a special property in the timber, to maintain an action against third persons for an injury to it, whilst it is growing, yet when severed it becomes the property of the owner of the soil. It is not necessary to have actual possession to maintain an action of trespass. Lit. 71. F. N. B. 91. Bro. Ab. Trespass, pl. 216. Here the trees had been cut down some time before the defendant carried them away, and the plaintiff was then clearly entitled to them. He cited Alleyn, 83. Cro. Car. 242. 13 Hen. VII. 9, 6. Palm. 327. Bearcroft, for defendant. This was a general verdict, with damages in all the counts, and not for the mere carrying the timber away. [But this the court denied, and said that the case was meant to be on the last count, de bonis asportatis.] There is a distinction between trespass vi et armis, and trespass on the case. Property and possession must concur to support this action. Perhaps not actual possession is necessary; but here the plaintiff never had any possession. As to the case in Alleyn, 83, the point there determined was not before the court. SED PER CURIAM. The plaintiff had sufficient possession to maintain this action. Judgment for plaintiff. COLOMBIES against SLIM. PLAINTIFF declared on a promissory note, for 1007. drawn by one T. Moses, and payable to the defendant, whom the plaintiff stated to be the immediate indorser to the bill. The defendant pleaded, that the first indorsement he ever made on the bill was made (a) See 1 Taunt. 109. 1772. WARD against ANDREWS. 1772. Trinity Term An indorsee of notice that a prior action is a bill, without depending thereon, may, notwithstanding the pendency of such action, commence an action against the same defendant (a). 1772. COLOMBIES against SLIM. 1772. Trinity Term. A declaration in case against an to one J. Graham, to whom the defendant delivered the bill; and that before the plaintiff's commencement of this action, the said J. Graham commenced an action on the bill against the present defendant, which action was still pending. The plea did not state that the plaintiff had ever any notice of the action being commenced. To this plea the plaintiff demurred generally, and defendant joined in demurrer. Davenport, for plaintiff. There are two objections to this plea: 1st, that it amounts to the general issue; and, 2d, that it is bad in substance. The plaintiff, being the holder of the bill, has no reason to enquire into what has been done by the person who indorsed it to him. It would hurt credit, if he was forced to enquire into what has been done by the prior holder. The Court were of opinion that the plea was bad, for the reasons urged by the plaintiff. The court thought that an indorsee, without notice, was not bound by any thing done by a former holder. But that if a bill be taken by an indorsee (knowing that a former action was depending) with a view to oppress the defendant, it might be otherwise. Judgment for plaintiff. HUNTER against EARL of DE LORAINE. THE HE declaration stated, that Henry, 'Earl of De Loraine (a) was summoned to answer William the Earl to have Hunter, in a plea of trespass on the case, and where Earl, stating been summon ed to answer,' upon, &c., with counts for goods sold and delivered, instead of at- &c. To this the defendant demurred as follows: For tached,' is bad (b). (a) It is to be observed, that the plaintiff did not allege the defendant to have "privilege of peerage." (b) See Tidd's Forms, 5th ed. 88. Sed Vide 1 Hen. Bla. 250. 1 Saunders, 318, n. 3. 1 Chitty on Pl. 288. 1772. HUNTER against LORAINE. that it is alleged by the said declaration, that the said Earl hath been summoned to answer the said William in a plea of trespass upon the case, whereas it ought EARL OF DE to have been attached, to answer the said William in the plea aforesaid, and not summoned ; and for that no summons lies in an action on the case on promises; and for that the said declaration is in many respects uncertain, insufficient, and wants form, &c. Joinder in demurrer. Lord Mansfield. The declaration is bad. In an action on the case, the first process is an attachment. Judgment for defendant. DAVIS against SAUNDERS and others. 1770. Mich. Term. in the proseful act, an accident, purely cution of a law THIS accidental, arise, no action can be supportgoods and chattels, (to wit) 200 casks of brandy, and ed for an injury, arising 200 casks of rum, of the plaintiffs, value 2007. there from such acthen being and found, took, and carried away, and cident. converted and disposed thereof to their own use. In the second count plaintiff declared, that the defendant, on the said 12th of March, at Topsham aforesaid, with force and arms, a certain sloop of the plaintiffs, value 100%, there then being and found, broke, damaged, and spoiled, whereby the plaintiff not only was obliged to lay out and expend, but did lay out and expend 107. in repairing and amending the said sloop, but was prevented and hindered from using his said sloop for three weeks then next following, and other injuries, &c. to the plaintiff's damage of 300l. The defendants having pleaded the general issue of not 1770. DAVIS against SAUNDERS and others. guilty, issue was thereupon joined, and the cause came on to be tried at the last assizes, held at Exeter, on Thursday, 9th August, 1770, before Mr. Justice Ashurst, when a verdict was found for the defendants on the first count of the declaration, and for the plaintiff on the second count, damages, 10/., costs, 40s., subject to the opinion of this honourable court on the following case: That the plaintiff was owner of a sloop, and the defendants owners of two other sloops. That having reason to believe there was a raft of brandy left in the sea by the smugglers at Torbay, several vessels went out in search of it. That John Descent was the first discoverer of the raft, and laid hold of it with his boat hook; but not being able to hold it, he left his boat hook sticking in the cable, and which boat hook remained visible above water. That Descent still continued there, and was about to return, but before he got up, Davis, the plaintiff, fixed his anchor to the cable to which the raft of casks was fastened, and drew them up to the bow of the vessel. That whilst Davis was getting in some of the casks, the defendants, Saunders and Full in one boat, and Cookes and Bartlett in the other, came up, and each got hold of another part of the raft. That whilst they had so hold, by the rolling of the sea, and blowing of the wind, their ships drove against the plaintiff's vessel, and did him damage to the amount of the verdict. That the casks which Cookes and Saunders took from the raft were immediately taken to the customs, and condemned in the Exchequer, no one laying a claim thereto. Whether the plaintiff is entitled to recover in this action for the damage done to his ship. Burland, Serjeant, for plaintiff. Plaintiff was the actual possessor of the raft. If in the prosecution of an unlawful attempt to dispossess a man of goods in his possession, a damage is done, trespass may be maintained. Even a person having an illegal possession, may support this action against any person but the legal owner. Cro. Eliz. 819. 5 Co. 24. (b). Stra. 777. 1 Salk. 290. 2 Saund. 47, c. Nor is the intent or design of the wrong doer to be much considered (a). Where a soldier, exercising, discharges his musket, and hurts another; or a person in shooting at one but, hits another, trespass will lie. Hob. 184. Stra. 596. The question here is, whether it was not an unlawful attempt to dispossess plaintiff, who was in the actual possession of the raft. Bro. Abr. 358. Mansfield, for defendant. The jury have found the fact of possession of the brandy against the plaintiff, and therefore they have found, on the first count, against him; this is decisive as to the second count; if he had no possession, defendant would not be guilty of wrongful act. Ld. Raym. 1399. Here the injury was merely accidental. It is true, that even if it had been through negligence, it must have been an action of trespass. Burland, in reply. When the first act was unlawful, though the injury had been intended to a third person, if an injury ensues to me, trespass lies. It is even so in the case of felony. If in prosecution of an unlawful act, a man is killed, it is murder. THE COURT decided generally for the defendants upon the whole declaration, being of opinion, that the original act of the defendants was not unlawful. Judgment for defendants. (a) 3 Wils. 309, 2 Bla. R. 832. 3 East, 599, 601. 1770. DAVIS against SAUNDERS and others. |