Chase, Ch. J. The Court are of opinion, that it; an action for the mesne profits, the plain!iff recovers damages for the use and occupation of the land, and that a recovery in such action is no bar to an action of trespass, for a trespass committed on the land during the said time for which the recovery was had for the mesne profils. The court are also of opinion, that the removing of the fence in this case is a trespass, unless it appears to the jury that such removal was necessary for using and cultivating the land, and was made for that purpose. The defendant excepted.
Verdict and judgment for the plaintiff; and the defendant appealed to the Court of Appeals. , The Coubt oe Appeals at June term, 1805., affirmed the judgment of the General Court.