Maxwell v. Maxwell , 31 Me. 184 ( 1850 )

Wells, J.

This case comes before us by exceptions from the District Court. Upon the evidence introduced by the plaintiff, the Judge of that court ordered a nonsuit.

The defendant contends that the nonsuit was properly-ordered, because the evidence does not support the declaration. The declaration alleges that the defendant cut down and carried away spruce and maple trees, and the number of them, and the quantity of wood made from them. The proof is, that the defendant procured to be cut twenty-four cords of wood, and removed a portion of it, but there was no proof of the kind of wood, which was cut.

Must the plaintiff fail of recovering unless he can prove the kind of wood cut ?

In declarations upon contracts, they must be proved as laid. Bristow v. Wright, Dough 665; Robbins v. Otis, 1 Pick. 368. But both in cases of contracts and torts, if the whole of an averment may be stricken out, without destroying the plaintiff’s right of action, it is not necessary to prove it. 1 Chitty on Plead. 307 and 372; Gwinnet v. Phillips, 3 T. R. 643; Peppin v. Solomons, 5 T. R. 496; Williamson v. Altison, 2 East, 446.

In an action of trover for a note, where an unnecessarily particular description of it is given in the declaration, an entire failure of any proof, as to such needless averments, will not defeat the action. Ewell v. Gillis, 14 Maine, 72.

By statute, chap. 129, § 7, the defendant is made liable to the plaintiff for cutting down or carrying away any trees, timber, wood or underwood, standing or lying on the lands held in common, while a petition is pending for a partition of the premises. The statute does not require a description of the kind of trees, and that averment might be stricken out of the declaration without impairing the plaintiff’s right to recover. So also the allegation of the trees need not be retained, for the plaintiff would be entitled to recover upon the other averment of “ fifty cords of wood,” &c. The proof therefore does support that part of the declaration, which is necessary to be proved.

The objection as to the form of action cannot prevail. Pending the petition for partition, the acts of the defendant were made by statute an unlawful interference with the soil and freehold of the plaintiff, and by the ninth section of the same statute such acts are denominated a trespass. If the defendant had a right at common law to cut down and carry away trees or wood from the land held in common, without being a trespasser, that right was suspended by the statute during the pendency of the petition for partition. Amd the form of action is to be adapted to the nature of the injury, which in this case related to the realty, and was produced by acts illegal and directly injurious. Trespass quare clausum appears to be the most appropriate action. Maddox v. Goddard, 15 Maine, 218. The statute of 1821, § 2 and 3, provided an action of trespass for such injury, which relating to real estate, must be understood to mean trespass quare clausum. Hubbard v. Hubbard, 15 Maine, 198.

It is said that the trespasses are not proved to have been committed during the pendency of the petition, but by the facts exhibited, they were so committed while the petition was pending.

By § 8, of statute c. 129, the damages may be recovered by any one of the co-tenants, without naming any one but the plaintiff, when the action is founded on § 7, against one of the tenants in common. The seventeenth section relates to actions broúght by tenants in common, co-parceners or joint-tenants, against strangers to the common property, and doés not affect the present action.

The parties have agreed, that if this court shall be of opinion that the nonsuit should be taken off, and that the action can be maintained upon the evidence in the case, that the court may assess the damages and enter final judgment.

The nonsuit is accordingly taken off and judgment is to be rendered for the plaintiff, the defendant to be heard in damages.