
    GENERAL COURT,
    MAY TERM, 1803.
    Gill vs. Cole.
    In an action of. trespass for jneene profits, the plain» titx recovers da* muges only for the-use and occupation of the land, mid not for trespasses committed during the same period. A recovery there* fore in such action is no bar to an action of* trespass. q. c. f.
    
    The moving of. fence rails is a, trespass, for which damages may be recovered m an action of trespass qt c- f. notwith* standing a recovery in an action for profits* unless that removal was necessary for ú.e use and occu* pation of the land
    Tiibspass quare clausum fregit, for breaking and , entering Gale's Struggle on the 1st January 1800, andJ removing a fence, with a continuando, on divers days, &c. between that day and-the 1st January 1801. The writ issued the 31st March 1801. The defendant pleaded non eul. and issue was joined—.a warrant of 3'esurvey issued, and plots were returned.
    It appeared in evidence at the trial, that on the 13th May 1794, the pláintiff’s lessee brought an action" of ejectment against the defendant for Cold’s Struggle and Strife. That at Máy term 1797, a verdict and judgment was obtained for the said lessee for a part of Cole’s Struggle. That on the 22d June 1797, the defendant removed that judgment to the court of appeals, by writ of error; that the judgment was affirmed in June 1800; that on the 29th of October 1800, a writ of habere facias possessionem issued, and possession was delivered to the plaintiff’s lessee on the 19th of March 1801; that the writ in this cause issued the 31st March 1801; that-on the 8th of July 1801, the plaintiff in this cause brought an action of trespass for mesne profits against the defendant, in Baltimore county court, for dispossessing the plaintiff of Cole’s Struggle and Strife, and for the use and occupation thereof from the 10th June 1793, until the 29th October 1800, to which action the defendant appeared and pleaded non cul, and issue was joined, and afterwards, in November 1802, the defendant confessed a judgment for S§30 damages, and costs..
    The plaintiff in this cause gave in evidence to the jury, that the defendant in the month of September 1799, removed 185 parinels of fence, from apart of Cole’s Struggle which liad, previous, to such removal. hem put up there by the defendant; and that the said part of Cole’s Struggle belonged to the plaintiff.
    The defendant then gave in evidence to the jury, the action of ejectment and recovery before mentioned, for the said part o(Cole’s Struggle, and the affirmance of the judgment and writ of possession aforesaid.
    The plaintiff further gave in evidence, that tiie defendant^ from the institution of the said action of ejectment,' to the execution of the said writ of possession, Was in the possession and occupation of the said part of said tract of land.
    And the'defendant also gave in evidence to thejury^ the proceedings on the action for mesne profits, brought in Baltimore county court as herein before mentioned.
    Whereupon the defendant, by his counsel, prayed the court ir> direct the jury, that the Vecovery in the said action for mesne profits was a bar to the plaintiff’s recovery for the trespass alleged to have been committed, and therefore that the plaintiff was not entitled to recover in the present action.
    
      Martin, (Attorney Genera!,) and Key, for the plaintiff. ' . . -:
    
      Hollingsworth and Mason, for the defendant.
    They cited Run. Eject. 164, 165, 3 66, 167.
   Chase, Ch. J.

The Court are of opinion, that it; an action for the mesne profits, the plain!iff recovers damages for the use and occupation of the land, and that a recovery in such action is no bar to an action of trespass, for a trespass committed on the land during the said time for which the recovery was had for the mesne profils.

The court are also of opinion, that the removing of the fence in this case is a trespass, unless it appears to the jury that such removal was necessary for using and cultivating the land, and was made for that purpose.

The defendant excepted. Verdict and judgment for the plaintiff; and the defendant appealed to the Court of Appeals. ,

The Coubt oe Appeals at June term, 1805., affirmed the judgment of the General Court.  