Rogan v. Perry

By the Court, Whitoh C., J. This case differs from that of Yerbeck vs. Yerbeck, decided at the present term, {a/nte 159), in this : that the notice which was filed with the plea of the general issue in the justice’s court, by the defendant, was sufficient to show that the title to land might be drawn in question at the trial. The justice therefore was correct in certifying the case to the circuit court in accordance with the statute. But we are satisfied that the judgment of non-suit which was rendered in the circuit court cannot be sustained. The plaintiff’s testimony shewed that the wood which was the subject of controversy, was cut and corded by the plaintiff’s workman, and that the defendant took and carried it away. The testimony further shewed that the land upon which the trees were growing, from which the wood was made, was open and unenclosed. This was all that the plaintiff was obliged to show to entitle himself, prima fade, to maintain this action. He had the possession of the property, and this was sufficient to enable him to maintain the action against a mere wrong doer; and according to the testimony, the defendant must- be regarded as a wrong doer merely. (Coffin vs. Anderson, 4 Blackf. R., 395; Armorey vs. Delamire, 1 Smith’s Lead. Cas., 151, and the cases there referred to.) "We have not been furnished with a brief on the part of the [197] respondent, and do not know upon wkat lie relies to sustain the judgment which he obtained in the circuit court. The bill of exceptions shows that the motion for a nonsuit which he made, was founded upon the alleged failure of the plaintiff to show “ the wood to be his property, or that the same was in his possession at-the time the defendant took it away.” We have stated that the testimony showed the possession of the propeTty to be in the plaintiff. Of this it appears to us there can be no doubt. He cut and corded the wood. This was taking possession in the ordinary mode, and we cannot hold that he was required to do more in order to reduce property of this description to possession. Judgment reversed with costs, and new trial ordered.