court below. It is said that the evidence is insufficient to support the verdict. To sustain this claim, we must hold that the trial court should have directed a verdict for the plaintiff. We have carefully examined the evidence, and without discussing it, we are clearly of the opinion that for the court to have directed a verdict for the plaintiff would have been unwarranted. The