The trespass complained of, is that the defendant cut down and destroyed the trees of the plaintiff, and carried them 501] *away and converted them to his use. This the demurrer admits is true. The allegation is equivalent to asserting in direct terms, that the trees so cut down, destroyed and converted, were the property of the plaintiff. Trespass will lie for injury to the trees of the plaintiff, without alleging a trespass for breaking and entering the close, the party is not bound to declare for that injury also, without he chooses. This declaration for injury to trees, is in substantial conformity with the precedent in common use; 2, Ch. Pl. 869. We think the Common Pleas erred in adjudging it insufficient, and for that error reverse the proceedings since the making up the issue, with costs, and remand the cause for further proceedings.
GRAY v. COOPER.
Practice — trespass—possession—injury to trees.
A declaration in trespass for entering the plaintiff’s close, cutting down, injuring, destroying, and carrying away bis timber, and converting it to his own use, held good without an averment, that the plaintiff was in possession.
Trespass will lie"for injury to trees, &c., and to the fee without alleging the breaking, &c., of the close.
Ebbor to the Court of Common Pleas. The plaintiff declared *514below in trespass. There was a general demurrer to the declaration. On hearing, the court sustained the demurrer and gave a peremptory judgment for the defendant, refusing leave to amend. It is assigned for error that the court erred in both particulars.
G. Collings, for the plaintiff in error,
cited 1 Ch. Pl. 162, n. 3; 2 Ch. Pl. 869.
S. Brush, contra,
cited 1 Ch. Pl. 159, 327, 8, 9, 30.
Case Details
1 Wright 500
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