
    Shoemaker v. Atkin.
    ' 1. Pleading. Joinder in same count of damages to freehold and personalty. Under the Code pleading, in the same declaration or same count of the declaration, claims for damages by the same trespass both to the freehold and to personal property, may be joined.
    2. Judges. Duly to confine themselves to case on Inal. It is the duty of a judge trying a case to confine his instructions to the issues made and the proof in the case. It is error to speak to the jury of other litigation assumed to involve the same trespass then on trial in the absence of anything in regard thereto in the pleadings or proof
    
      FROM. K.VOX.
    Appeal in error from the Circuit Court of Knox, October Term, 1870. E. T. Hall, J.
    Baxter, for plaintiff in error:
    The declaration in this case is for a trespass on plaintiff’s real estate, and wantonly and .forcibly pulling down plaintiff’s furnace, buildings and machinery, and taking and carrying away said machinery, and destroying or converting the same to their own use.
    Defendants plead not guilty.
    On this issue the parties went before the “country.” On the trial plaintiff offered to prove the value of the boilers and other machinery. To this evidence defendant objected, and the court sustained the exception, as the record says, “for the reason that, a recovery had been had in an action at Knoxville-between the same parties for the machinery,” etc.
    
      This is an assumption of a fact by the court not presented by the defendant in his plea or shown in evidence, and is a plain error.
    Upon the question of damages the court permitted evidence, after objection by plaintiff, to show that plaintiff’s mine could not be profitably mined. This was, we suppose, to satisfy the jury that defendant, did a good thing for the plaintiff in pulling down, his boilers and machinery, as he thereby forced the plaintiff to abandon an unprofitable enterprise — benefit-ting him instead of damaging him!!
    This, we think, is error.
    Hicks, for defendant in error:
    1. There was .no error iri admitting evidence to> show that the lead mine was worthless, for the plaintiffs were seeking to recover damages for the supposed; loss of profits which they might have realized by working the mine. Their witnesses based their estimate of damages on those supposed profits.
    But if it was error, it was not such error as could injure the plaintiffs; for, as they were not entitled to-damages for the supposed loss, they could not b.e injured by proof that there was in fact no such loss.
    2. It was not error to reject evidence of damages for which a recovery had already been- had in a previous action.
    But if it was error, it was not an error affecting the merits for which this court will reverse.
    The fact of the previous recovery was, on the trial in the Circuit Court, treated by all parties as granted, but the admission by all parties of the former recovery is not incorporated in the bill of exceptions. The bill of exceptions sets forth the testimony but not the admissions on the trial; but perhaps it sufficiently appears in the bill of exceptions that the fact of the former recovery, when treated as a granted fact by the court, was not denied, and was therefore virtually admitted by the plaintiffs and their counsel.
    The' cause in which that former recovery was had (S. T. Atkin, in error, v. Smith & Shoemaker), was finally determined in this court at last term, and will be remembered by some of your Honors.
    It would certainly be a highly technical rule, not going to the merits, that would require a reversal in this case.
   McFarland, L,

delivered the opinion of the court.

Upon the trial of this cause the plaintiffs recovered a verdict for twenty-five dollars damages, and moved for a new trial, which was refused, and judgment rendered in their favor for this sum, from which they have .appealed in error.

The declaration, in substance, avers that the plaintiffs were the owners and possessed of a certain tract of land in Monroe county, upon which they were mining for lead and other' minerals, and while so possessed the defendant, by himself and others, with force and arms, entered upon said premises and wantonly and forcibly pulled down plaintiff’s furnace buildings and machinery erected thereon, and took and carried said machinery away, and destroyed or converted the same to their own use. The damages were laid at $15,000.

To this the defendant pleaded not guilty.

There was evidence showing that the plaintiffs were in possession under a lease for mining purposes, and had put up machinery to be used in the business, consisting of engines and pumps, with the necessary walls of brick around and attached to them, and perhaps other machinery. The defendant caused this machinery, or part of it, to be pulled down and removed. The plaintiff proposed to prove the value of the machinery so removed. To this the defendant’s counsel objected, and the ' court sustained the objection, “for the reason,” in the language of the bill of exceptions, “that a recovery had been had in an action at Knoxville, between the same parties, for the machinery and anything not permanently attached to the freehold.”

.In his charge to the jury the Circuit Judge said: “That this was an action of trespass for injuries to the freehold; that the plaintiffs could not recover in this action for personal property not attached to the freehold, as a recovery had been had for that in another action at Knoxville; but they might recover for injuries to the freehold if the proof authorized it.”

There is no allusion in the proof, or elsewhere in the record, to any former. recovery for the same cause of action, nor is there anything to show that the fact was admitted; and the ground stated by the Circuit Judge for his action is not justified by the record.

Nor do we regard this as technically an action of trespass quare clausum fregit to try the title to the land, nor does the plea raise this issue. It is perhaps more properly to be regarded as an action, under the provisions of the Code, “upon the facts of case,” rather than as being strictly either an action for trespass to land or for trespass to personal property. The averment as to the ownership and possession of the lands, is stated more by way of inducement, while the gist of the action is the destruction or conversion of the personal property, and we are of opinion the damages for the value of the personal property may be recovered, and, at the same time, the damages to the freehold resulting from the same trespass. We see no reason why a plaintiff should be driven to two actions — the one for the injury to the freehold, the other for the value of the personal property destroyed or taken at the same time — or, indeed, that he should be required to have two counts in his declaration. See on this subject, Sedgewick on the Measure of damages, 627 and notes, and 630.

If the plaintiff’s house and goods are burned by the defendant, there can be no sound reasoning why he should be required to resort to two actions, — the one to recover the value of the goods, the other to recover the injury to the freehold by the loss of the house. And under our Code, one count, stating accurately the entire facts of the case, would be sufficient.

Upon the record before us, there was no ground for the Circuit Judge’s holding, as to a former recovery. No such fact appears either -in the pleadings or proof.

Let the ■ judgment be reversed and a new trial awarded.  