
    Gardiner vers. Purrington.
    In Trover for Trees, the Plaintiffs’ Title to Land in another County, on which they were cut, cannot be given in Evidence where the Action might have been brought in that County.
    THIS is an Action of Trover brought to the Inferiour Court in Suffolk for a Quantity of Timber cut in the County of Cumberland.
    
    
      1763.
    The Question was, whether the Title of Land can be given in Evidence in Trover in another County than where the Land lies.
    1 Bacon, 35; l Salk. 290, Brown vs. Hedges; Mod. Cases, 322, Walrond vs. Van Moses, () were cited in Favour of the Action; and it was said by the Council on this Side, that the giving Title under this Action did not bar or affect an Action of Ejectment brought in the County where the Land lies.
    
      Gridley.
    
    There is no special Pleading in Trover, except a Release, which admits the Conversion. The Title is often given in Trespass where the Possession is not clear, ’tis what the Law calls incidental; yet ’tis necessary in Trespass; just so in Trover. The Man cuts down the Timber—I may bring Trespass; so I may Trover. The Timber is mine after it is cut down; the Tort never shall give him Property. It is mine in the Timber as it is mine in the Tree, and I may bring my Action: Now how can I prove my Property, unless I can give my Title in Evidence? When the Possession seems mutual, it can never be determined, and though my own, (the Thing may be,) if I may not be admitted, I may never recover my own. In the Admiralty, many Things that are not naturally within its Jurisdiction may be tried there. Difference between an Inconvenience and a Mischief—whenever the Law has once considered of this, it vanishes; in determining what is an Inconvenience, the Law is settled.
    
      Just. Russell.
    
    Whether this Case is not different from the Case of Mod. Cases, () where it was admitted for the Inconvenience, and is it not the same in Effect as if the Title was determined?
    
      Ch. Just.
    
    Whether it will not operate against another Rule of Law about Titles of Land coming in Question in another County?
    
      Auchmuty.
    
    The Title is not determined.
    
      Ch. Just.
    
    As my Brother Russell observes, is it not the same Thing? It is not whether Trover is a transitory Action, () but whether that which is of the Nature of a real one shall be given in Evidence.
    
      Mr. Gridley cites Styles, 331.
    
      
      Mr. Kent.
    
    1 Bacon, 32. Mod. Cases, . A personal Action may grow into a real one as here. 1 Lilly, 20.
    
      
      (1) Anon., cited in Walrond v. Van Moses, 8 Mod. 322.
    
    
      
      (2) The case cited in Walrond v. Van Moses, ub. sup., is as follows: “Nota. At the trial of this cause a case was cited that trover lay in England for timber taken away and converted in Ireland; and this was by the opinion of the late Chief Justice Holt, though it was objected that it might bring the title of lands in Ireland in question, which could not be tried here; but he answered that as trover was a transitory action it might be brought here for a conversion in Ireland; nor shall any incident question which may arise on the same bar the plaintiff of such action; for if it should, then a person being in England can have no remedy here when the defendant is guilty of a trover in Ireland, and comes from thence into this kingdom.”
    
    
      
      (3) Trover for cutting down trees is a transitory action. Steph. Nisi Prius, 2695. Brown v. Hedges, ub. sup. So also an action of trespass de bonis asportatis for burning down a small house erected for a temporary purpose, and without a cellar. 15 Pick. 156.
    
   The Court

were of Opinion that the Cases cited in Favour of this Evidence respected only Cases of Necessity, and where they could not be tried in the same County, which not being the Case here, they determined that in this Case it could not be admitted. () 
      
      (4) Actions, personal in form, which involve or bring in issue the title to land, have been held to become thereby real, within the meaning of the statutes concerning costs and the jurisdiction of justices of the peace. 4 Pick. 169. 10 Pick. 473. But the point here decided appears to be, not that the action becomes local, but that the title to real estate in another county shall not incidentally be given in evidence to support a transitory action which might have been brought in that county. This seems a difficult position to support, as the title to the land is only offered as a means of proving a right to possession of the trees when converted, on which latter point alone is the judgment conclusive.
     