
    Horace White et al. versus Oliver Moseley et al.
    
    The plaintiffs being owners of a close and a mill thereon, on the north side of a rivet, and their mill-dam being rightfully extended to land on the other side, which they did not own, the defendants crossed the river below the plaintiffs’ land and destroyed a part of the datn on the south side, and having effected their object, they recrossed the river at the same place and went upon the plaintiffs’ close. It was held, that the destruction of the dam and the entry upon the close were distinct trespasses, so that a judgment in trespass quote cl.fr. for the latter would not be a bar to a like action for the former.
    
      Held also, that in trespass quarecl.fr. for the destruction of the dam, the plaintiffs were entitled to recover consequential damages for the interruption of the use of their mill, this injury being set forth in the declaration.
    Trespass quart clausum fregit for breaking down and destroying part of a mill-dam belonging to the plaintiffs. The general issue was pleaded and joined. Also, a former suit and recovery for the same cause of action. The plaintiffs replied that the former suit was not for the same cause of action ; and thereupon issue was joined. The cause was tried before Parker C. J. The plaintiffs were in possession, claiming title, of a parcel of land on which they had a mill, on the north side of the stream, and they, and those before them, had extended the mill-dam quite across the stream to the south bank, not claiming any title to the land on that side, but having occupied it in this manner for more than fifty years.
    The evidence on the second issue was only the record of the two actions, and by direction of the judge, the jury found this issue for the plaintiffs; but it was admitted, that the act complained of in the former suit, for which damages were given, was the passing over the mill-lot by the defendants, after they had returned from the south side of the river, and had destroyed a part of the dam.
    On the first issue it was proved, that the defendants, with a number of other persons, crossed the stream at a fording-place about twenty rods below the mill-lot, and went to the south end of the dam, and with force and violence broke and tore up a part of the dam. No justification or excuse for this act was pleaded or proved. The defendants then recrossed the river at the fording-place, and went upon the mill-lot and about tfie mill The only defence was, that the trespass sued for in this action, was the same which had been sued for in a foi- • mer action ; so that the second action could not be maintained. This was overruled, and a verdict was returned for the plaintiffs for reasonable damages.
    • Damages were assessed for the. cost of repairing the dam, and also for interruption to the use of the mill or diminution of profits, occasioned by the water flowing through the breach in the -dam and by that means falling too low for the w'orlting of the mill ; and it was objected that damages for this latter cause could not be recovered in this action.
    If the Court should determine that the issue on the second plea ought to have been found for the defendants, the plaintiffs were to become nonsuit; otherwise judgment was to be rendered for the plaintiffs, either for the whole damages, or with a deduction of the damages assessed on account of the interruption of the mill, as the Court should order.
    
      Sept. 15th.
    
    
      J. H. Jlshmun and Blair, for the defendants.
    The plaintiffs, by their allegations in the former action, confined themselves to a recovery for the injury done on the north side of the river They now sue for the damage done on the south side. We contend that there was but one trespass. Where there is only ope act, or a series of acts in pursuance of one object and one general plan, only one trespass is committed. Here there is but one close, for the lands described in both actions adjoin ; all the acts are by one body of men, in concert, pursuing the same object. For a single transaction, the plaintiff can recover but one satisfaction. Hudson v. Lee, Moor, 268; Fetter v. Beale, Holt, 12; Hob. 94. A single contract supports but one action; Hawkins v. Cardee, 1 Salk. 65; 1 Ld Raym. 360; Smith v. Jones, 15 Johns. R. 229; Smith v Whitney, 11 Mass. R. 445; and the same principle applies in cases of tort. Farrington v. Payne, 15 Johns. R. 432. The plaintiffs’ action and recovery for a part of the trespass, are as much a.bar as if they bad recovered for the whole. Phillips v. Berick, 16 Johns. R. 136. A former judgment is £ bar to a. subsequent action, where the same evidence will support either action. Kitchen v. Campbell, 3 Wils. 304; Lechmore v. Toplady, 1 Show. 146; Put v. Rawsterne, T. Raym. 472; S. C. 2 Show. 211. If the plaintiffs had in the first suit described the whole close properly, and in one count had set out all the mischief done, they might unquestionably have recovered for the whole. It was their own loches to narrow their claim by their mode of declaring in the first action, and the case is just as if they had neglected to bring a witness to prove a part of their claim In the form.er "action, reported in 5 Pick. 230, the question was, whether the plaintiffs could give evidence of the injury now complained of, in aggravation of damages, and the Court held that they could not. It is not to be inferred, however, that this is a distinct cause of action ; but the point was, that it was not included in the declaration. Hammond’s N. P. 89.
    Damages for the interruption of the mill ought not to have been assessed. The action is trespass quare clausum fregit, and the mill is not upon the close described.
    
      Lathrop and Bates, for the plaintiffs,
    said there were two distinct acts of trespass. One trespass was completed before the other was begun. The same evidence will not support each.
    
      Jlshmun said,
    in reply, that Moseley was sued in the former action. He went upon the mill-lot only, and the chief justice properly instructed the jury, that if he stood there encouraging the others who were upon the close now described, he was a trespasser with them. If therefore this action is sustained, he subjected himself at the same moment to two actions, and while he had in view but one design. This shows that only one action ought to have been brought. If the defendants were merely returning home from the mischief done, there was clearly but one trespass.
    
      Sept 17 th
    
   Per Curiam.

The question is, whether the acts of the defendants constitute more than one cause of action. If only one, then the former judgment is a bar to the present action, and it was either the misfortur > or the neglect of the plaintiffs, that they did not recover in the former suit damages for all the injury they sustained. The defendants went upon one close and destroyed part of the mill-dam, and then went upon the other close. If they had gone upon this other close in order to complete their design, there would have been but one trespass, and the circumstance that they passed over the land of a stranger in going from one close to the other would be immaterial. But it seems to us, that the object of the defendants was to destroy the mill-dam, and this was effected before they recrossed the river; and their going upon the other close was rather accidental and not with any reference to the mill-dam. The former judgment therefore is not a bar to this action.

A question is raised in regard to the consequential damages. The interruption to the use of the mill and the diminution of the plaintiffs’ profits on that account, were alleged in the declaration, and proved at the trial ; and we think this was right. The plaintiffs are entitled to recover for all the damage they suffered by reason of the trespass.

Judgment according to verdict.  