
    Nathan Pond versus Amos Pond.
    A proceeding in the Probate Court, pursuant to an agreement between tenants in common, for partition of the estate, although incompetent to effect the partition, was held equivalent to a license from each of the tenants, that each might enter and occupy the part assigned to him by such intended partition, so as to protect him from the penalties of the statute of 1785, c. 63, until the commencement of legal process for partition, which was holden to be a revocation of such license.
    This was an action of trespass, upon the statute of 1785, c. 62, for sundry penalties alleged to have been incurred by the defendant, for y. violation of the provisions of that act.
    The defendant pleaded the general issue, which was joined; and also a license from the plaintiff to cut down and carry away the trees mentioned in the plaintiff’s declaration ; which was traversed by the plaintiff, and issue joined thereon.
    On the trial of these issues before Wilde, J., at the last February term in this county, it appeared that the defendant had, between June, 1812, and the day of the date of the plaintiff’s writ, cut down and carried away several trees, on the close described in tito declaration, which was a part of the land which descended to the plaintiff and defendant and their brothers and sisters, as children and heirs of Benjamin Pond, deceased, and which they held in common.
    The defendant proved, and relied, in his defence, on the facts reported by the judge in the case of Nathan Pond &f Al., Petitioners, vs. Amos Pond &f Al., and which are recited in the report of that case, ante, vol. xiii. p. 413.
    The judge instructed the jury that, although the proceedings in the probate office, and the agreement of the parties in relation thereto, did not amount to a legal * partition of the estate, as was intended, yet they might be considered as a consent, by each party, that each might enter and occupy the part assigned to him by that division, and that those proceedings and agreement were a sufficient license and justification of all the cutting between June, 1812, and September, 1813, when the plaintiff presented his petition for partition ; which petition the judge instructed the jury was a revocation of said license, and therefore that the trespasses, proved to have been committed after wards by the defendant, were without justification.
    The jury returned a verdict pursuant to the said instructions; and if they were right, the verdict was to stand. But if the Court should be of opinion that the proceedings in the process for partition were no revocation of the license, the verdict was to be set aside, and the plaintiff to become nonsuit; or if the Court should be of opinion that the proceedings in the Probate Court and the said agreement were, in law, no license or justification for any of the trespasses complained of, the parties agreed that the verdict should be altered, by adding 66 dollars 50 cents to the damages found by the jury, and judgment entered for the plaintiff, agreeably to the verdict thus altered.
    
      Haven for the plaintiff.
    
      Richardson for the defendant.
   Per Curiam.

Let judgment be entered according to the verdict  