Aikin v. Buck , 1 Wend. 466 ( 1828 )

By the Court,

Sutherland, J.

The plaintiffs shewed a sufficient possession of the property, to enable them to maintain the action. The logs were actually received and marked by the agent of the plaintiffs, and left upon the bank of the river Au’Sable, upon land belonging to, or claimed by the Peru Iron Company. The plaintiffs had such a right to the logs, prima facie, as to be entitled to take them into their actual possession, whenever, they pleased ; and this is sufficient to maintain the action. (8 Johns. R. 432. 13 Johns. R. 141, 561.)

The "defendant entirely failed in his defence. The logs were cut on the north end of lot 210, in Maule’s patent, and the defendant proved a possession of a dwelling house, and the working of an ore bed on the south end of the lot, by himself and the Peru Iron Company, and contends that that gave him or the company, constructively, the possession of the whole lot. In this he was mistaken. He showed no deed for the lot; his. possession, therefore, was confined to the land actually occupied by him, or the company, and cannot be extended by construction to a single acre beyond it. The deed from the sheriff of Clinton county, to Daniel Cady, and to the defendant, for lot No. 210, were properly excluded by the judge. The one bore date in July, 1827, and the other in April, 1826. The logs were purchased by the plaintiff’s agent in the fall of 1825, or the winter of 1826 ; and having been removed from the lot, the subsequent sale of it would not entitle the purchaser to follow and reclaim them. Besides, as to the deed to Cady, it was inadmissible, because, in trespass de bonis asportatis, the defendant cannot shew property in a stranger, though it is otherwise in trover. (11 Johns. R. 132, 529. 13 Johns. R. 284.)

The deeds were also inadmissible, on the ground that the judgments and executions under which they purported to be given, were not proved or given in evidence in any manner. The sum which the judge directed the jury to find, had undoubtedly been proved to be the value of the logs taken.

The motion for a new trial must therefore be denied.