announced the opinion of the court. It appears by the case, that one Samuel Hawkins, owning a piece of land, sold to the plaintiffs about 20,000 feet, board measure, of the standing pine timber, including one large pine tree ; and then sold the land to William Hawkins, reserving the timber sold to ■the plaintiffs, as aforesaid. The plaintiffs then purchased of said William Hawkins the residue of the pine timber on said lot; and the defendant cut and carried away the large pine tree. Prior to this, the plaintiffs had entered, and cut and carried away a part of the timber they had thus bought of said Samuel and William.
The court instructed the jury, that this showing did not place plaintiffs sufficiently in possession to enable them to maintain trespass upon the freehold. We consider this instruction incorrect.- — ■ The plaintiffshaving made the two purchases of timber, and gone on to the land, and cut a part, had as much the possession of the land, for the purpose of getting off this timber for their own use, within the time agreed, or within a reasonable time, as if they had owned the land. Though William Hawkins told the defendant he apprehended no difficulty in his cutting the pine tree, he also told him it belonged to the plaintiffs, and that he had himself no right to it; and also told the defendant, before he took the whole, that the plaintiffs said he must not remove the same. The *488own er of the land sets up no claim, and the defendant is a stranger to the tide. -This virtually decides the question of jurisdiction.
Fisk and Soule, for the plaintiffs. Richardson and Sheldon, for the defendants.The action is properly an action of trespass upon the freehold. The plaintiffs having recovered upon the third count only, makes no difference about the appeal, which brings up the whole action.
: Further, though trover might have lain for the logs that were cut; so will trespass also, and trespass upon the freehold. The appeal is expressly given by the statute, which gives jurisdiction of such-actions to a justice of the peace. The decision of the County Court sustaining the appeal, was correct; but, for the errors in their charge to the jury, the judgment is reversed, and a new trial granted.