#### *Thomas R. Puckett*v. *William S. Smith.*

One tenant in common of a Ferry may maintain an action on the case against liis co-tenant, to recover his share of the income of the Ferry, and damages may be assessed to the time of trial.

Wherever the injury is continuous, and continued after action brought, the plaintiff may recover the damages incurred after the commencement of the suit.

*27*Before*O’Neall, J. *at Abbeville, Fall Term,*1849.

This was an action on the case, for disturbance of the right of Perry.

The plaintiff was the owner of Swansey’s Ferry; two-thirds in his own right, under the charter granted in 1846, and one-third by virtue of a purchase from J. W. H. Johnson, to whom, with himself, the charter had been granted for ten years.

He (the plaintiff) became much involved in debt, and executions pressing him, he selected such portions of his real estate as he could best spare. By his directions, the Sheriff of Abbeville levied on and sold two-thirds of the Ferry called Swansey’s, over Saluda, and 15-|- acres of land appurtenant thereto.'

The plaintiff was present and assenting to the sale. It was bought on the 5th of February, 1849, by William S. Smith, for 1,315. The Sheriff’s deed was executed 1st March, 1849. On the 6th of February, the defendant took entire possession of the Ferry.

The plaintiff, soon after the sale, (in a week,) demanded possession of the Ferry — the defendant refused to give it up. The gross income of the Ferry was proved to be $800 per annum. The defendant was in possession at the trial. The plaintiff’s writ was issued the 28th of February, 1849.

The Circuit Judge thought the Sheriff could not legally seize and sell the Ferry ; that therefore the plaintiff was entitled to recover. He thought, however, and so told the jury, that he could only recover damages to the issuing of his writ, twenty-one days.

The jury found a sum greatly beyond such damage.

The defendant appealed and moved the Court of Appeals for a new trial—

1. Because no damages were proved for plaintiff.

2. Because the jury found damages to an excessive amount, and contrary to the proof.

3. Because the verdict was contrary to law and evidence.

*T Thompson,*for tlie motion, said,

there was a rule, and the jury were bound to follow it in assessing damages. Cited *Hambledon*v. *Yerre,*2 Saund. 169; 1 Ld. Raymond, 329 ; *Baker*v. *Bash,*2 Ld. Raymond, 1382 ; *Duncan*v, *Markley%*Harp. 276 ; *Hopkins*v. *Myers,*Harp. 56; *Ryan*v. Baldrick, 3 M’C. 498 ; *Richardso?i*v. *Dukes,*4 M’C. 156. As to the Ferry, cited 3 Kent Com. 458; 9 Stat. 349, sec. 10 ; 419, sec. 14; 488, sec. 23; 528, sec 15, and 607, sec. 2, and 11 Stat. 369, sect. 13; Ohio Rep. 322. *Ford v. Godbold,*2 Strob. 109 ; *Skinner*v. *Stouse,*4 Missour. Rep. 93, and 7 Iredell, 5.

*M Gowan,*contra,

said the levy and sale of the sheriff con*28veyed no title to the defendant. That the chartered privilege of a Ferry was a franchise, not necessarily connected with the land on either side ; *Peter*v. *Kendall,*6 B. & C. 703; 5 Comyn’s Dig. *Piscary: M Gowan*v. *Stark,*1 N. & M’c 387; *Gourdon*v. *Davis and Lehre,*1 Bail. 469*Morse*v. *Garner,*1 Strob. 514; *Stark*v. *Miller,*3 Miss. 470. To levy was to take actual possession. *Hageriy*v. *Wilder,*16 John. Rep. 288 ; *Handy*v. *Dobbin,*12 John. Rep. 220; and that the plaintiff was entitled to damages, not only to the issuing of the writ, but to the time of the trial; 10 Coke, 117; 4 Dallas, 139; 1 Treadway, 103 ; *Pepoon*v. *Clark,*1 Mill’s C. R. 141.

*Curia, per*Frost, J.

The jury found for the plaintiff one-third of the gross income of the Ferry, from the time the cause of action accrued, to the trial. This is the full extent of the plaintiff’s just claim. The only question which it is necessary to decide is, whether, in this action, the plaintiff can recover more than his share of the income of the Ferry, which the defendant received before the commencement of the suit. In *Pepoon*v. *Clark,*which was an' action of ravishment of ward, to establish the freedom of a slave, by the verdict, hire was allowed to the time of trial. Johnson, J., delivering the opinion of the court, says, “ whenever the injury is in its nature continuous, there can be no question that the party injured is entitled to recover for all damages previous to the trial. If it were otherwise, for injuries of this character the action must be brought for every hour of its continuance; or the remedy would not be adequate, and thus create that multiplicity of actions which the law so much abhors.” This rule governs other forms,of action. In trespass to try title, in trover, in assumpsit on interest-bearing demands, damages are recovered to the time of trial. A different rule might be adopted, but it would be arbitrary. The only difference would be that if damages, after the commencement of the action, cannot be recovered, a second suit would be necessary; but if they are allowed to the time of trial, a complete remedy is afforded by the judgment for all the previous injury which the plaintiff had sustained. The case of *Duncan*ads. *Markley*is not in conflict with *Pepoon*v. *Clarke.*There the defendant put a dam across a navigable creek ; which was a public nuisance. In consequence, the plaintiff sustained some special injuries to his mill, for which the action was brought. Evidence was admitted of such injuries after the commencement of the suit. A new trial was granted, because there was no necessary connexion between the injuries sustained before and after the action was brought. For the public nuisance, which was continued, the plaintiff had no action, but only for any particular injury he had suffered.

By the. Act of 1827 every charter of a bridge, ferry or turn*29pike road shall be in fee simple, and shall be held by the grantees, as real estate. The plaintiff is tenant in common with the defendant, of the Ferry. By the Statute 4 Ann, c. 16, actions of account may be maintained by one tenant in common against the others, as bailiff, for receiving more than comes to his share and proportion: In a writ of account, the first judgment is, *quod*computet; and on such áccount all articles of account, though incurred since the writ, shall be included, and the whole brought down to the time when the auditors make an end of the account. By the Statute of Gloucester, damages are given in real actions, on a writ of entry to recover the specific lands. The Statute gives damages generally, without saying till that time; yet the construction on it has been, that they shall compute all the damages which have arisen *pendente lite.*W here a man is accountable for money or goods, case lies against him, or account, at his election.

The motion is dismissed.

Evans, Wardlaw, and Withers, JJ. concurred.

*Motion refused.*