#### Enoch Cobb *v.*Grady Herring.

Where, upon the case stated, the judgment of the court below xS correct, points which were intended to be presented do not arise, and will not be examined ; as where in trespass, the plaintiff was in possession, and the defendant had no title, defects in that of the former will not be noticed, he having recovered upon his possession.

Trespass q,uarb cuausum eregit. Plea — JVbi guilty, and *liberum tenementurn.*The plaintiff claimed under one *Whitfield,*to whose title the case stated several objections, which it is unnecessary to mention. *Whitfield*had been in possession for many years, and in January 1830. sold to the plaintiff, who took immediate possession, but no conveyance was stated in the case to have been made by *Whitfield*to him. The defendant offered no evidence of title in himself. The trespass complained of was, in entering an enclosure and *383throwing down a fence. Martin, Judge, before whom the cause was tried at Wayne, on the last spring circuit, after charging the jury as to the alleged defects in the title of *Whitfield,*informed them, that if the plaintiff had actual possession, and not constructive possession merely, and the defendant entered upon him, in the manner st ¡ted in the case, without even a color of title, they ought to find for the plaintiff. A verdict was returned accordingly, and the defendant appealed.

*W. G. Stanly*and *J. H.*Bryan, in opening the case, were asked by Ruppin, Judge, if the questions intended to be presented as to *Whitfield’s*title, were open upon the Case certified with the record? Upon a clear intimation of the opinion of the court, they gave up the cause.

*Monlecai,*for the plaintiff.

Ruppin, Judge, —

.Most of the points on which the jury were instructed, would have been material if the action had been brought by *Whitfield,*and had turned on his having a better title than the defendant. But they are out of the present *case;*because it is immaterial whether the title was in *Whitfield*or not, since no conveyance is stated from him to the plaintiff. The right of the present plaintiff to recover, must therefore have depended solely on his actual possession, at the time of the trespass committed ; and the judge properly said upon that point, that if he had not such possession, he could not *recover;*but if he had, then without title, he had a right to a verdict against the defendant, who was a mere wrong doer.

It may be possible, that it was intended to take the «pinion of the court upon *Whitfield’s*title, and to that end, to state a conveyance from him to *Cobb,*which would have brought that title in issue, in case the plaintiff had not the actual possession. But a case is not made to call for that opinion; for it is only stated that *Whitfield*sold to *Cobb,*but whether he conveyed, or by what species of conveyance, does not appear. As therefore the jury have found a verdict for the plaintiff, which, in the case stated, and under the instructions given by the *384judge, they could have done upon the single ground of las own possession, and upon that alone, we must presume, that such possession was proved to them; and if so, tiie verdict and judgment was right. The case as to that, states, that the plaintiff purchased from *Whitfield*in January 1830, arid the trespass was on the 2d February, and that the plaintiff “ had been in possession since the time he purchased.” If this means “ ever since,” the plaintiff was entitled to recover ; and since the verdict under this charge, we must take it to mean that.

Per Curiam. — Judgment afeirmed.