
    
      G. W. and F. F. Goodrich vs. Hiram Hathaway.
    That if A. sell B 20,000 feet of timber standing on A’s lot, and B goes on and cuts a part, he has sufficient possession to maintain-trespass on the freehold against a stranger who should cut and carry away the rest.
    That suth action is appealable, though the ad damnum does-not exceecUm dollars.
    
    This was an action of trespass' brought before" a. Justice of the Peace; demanding daffirigesten dollars. The'declaratión contained three counts'. The two fii*st: were for cutting and carrying away certain pine trees ; the third arid the last-count was for taking and carrying away five pine' saw-mill logs, the property of, and in the possession of, the plaintiffs. The cause was tried before the justice by a jury, who fóund a verdict for the-plaintiffs on the third count for the sum of ‡ dimages and their costs ■ arid the ¿aid justice entered judgment on the verdict for the plantiffs for ‡ damages, and" their costs, taxed’ at ‡ The defendant appealed from said judgment to the County Court next to be holden within and for the county of Franklin, which appeal was duly entered in said court; and afterwards at the April Term of said court, 1828, the plaintiffs filed their motion to dismiss said appeal, alledging that said action was riot appealable, and that said County Court had not jurisdiction thereof, and therefore prayed that the same might be dismissed; but said court at their adjourned Term, in June 1828, decided that they had jurisdiction of said appeal: wh’éreupori said action came on for trial before a jury ; and on the trial thé plaintiffs proved that one Samuel Haw-hins, in the month of December, 1825, was the owner of lot No. 146 in the town of St, Jllbuns, rind of a quantity of pine timber, standing on said lot,• and that during that month the said Samuel sold to the plaintiffs about twenty thousand feet, board measure, ot said timber, in which sale was included one large pine tree, then standing on said lot; and that in the' spring of A. D. 1826 the said Samuel conveyed said lot of land to William Hawkins,, reserving the timber sold to the plaintiffs as aforesaid ; that, soon after the said lot was conveyed as aforesaid, the plaintiffs purchased of the said William the residue of the- pine timber standing on said lot; that, after the purchase of the timber of the said Samuel, as aforesaid, and before and after the conveyance of the land, as-aforesaid, to the said William, and after the plaintiffs had purchased said timber of the said William Hawkins, the plaintiffs went on to said lot, cut and drew away a part of the timberpurchased ' as aforesaid of the said Samuel 8s William; and that afterwards, the defendant applied to the said William to purchase a part of said large pine tree, which was then standing on said lot; the said William informed the defendant that the plaintiffs owned said tree,, and that he had no right to sell the same; but told the defendant that he thought there would be no harm done if he cut the tree; after this the defendant cut said tree, and carried away about ten feet of the butt. Several weeks after said tree was cut, the plaintiffs with the said William, went to the said tree which had been sawed into three logs, which were then lying on said lot; and the plaintiffs there requested the said William to inform the defendant that he, the defendant, must not remove or saw said logs; and afterwards, and before said logs were removed or sawed, the said William informed the defendant as requested by the plaintiffs. The plaintiffs further introduced evidence tending to prove, and insisted that they had proved, that the defendant afterwards took and carried away said logs from said lot, and out of the possession of the plaintiffs, and converted the same to his own use. The court charged the jury that the plaintiffs, had not possession of the land, and therefore could not maintain trespass for cutting the tree; and that the property of the said logs, was, at the time they were cut, in William Hawkins; and unless the jury found that said logs were sold and delivered to the plaintiffs, after the same were cut or sawed from said tree, they must find a verdict for the defendant. To the said decision and -charge of tbe court, the plaintiffs excepted. The cause was removed to this court on a motion for a new trial founded on said exceptions.
    
      Fish and Saule for the plaintiffs, contended. 1. That the County Court had not jurisdiction of the appeal from the judgment of the justice, as the plaintiffs did not demand in damages in said action a sum exceeding ten dollars. — St at. p. 139, sec. 5.
    
      2. The cutting and carrying away by the plaintiffs a part of the timber purchased, with the consent of Hawkins, was a part performance of the contract, and gave the plaintiffs a legal title and possession of all the timber included in the parole contract.— Roherts on Frauds, 147,-8,-9, 153. — Sw. Dig. 261. — 6 East, '602, Crosby vs. Wadsworth. ■
    
    The defendant’s counsel submitted the case without any brief or argument.
   Hutchinson, J.

announced the opinion of the court. It appears by the case, that one Samuel Hawkins, owning a piece of land, sold to the plaintiffs about 20,000 feet, board measure, of the standing pine timber, including one large pine tree ; and then sold the land to William Hawkins, reserving the timber sold to ■the plaintiffs, as aforesaid. The plaintiffs then purchased of said William Hawkins the residue of the pine timber on said lot; and the defendant cut and carried away the large pine tree. Prior to this, the plaintiffs had entered, and cut and carried away a part of the timber they had thus bought of said Samuel and William.

The court instructed the jury, that this showing did not place plaintiffs sufficiently in possession to enable them to maintain trespass upon the freehold. We consider this instruction incorrect.- — ■ The plaintiffshaving made the two purchases of timber, and gone on to the land, and cut a part, had as much the possession of the land, for the purpose of getting off this timber for their own use, within the time agreed, or within a reasonable time, as if they had owned the land. Though William Hawkins told the defendant he apprehended no difficulty in his cutting the pine tree, he also told him it belonged to the plaintiffs, and that he had himself no right to it; and also told the defendant, before he took the whole, that the plaintiffs said he must not remove the same. The own er of the land sets up no claim, and the defendant is a stranger to the tide. -This virtually decides the question of jurisdiction.

Fisk and Soule, for the plaintiffs.

Richardson and Sheldon, for the defendants.

The action is properly an action of trespass upon the freehold. The plaintiffs having recovered upon the third count only, makes no difference about the appeal, which brings up the whole action.

: Further, though trover might have lain for the logs that were cut; so will trespass also, and trespass upon the freehold. The appeal is expressly given by the statute, which gives jurisdiction of such-actions to a justice of the peace. The decision of the County Court sustaining the appeal, was correct; but, for the errors in their charge to the jury, the judgment is reversed, and a new trial granted.  