Nelson v. Nelson ( 1856 )

Metcalf, J.

By the bargain between Donelson and the defendant, and Donelson’s labors under that bargain, the wood which he cut became his property; Nettleton v. Sikes, 8 Met. 34; and he might as well transfer that property, as any other, to whom he pleased. He did transfer a part of it to the plaintiff; and whilst it was the plaintiff’s, the defendant burnt it. He is therefore answerable to the plaintiff for its value. We say he burnt it whilst it was the plaintiff’s, because it does not appear that the time within which it was to be taken from the land had expired before it was burnt, nor that it was to be forfeited to the defendant, if not taken off within that time.

This view of the case makes it unnecessary to consider whether the plaintiff acquired from Donelson the right to enter upon the defendant’s land and take off the wood with his own hands, or whether the license so to do, given to him by the defendant, was revocable. If both these points were adjudged in the defend ant’s favor, still he would have no defence to this action.

Exceptions overruled.