The opinion of the court was delivered,

This .was an action on the case by McNeal v. Smith, for converting a number of saw-logs, brought by the former to the mill of the latter, and agreed to be sawed by him for the former, but converted by him to his own use, on the ground, as the testimony shows, that the logs were cut from land belonging to, and in his possession. The plea was “not guilty.”

The plaintiff proved the delivery and number of logs sent to the mill; a contract to saw them; the value of the lumber when sawed; and that he informed defendant where they were cut, or rather perhaps, where they were to be cut, viz., from the land of Alanson B. Smith, being the same land claimed by the defendant; a tender of money for sawing, and a demand for the lumber, a refusal by the defendant, and rested.

The defendant then opened and proved possession of the land on -which the logs were cut, and that it had been in his possession and occupancy since 1859; and other facts showing acts of ownership exercised by him over it for a number of years; with testimony in regard to the cutting of the timber and his forbidding McNeal cutting on the land. This possession under claim of ownership for many years ought to have raised a complete defence, unless it were shown in reply, that he had given authority to do the cutting himself, or by some one having power to authorize it, which was not done.

The answer to this testimony, was not an authority to cut the timber, from the defendant, but an estoppel, by declarations, such as that the defendant was only agent for the land on which the *167logs were cut; that it belonged to his brother, and that he had nothing to do with it, but as agent; that he supposed the purchase-money for the land belonged to his brother ; that he did not care how much Cole bought from A. B. Smith; that he had a good title, &c. These declarations were proved to have been often made by the defendant and to various people.

As I understand the facts, McNeal had bought the piece of land in controversy from A. B. Smith, and sold it to one Cole, who was in possession when the logs were delivered to defendant by McNeal to be sawed. How the title stood between them is of no consequence ; they both had title, directly or indirectly, under A. B'. Smith. It is enough here to say, that there was no dispute between them about the delivery of the logs by McNeal, from that piece of land.

After the plaintiff closed his rebutting testimony, the defendant offered to surrebut, by going into the relationship between him and A. B. Smith, and that the latter held the land in question in trust for him. This the court rejected. It was contained in two offers, both of which were disposed of in the same way.

It will be observed: first, this if admitted would have been no answer to the estoppel claimed, and of which there was abundant evidence to sustain it, if believed, to prevent the defendant holding the logs, if unquestionably cut from his land. He could not claim them, if cut with the permission of A. B. Smith, holding title as his trustee, and from a party who was not notified of that fact, and who was put off his guard to make inquiries by defendant’s declarations, and who had expended money and labor in reliance on these declarations.

To this answer to plaintiff’s claim,' defendant’s offer presented no reply. It was irrelevant as to that. Nor did the plea raise any issue of title to the locus in quo. Indeed the defendant’s own testimony showed its utter irrelevancy, having showed the actual occupancy of the land, and he did not need title to raise a question of constructive possession. We think, therefore, that the defendant was not injured by the rejection complained of, and we never reverse for immaterial errors. Nor do we think there was error, taking this view of the case, in that part of the charge which related to possession, although under other circumstances there would be. The case was put to the jury, I would say, exclusively, on the question of an estoppel, and as to which, and for which, no error is assigned. This, if found by the jury, was a perfect answer to defendant’s claim, without regard to title, and no doubt it was so found. This species of defence arises, when one misrepresents the truth, or by wilful silence misleads another not having knowledge of a particular fact, into error or loss, or induces him to do what he would not have done if he had known the truth, and where injury would ensue from permitting the misleading party *168to allege the truth: Commonwealth v. Moltz, 10 Barr 527. There are many other and later cases to the same effect. Seeing no error in the record,

This judgment is affirmed.